Smt. Turlapati Bandla Aruna vs Katuri Nagamma Died As Per Lrs
2021 Latest Caselaw 4014 AP

           HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI

                   MAIN CASE No.A.S.No.2073 of 2018


                                PROCEEDING SHEET

Sl.                                                                           Office
                                         ORDER

No      DATE                                                                  Note
09    8.10.2021 RRR, J
                                  I.A.No.1 of 2021

A brief review of the facts are necessary before this application is considered.

The 1st petitioner lost her first husband at the age of 16 while she was pregnant. She delivered a son after the demise of her first husband. This son, who is the 2nd petitioner herein, was found to be mentally unsound from his birth. The 1st petitioner had subsequently remarried and gave birth to two more children. Since the demised husband of the 1st petitioner was the only child of his parents, the 2 nd petitioner continued to live with his paternal grand parents. The 1st petitioner claims that she also continued to live with her in-laws till the demise of her in-laws. However, this statement is disputed by the respondents. Be that as it may, the mother-in-law of the 1st petitioner passed away on 10.02.2010 and the father-in-law died instate on 18.08.2010.

2. It is the case of the petitioners that after the demise of the father-in-law of the 1st petitioner they came to know that a sale deed had been executed by the father-in-law of the 1st petitioner in favour of the 3rd respondent herein in relation to items 7 and 8 of the suit schedule property and a gift deed had been executed in relation to Items 1 to 5. According to this gift deed, the property was to be held for the benefit of the 2nd petitioner during his life time and subsequently the vested reminder was to devolve on the 2nd

respondent, after the lifetime of the 2nd petitioner herein. Apart from this, the deed of gift also directed that the 1st defendant in the suit would be representing the 2nd petitioner in relation to the said property. It appears that the 1st defendant passed away during the pendency of the suit in the year 2016 and a memo had been filed that the 2nd petitioner would be her sole legal heir.

3. It may also be recorded that it is the admitted case on both sides that after the demise of her father-in-law, the 1st petitioner had obtained custody of the 2nd petitioner and the 2nd petitioner continues to live with the 1st petitioner. The petitioners, being aggrieved by the execution of the deed of sale and the deed of gift in favour of the 3rd respondent, had filed O.S.No.3 of 2012 before the XIII Additional District Judge, Narasaraopet, which was subsequently transferred to the X Additional District Judge, Gurajala, and renumbered as O.S.No.28 of 2013. The relief sought in this suit was for a declaration of title over the suit schedule property which comprises of 10 items and for a permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiffs. The 1st and 2nd petitioners were arrayed as plaintiffs 1 and 2 in the suit. The respondents 2 and 3 herein were arrayed as defendants 2 and 3 in the suit. As observed earlier, the 1st defendant in the suit had passed away during the pendency of the suit itself.

4. The trial Court by judgment and decree dated 03.08.2018 dismissed the suit holding that the petitioners were not in possession of the suit schedule property and that they were not able to demonstrate that the deed of sale and deed of gift could not have been executed by the father-in-law of the 1st petitioner on the ground that the said properties are joint family

properties. Aggrieved by the said judgment and decree the petitioners have filed the present appeal before this Court.

5. The petitioners have now filed the present application for appointment of a receiver of the suit schedule property on the ground that the 2nd petitioner, who is entitled to the said properties, was not being given any part of the income in the said property and that the 2nd and 3rd respondents were denying the rightful income from these properties to the 2nd petitioner, who is in requirement of continuous medical attention for which the 1st petitioner had to raise loans to take care of the expenditure for such medical treatment.

6. Heard Sri M. Chalapathi Rao, learned counsel for the petitioners and Sri N.V.R.Amarnath, learned counsel for the 2nd respondent.

7. While it is true that the suit had been dismissed on the ground that the petitioners could not demonstrate or prove their contentions that all the 10 items in the suit schedule are ancestral properties and that the said properties could not have been alienated by the father-in-law of the 1st petitioner. However, the fact remains that even according to the respondents, the deed of gift, dated 20.07.2010, executed by the father-in-law of the 1st petitioner, reserves a life time interest in favour of the 2nd petitioner, who is entitled to the usufruct of the agricultural lands contained in items 1 to 5 of the suit schedule. The contention of the petitioners is that the 2nd petitioner has not been able to obtain any income from these lands on account of the 2nd respondent obstructing the petitioners from obtaining any income from these lands. Similarly, an allegation is made against the 3rd respondent in respect of items 7 and 8. It is also to be noted that the trial

Court has not given any finding as to the ownership of items 6, 9 and 10 of the suit schedule.

8. In view of the fact that no counter affidavit has been filed by either the 2nd or 3rd respondents, it would have to be accepted that the petitioners have not been receiving any income from these lands. While the fact that the 2nd petitioner is entitled to all the income from items 1 to 5 of the suit schedule is an admitted fact on all sides, the same cannot be said in relation to items 7 and 8, at this stage. In view of the dismissal of the suit filed by the petitioners, the status of the 3rd respondent as owner of items 7 and 8 of the suit schedule cannot be set aside unless and until there is reversal of the judgment and decree of the trial Court.

9. Another issue that would arise in the present application is the fact that the suit has been a suit for declaration of title and for permanent injunction on the ground that the petitioners are in possession of the suit schedule properties. The question that arises is whether the order of appointment of a receiver can be granted in case of an application for injunction.

10. This issue has already been considered by the Hon'ble High Court of Karnataka in Sree Venkataramana Temple Board of Education and Others v. C. Manjunatha Kamath and Others (AIR 1974 KAR 59) and by the erstwhile High Court of Andhra Pradesh in Ravi Lakshmaiah v. Nagamothu Lakshmi S. Ramadoss, Receiver (AIR 1971 AP 380) wherein a consistent view had been taken that an application for appointment of receiver in a case of this nature is maintainable.

11. In the said circumstances, keeping in view the interests of the 2nd petitioner, who is not in a

position to take care of himself and requires the assistance of the 1st petitioner and in view of the fact that the deed of gift itself requires that the income of items 1 to 5 of the suit schedule should be given to the 2nd petitioner, it would be appropriate to appoint a receiver to take charge of items 1 to 5, 6, 9 and 10 of the suit schedule for the benefit of the 2nd petitioner and to manage these immoveable properties and to make over the income obtained from these properties to the 1st petitioner to enable her to look after the 2nd petitioner.

12. On the question, who should be the receiver, it would be appropriate to consider the fact that the immoveable properties in items 1 to 5, 6, 9 and 10 of the suit schedule would not be yielding any income, which would be sufficient meet the requirements of the 2nd petitioner and also left over sufficient amounts to be paid as remuneration to the receiver. Further, the 1st petitioner, who is the mother of the 2nd petitioner, would be an appropriate person to be appointed as the receiver as she would have the best interest of the 2nd petitioner at heart.

13.In the circumstances, the 1st petitioner is appointed as the receiver, for items 1 to 5, 6, 9 and 10 of the suit schedule, with the following directions:

1. She is conferred with all such powers as are necessary for the management, protection, preservation, improving of the property apart from collection of rents and profits thereof, to be used for the benefit of the 2nd petitioner alone.

2. She shall take possession of the aforesaid immoveable properties and in the event of any obstruction by any person including the 2nd respondent, it would be open to the receiver to take the assistance of the police, if necessary.

3. Upon any such application is made by the receiver for police assistance, the concerned police officials shall give all necessary assistance to the receiver for taking possession of the above immoveable properties and for further protection of the possession of the receiver over the these properties.

4. The receiver shall not receive any remuneration. However, the receiver shall be entitled to defray her expenditure, as receiver, out of the income obtained from the said immoveable properties.

5. The receiver shall either cultivate or utilize the said properties directly or lease them out to the interested persons at the best price that the receiver may obtain.

6. The receiver shall furnish annual accounts of income and expenditure and the money spent on the 2nd petitioner to the X Additional District Judge, Gurajala, in O.S.No.28 of 2013.

_______ RRR, J Js.