Kerala High Court
Jaseela vs Rejila Beevi @ Rejila on 8 April, 2025
FAO NO.150/2024 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
TUESDAY, THE 8TH DAY OF APRIL 2025 / 18TH CHAITHRA, 1947
FAO NO.150 OF 2024
ARISING OUT OF THE ORDER DATED 04.12.2024 IN
I.A.NO.4/2024 IN OS NO.43/2024 OF SUB COURT, ATTINGAL
APPELLANTS/COUNTER PETITIONERS 1 & 2/DEFENDANTS 1 & 2:
1 JASEELA
AGED 37 YEARS
W/O.MUBASH, HAJARA MANZIL, ANCHAL P.O,
THAZHAMEL, ANCHAL VILLAGE, PUNALUR TALUK,
KOLLAM DISTRICT, PIN - 691305
2 MUBASH
AGED 47 YEARS
S/O.IRAHIM KUTTY, HAJARA MANZIL,
ANCHAL P.O, THAZHAMEL, ANCHAL VILLAGE,
PUNALUR TALUK, KOLLAM DISTRICT, PIN - 691305
BY ADVS.
R.SUNIL KUMAR
A.SALINI LAL
JINU P. BINU
J.M.DEEPAK
RESPONDENTS/PETITIONER & COUNTER PETITIONERS 3 TO 7/
PLAINTIFF & DEFENDANTS 3 TO 7:
1 REJILA BEEVI @ REJILA
AGED 39 YEARS, W/O.SALIM, SALIM MANZIL,
PLOT NO.9, T.C.41/1548, SREENAGAR,
MANACAUD P.O, MANACAUD VILLAGE,
THIRUVANANTHAPURAM DISTRICT, PIN - 695009
FAO NO.150/2024 2
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2 REJIMON @ REJI
AGED 40 YEARS, S/O ABDUL VAHID, "CHINAB HAVELI',
VETTIYARA P.O, NAVAIKULAM VILLAGE, VARKALA TALUK,
THIRUVANANTHAPURAM DISTRICT, PIN - 695141
3 JAMEELA
AGED 37 YEARS, W/O HARIS, "ANUGRAHA",
KADAMBATTUKONAM, NAVAIKULAM VILLAGE,
VARKALA TALUK, PIN - 695141
4 SOUDA BEEVI
AGED 66 YEARS, W/O ABDUL VAHID, 'ANUGRAHA"
KADAMBATTUKONAM, NAVAIKULAM VILLAGE,
VARKALA TALUK, PIN - 695141
5 HARIS
AGED 39 YEARS, S/O.RAJAN, ANUGRAHA"
KADAMBATTUKONAM, NAVAIKULAM VILLAGE,
VARKALA TALUK, PIN - 695141
6 FAIZAL
FEDERAL BANK MANAGER, PARIPPALLY BRANCH,
KOLLAM DISTRICT, PIN - 691574
BY ADVS.
P.A.AYUB KHAN, R1
T.A.RAJEEV, R2
AMRITH M.J., R3 & R4
NIJOY P.K., R5
JOBI.A.THAMPI, R6
NIJI K.SHAHUL(K/1158/2010)
ARYA A.R.(K/1666/2018)
C.PRABITHA(K/528/2009)
REJOICE B.CHEMBAKASSERIL(K/941/2015)
RAHUL T.(K/003860/2024)
ISABELL MANOJ(K/003266/2023)
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY
HEARD ON 24.01.2025, THE COURT ON 08.04.2025 DELIVERED THE
FOLLOWING:
FAO NO.150/2024 3
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JUDGMENT
Dated this the 08th day of April, 2025
The appointment of a Receiver in a suit for partition is
challenged in this appeal.
2. The appellants are defendants 1 and 2 in O.S.No.43 of
2024 before the Subordinate Judge's Court, Attingal. The 1 st
respondent is the plaintiff and respondents 2 to 6 are the defendants
3 to 7 in the said suit.
3. The 1st respondent (plaintiff) had filed I.A.No.4 of 2024 in
O.S.No.43 of 2024 seeking to appoint a Receiver to manage the
business in plaint A schedule property and collect rent. The said I.A.
was allowed by the Sub Court, Attingal vide order dated 04.12.2024.
The Official Receiver attached to the District Court,
Thiruvananthapuram, was appointed as the Receiver. Appellants
challenge the said appointment as illegal and unsustainable.
4. O.S.No.43 of 2024 from which the order impugned herein
emanates is one among the many suits that are filed, disposed and
pending at the instance of the family members of late Abdul Vahid.
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The said suits concern the substantial properties left by late Abdul
Vahid and reflect the internecine disputes between the surviving
family members comprising the wife, children of late Abdul Vahid, as
well as third parties pertaining to said properties. The present suit in
which the partition of plaint schedule A property was sought and a
Receiver had been appointed, concerns the land having an extent of
54.06 Ares belonging to late Abdul Vahid situated in Navayikulam
Village, on which an ice plant and wholesale fish market styled as
ABV & Co. are situated.
5. Abdul Vahid died on 04.04.2023. On 05.04.2023, a suit for
injunction, O.S.No.156 of 2023, was filed by the 1 st appellant,
daughter of late Abdul Vahid before the Munsiff Court, Varkala,
against 3rd and 5th respondents, who are the daughter and son-in-
law of late Abdul Vahid. The said suit was later transferred to the
Sub Court, Attingal and re-numbered as O.S.No.86 of 2024.
Subsequently, O.S.No.40 of 2023 was filed before the Sub Court,
Attingal, by respondents 3 and 4, daughter and wife of late Abdul
Vahid, against the 1st appellant and 1st and 2nd respondents claiming
ownership of specific properties based on an oral Will by late Abdul
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Vahid. Thereafter, O.S.No.51 of 2023 was filed by the 1 st appellant,
arraying respondents 1 to 5 as defendants, seeking title and
possession based on two settlement deeds of 2023. The 2 nd
respondent, who is the son of late Abdul Vahid, filed a counterclaim
in the said suit claiming possession. Thereafter, purportedly due to
the cruelty meted out by the appellants upon the 4 th respondent,
wife of late Abdul Vahid, the 1 st respondent has filed O.S.No.43 of
2024, seeking partition of properties and for a declaration that the
two settlement deeds are not binding on her. It is in such a back
drop that the Sub Court proceeded to consider I.A.No.4 of 2024 filed
in O.S.No.43 of 2024 seeking the appointment of Receiver.
6. The learned Sub Judge vide the impugned order allowed
I.A.No.4 of 2024 and appointed the the official Receiver to manage
the relevant properties and run the business inter alia holding that
the facts and circumstances disclose a strong prima facie case in
favour of the 1st respondent (plaintiff) and that it would be unjust to
allow the 1st appellant to continue realising the entire income from
the plaint A schedule till the disposal of the suit. As regards the
settlement deed No.563/2023 (Ext.A1) relied on by the 1 st appellant,
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the learned Sub Judge reached a prima facie conclusion that the
signature therein is totally different from the signature of late Abdul
Vahid in other documents and that a bare comparison by any
prudent person can only lead to such a conclusion. The learned Sub
Judge had also taken note of the fact that none of the parties had
disputed that late Abdul Vahid had executed settlement deed
No.1499/2014 and that thereafter he had unilaterally cancelled the
same. The validity of the said cancellation, it was concluded, is a
matter which is to be adjudicated upon, and till then, the
appointment of a Receiver was required and justified. It was thus
reasoned by the learned Sub Judge that in the facts of the case the
harsh remedy of appointing a Receiver is required. Such
appointment was also found to be in the interest of justice so as to
protect the interests of all the stakeholders. The appellants assail
the said appointment of the Receiver by the Sub Judge in this FAO.
7. Detailed counter affidavits/objections have been filed by
respondents 1 to 4. Annexures R1 (1) to R1 (10) have been
produced and marked by the 1st respondent to buttress their
contentions while the 2nd respondent has relied on documents
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produced and marked as Exts.R 2 (a) to R2 (m).
8. Heard Sri.P.B.Krishnan, Senior Advocate, instructed by
Sri.R.Sunil Kumar, Advocate for the appellants, Sri.P.A.Ayub Khan
Advocate, for the 1st respondent, Sri.T.A. Rajeev, Advocate for the
2nd respondent, Sri.Amrith M.J. for 3 rd and 4th respondents,
Sri.P.K.Nijoy, Advocate for the 5 th respondent and Sri.Jobi A.
Thampi for the 6th respondent.
9. The learned Senior Counsel appearing for the appellants
contended that the impugned order is illegal, against the law as well
as the facts of the case and is liable to be interfered with. It is
contended that the impugned order was rendered without proper
appreciation of the documents produced from the side of the
appellants, which numbered 26, and none of the said documents,
except one (Ext.A1), had been considered or discussed by the
learned Sub Judge. Though it is a basic tenet required to be legally
substantiated before proceeding to appoint a Receiver that the 1 st
respondent (plaintiff) should independently prove her right over the
plaint schedule property, the learned Sub Judge failed to note that
the 1st respondent had miserably failed in this respect. Not only had
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the 1st respondent not proved her title, she had not even pleaded
any right over the plaint A schedule property. To make it even more
legally difficult for the 1st respondent, she had very specifically
relinquished her claim over the relevant property or rather had
admitted that she had no right over the plaint A schedule property in
her pleadings in an earlier proceeding. This was done by her in the
written statement, which she had filed in O.S.No.51 of 2023 initiated
by the 1st appellant. This most crucial document was overlooked by
the Sub Judge. The said contention, which had been put forth by the
appellants, was not even mentioned by the Sub Judge in his order,
nor was the relevant document cared to be marked in evidence. It is
contended by the learned Senior Counsel that the learned Sub
Judge also committed a very basic error in failing to take note of the
arrangement that had been put in place by late Abdul Vahid while
he was alive for running the ice plant that is situated in the plaint
schedule property. The ice plant, which was a business which
required daily investment, was being run by late Abdul Vahid by
executing a partnership deed with two others from outside the
family. Subsequent to the death of Abdul Vahid, the appellants
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entered into a partnership deed with the said persons and has been
conducting the ice plant. The said aspect was not appreciated by the
Sub Court, and even the partnership deed produced by the
appellants was not marked. Insofar as the partnership business in
the plaint schedule property was being run with the help of partners
who were not members of the family, they were necessary parties to
the petition. However, overlooking the specific contention, pleaded
and argued in this respect, the learned Sub Judge appointed a
Receiver when the application for such appointment itself was not
maintainable. The 1st appellant holds the licence for operating the
ice plant situated in the plaint schedule property, and she also
possesses the FSSAI licence to run the same. The certificate issued
by the Pollution Control Board had also been issued in the name of
the 1st appellant. It had been the specific contention of the appellants
that A schedule property constitutes their absolute property and it
was not partible. The learned Senior Counsel contended that the
Sub Court failed to appreciate the cardinal principle that appointing a
Receiver is an extreme step that should be undertaken with great
caution and circumspection. The fact that the Receiver can be
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appointed only when there is an imminent danger to the property
was also overlooked. The Sub Court did not take proper note of the
fact that there was no dispute regarding the conduct of the ice plant
and the possession of the ice plant had been with the 1 st appellant
all along, and the business of the ice plant was being actively
conducted by her. The 1st appellant could not have been deprived of
such possession by appointing a Receiver. Thus, the cardinal
principle that a person who is in possession of the property cannot
be dispossessed by appointing a Receiver was overlooked by the
Sub Court. The impugned order is fit to be set aside on the said
count alone. The Sub Court ought to have appreciated the fact that
in O.S.No.40 of 2023, which is a suit for partition between the same
parties and pending consideration before the same court, four
properties had been scheduled as partible properties, whereas in
O.S.No.43 of 2024 in which Receiver had been appointed vide the
impugned order, only two properties belonging to the appellants had
been scheduled. The said very fact itself would reveal that
O.S.No.43 of 2024 had been filed and was being pursued by the 1 st
respondent with oblique motives. As regards the contentions put
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forth on the basis of the earlier settlement deed executed by late
Abdul Vahid and which was subsequently cancelled, the learned
Senior Advocate vehemently contended that the same was only a
gift deed which was not accepted and hence was cancelled soon
after its execution within seven months. Moreover, even assuming
that the cancellation deed is held to be void by the court in the
separate pending litigation, the plaintiff who is not the beneficiary
under the said settlement deed cannot aspire to obtain any right
over the properties. This crucial aspect, which evidenced the total
lack of legal right in the 1 st respondent to seek appointment of a
Receiver, was also overlooked by the Sub Court. The learned
Senior Counsel also strenuously challenged the conclusions arrived
at by the Sub Court based on the signature in the Ext.A1 document,
terming that the same differs from other documents. It was
contended that the trial court had not specifically stated as to which
document had been compared for reaching such a conclusion, and
had overlooked the fact that on the very next day, after executing
Ext.A1 settlement deed in favour of the appellants, late Abdul Vahid
had proceeded to the District Collector's Office in connection with
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the acquisition of property regarding National Highway and had
affixed a signature to the said document, which is very much similar
to that in Ext.A1. Thus it is not as if that Abdul Vahid was in a coma
or even a condition where he couldn't move around. Even though
the appellants had produced the said document after obtaining the
same under the Right to Information Act, the Sub Court had failed to
appreciate the same and did not even choose to mark the said
document. Bank account transactions revealing late Abdul Vahid
transferring money to the 1 st appellant through cheques evidence
that he was capable of reasoning and also physically able to do
such transactions. The 1 st respondent (plaintiff) had thus failed to
independently prove her right over the Plaint A schedule property
for appointing a Receiver. She had not proved her title, nor had she
pleaded any right over the plaint schedule property. The earlier
written statement filed by her in O.S.No.51 of 2023 contained her
own admission that she had no right over the plaint schedule
property. All these crucial aspects were overlooked by the learned
Sub Judge. Reliance is placed on the dictum laid down in
T.Krishnaswamy Chetty v. C.Thangavelu Chetty and others [AIR
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1955 Mad 430]; S.Saleema Bi. v. S.Pyari Begum and another
[AIR 2000 SC 3513]; Mrs.S.Karpagam v. R.Shanmugam [2000
Mad LJ (2) 768] and in Paramanand Patel (Dead) by L.R. and
another v. Sudha A. Chowgule and others [2009 (2) KLT Suppl.
684 (SC)] and K.Sandhya v. K.K.Sivakumar [2015 SCC OnLine
Ker 36512], to buttress the contentions put forth and it is submitted
that the impugned order appointing a Receiver may be set aside.
10. Per contra, the learned counsel appearing for the 1 st
respondent contended that the FAO is not maintainable either in law
or on facts and that the attempt was to bypass the remedy available
by approaching the District Court. It is also contended that the
appellants had started to set up another fish market adjoining the
scheduled properties in order to harm the present fish market
functioning on the plaint schedule properties, which had devolved on
the legal heirs of late Abdul Vahid. The contention that the
appellants are exclusively managing the ice plant and fish market is
vehemently refuted, and it is stated that the appellants had not
invested any amount in the development of the fish market. The
learned counsel terms the purported licences and certificates relied
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on by the 1st appellant as acquired through unethical means with the
help of political leaders and forged documents. It is contended that
the same does not negate the rights of the other legal heirs of late
Abdul Vahid. The claim that the appellants have a valid licence to
operate the ice plant is termed to be false, and the licence had all
along been in the name of late Abdul Vahid and the same had
expired. As regards the disclaimer of rights in the written statement
filed by the 1st respondent in O.S.No.51 of 2023 and heavily relied
on by the learned Senior Counsel to contend that the said admission
takes away the prima facie right of the 1st respondent to seek
appointment, it is contended by the learned counsel for the 1 st
respondent that the same was against the instructions placed by her
with her lawyer and the said error already stands rectified. Reliance
is placed on the dictum laid down in Veena Singh (dead) through
LR v. District Registrar and another [2022 KHC 6530] wherein it
has been held that interpretation of the term ' execution' under the
Registration Act has to mean that a person has signed a document
after having fully understood it and consented to its terms. Reliance
is also placed on the dictum in Kasturi Bai and others v. Anguri
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Chaudhary [(2001) 3 SCC 176]; Mary and others v. Biju
Sebastain [2010 (3) KHC 189]; Jambagavalli Ammal v.
Govindaraja Kandiar and another [AIR 1980 Mad. 103];
K.P.M.Saheed v. Aluminium Fabricating Company [1985 KLT
991]; and Kamal Chaudhary and another v. Rajendra
Chaudharay and others [1976 KHC 2445].
11. The learned counsel appearing for the 2 nd respondent
submitted that late Abdul Vahid and his second wife, viz., the 4 th
respondent, had jointly executed Ext.R2 (a) settlement deed
No.1499 of 2014 by virtue of which they had settled the petition
schedule A property, including the ice plant and fish market, in
favour of the 2nd respondent. It is contended that ever since the said
settlement deed had been executed, the 2 nd respondent had been in
the ownership and possession of item No.1 properties of Schedule 1
of the settlement deed. However, later on 28.03.2015, the said
Settlement deed was unilaterally cancelled by its executants by
executing Ext.R2 (b) cancellation deed bearing No.533 of 2015
without the knowledge or concurrence of the 2 nd respondent.
Subsequently, O.S.No.51 of 2023 was filed by the 1 st appellant
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before the Sub Court, Attingal, against all the respondents seeking a
decree of declaration of title and consequential prohibitory injunction
staking a claim that late Abdul Vahid had executed a settlement
deed No.563/2023 in her favour pertaining to the relevant properties.
It is contended that the cancellation of the settlement deed
unilaterally is per se illegal and has no legal sanctity and support,
and that the 1st appellant cannot claim any title or right over the
plaint schedule property on the strength of the settlement deed
No.563/2023. It is also contended that the 2 nd respondent is entitled
to procure a declaration that the settlement deed No.563/2023 is not
binding on him and on the plaint schedule property. He has hence
filed a counterclaim Ext.R2 (e) in O.S.No.51 of 2023 inter alia
staking his claim over the properties. The 2 nd respondent has also
filed O.S.No.218 of 2023 before the Munsiff Court, Varkala, seeking
a perpetual prohibitory injunction against the 1 st appellant with
respect to the relevant properties. The principal thrust of the
contentions of the 2nd respondent thus is that the cancellation deed
whereby the earlier settlement deed No.563/2023 had been
cancelled is not sustainable in law. Reliance is placed on the dictum
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laid down in Arun C.A. v. Inspector General Department of
Registration, Vanchiyoor [2024 KHC Online 7254], and it is
contended that unilateral execution of a cancellation deed to cancel
the gift is impermissible under the Muslim law. It is submitted by the
learned counsel for the 2nd respondent that though the appointment
of a Receiver was an opportunity to amicably settle the family
issues, the appellants are not amenable to the same, and it is
alleged that on the very next day of the impugned order, the
appellants had with the help of some anti-social elements
trespassed into the ice-plant and forcibly taken possession of the
same from the 2nd respondent. The learned counsel for the 2 nd
respondent thus contended that the impugned order of the Sub
Court appointing a Receiver during the pendency of the suit is valid
and legal. It is just, proper and highly necessary in the interest of
justice that the administration of the business of the fish market and
the ice plant should be carried out by the Receiver during the
pendency of the various litigations initiated by the parties.
12. The learned counsel appearing for the 3 rd and 4th
respondents placed reliance on the counter affidavit filed and
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submitted that though late Abdul Vahid and the 4 th respondent had
executed a settlement deed in the year 2014, owing to a surgery
that the former had to undergo, subsequently, when he found
himself hale and hearty, the said settlement deed had been
cancelled by executing a cancellation deed. It is contended that from
the year 2022, late Abdul Vahid had been suffering from severe
neurological issues, which had left him incapacitated and unable to
manage his affairs. It was the 3 rd respondent, along with her
husband, the 5th respondent, who was residing with late Abdul Vahid
and the 4th respondent's wife at the house at Kadambattukonam
assisting and taking care of his needs. It is submitted that O.S.No.40
of 2023 was filed by respondents 3 and 4 before the Sub Court,
Attingal based on an oral Will by late Abdul Vahid whereby he had
declared that all his other legal heirs had been duly given whatever
assets he had and that the rest of his properties are to be settled in
the name of the 3rd respondent. Thereafter, O.S.No.51 of 2023 had
been filed by the 1 st appellant before the Sub Court, Attingal,
seeking a declaration of title and possession based on the purported
settlement deeds of the year 2023. It is submitted by the learned
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counsel for the 3rd and 4th respondents that O.S.No.40 of 2023,
O.S.No.51 of 2023 and O.S.No.86 of 2024 are all being tried
together and are pending. He submits that while late Abdul Vahid
was alive, his wife viz., the 4 th respondent, was by his side every
moment, and if late Abdul Vahid had any plans to execute another
settlement deed, the first person to know about the same would
have been the 4th respondent. However, the settlement deed
Nos.563/2023 and 564/2023 were executed while late Abdul Vahid
was not in a position or capacity to even write his own name let
alone execute settlement deeds. It is contended that in none of the
new settlement deeds any life interest has been retained for the 4 th
respondent, who is the mother of the children of late Abdul Vahid,
who is now fighting the suits, which is strange and highly
improbable. It is thus submitted that the settlement deeds are the
outcome of a conspiracy and fraud by the appellants to appropriate
the properties of late Abdul Vahid. It is alleged that the appellants
have basically stolen the properties mentioned in A and B schedules
and that the A schedule property is the only income-generating
asset. The 4th respondent is an ailing old woman without any
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income, and after the death of her husband, she is left with no other
option to sustain herself other than depending on the income from
the A schedule property. The condition of the 4 th respondent is
appalling, and the appellants have many a time expelled her from
the house constructed by late Abdul Vahid. It has become difficult
for the 4th respondent to maintain herself. It is hence contended that
the appointment of a Receiver by the Sub Court is valid, just and
equitable since it would ensure that the income from the property
could be equally distributed till the pending litigations are decided.
Appellants have failed to put forth a prima facie case regarding title
or possession, and hence, the FAO is only to be dismissed.
Analysis and Discussion:
13. Before proceeding to consider the contentions put forth by
the parties, I deem it relevant to remind myself of the settled norms
governing the appointment of a Receiver under Order 40 of the
Code of Civil Procedure, 1908. It is trite that the appointment of a
Receiver is discretionary and rests purely on the sound discretion of
the Court. The lex classicus on the point is T.Krishnaswamy Chetty
v. C.Thangavelu Chetty and others (supra), wherein the five
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principles described as the "paanch sadachar' to be followed by
Courts exercising equity jurisdiction in appointing Receivers were
pithily stated as follows :
"(1) The appointment of a receiver pending a suit is a matter resting in
the discretion of the Court. The discretion is not arbitrary or absolute: it is
a sound and judicial discretion, taking into account all the circumstances
of the case, exercised-for the purpose of permitting the ends of justice,
and protecting the rights of all parties interested in the controversy and
the subject-matter and based upon the fact that there is no other
adequate remedy or means of accomplishing the desired objects of the
judicial proceeding .
(2) The Court should not appoint a receiver except upon proof by the
plaintiff that prima facie he has a very excellent chance of succeeding in
the suit.
(3) Not only must the plaintiff show a case of adverse and conflicting
claims to property, but, he must show some emergency or danger or loss
demanding immediate action and of his own right, he must be
reasonably clear and free from doubt. The element of danger is an
important consideration. A Court will not act on possible danger only; the
danger must be great and imminent demanding immediate relief. It has
been truly said that a Court will never appoint a receiver merely on the
ground that it will do no harm.
(4) An order appointing a receiver will not be made where it has the
effect of depriving a defendant of a 'de facto' possession since that might
cause irreparable wrong. If the dispute is as to title only, the Court very
reluctantly disturbs possession by receiver, but if the property is exposed
to danger and loss and the person in possession has obtained it through,
fraud or force the Court will interpose by receiver for the security of the
property. It would be different where the property is shown to be 'in
medio', that is to say, in the enjoyment of no one, as the Court can hardly
do wrong in taking possession: it will then be the common interest of all
the parties that the Court should prevent a scramble as no one seems to
be in actual lawful enjoyment of the property and no harm can be done to
anyone by taking it and preserving it for the benefit of the legitimate who
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may prove successful. Therefore, even if there is no allegation of waste
and mismanagement the fact that the property is more or less 'in medio'
is sufficient to vest a Court with jurisdiction to appoint a receiver.
(5) The Court, on the application of a receiver, looks to the conduct of the
party who makes the application and will usually refuse to interfere
unless his conduct has been free from blame. He must come to Court
with clean hands and should not have disentitled himself to the equitable
relief by laches, delay, acquiescence etc."
14. The need for exercising caution in the process of
appointment of a Receiver was also emphasised in
T.Krishnaswamy Chetty (supra), holding as follows:
"In exercising its discretion the Court proceeds with
caution, and is governed by a view of all the
circumstances. No positive or unvarying rule can be laid
down as to whether the Court will or will not interfere by
this kind of interim protection of the property. Where,
indeed, the property is as it were 'in medio', in the
enjoyment of no one, it is the common interest of all
parties that the Court should prevent a scramble, and a
receiver will readily be appointed: as, for instance, over the
property of a deceased person pending a litigation as to
the right to probate or administration. But where the object
of the plaintiff is to assert a right to property of which the
defendant is in enjoyment, the case presents more
difficulty; The Court by taking possession at the instance
of the plaintiff may be doing a wrong to the defendant; in
some cases an irreparable wrong. If the plaintiff should
eventually fail in establishing his right against the
defendant, the Court may by its interim interference have
caused mischief to the defendant for which the
subsequent restoration of the property may afford no
adequate compensation."
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This view has been reiterated in a catena of decisions including
Mary and others v. Biju P.Sebastain [2010 (3) KHC 189] by this
Court wherein it has been held that the objective of appointing a
Receiver is to preserve the subject matter pending litigation. The
principles governing the appointment of a Receiver can thus be
succinctly stated as follows:
"1. Courts Discretionary Power: The court has the discretion to
appoint a receiver when it is deemed just and convenient to do
so, based on the specific circumstances of the case.
2. Existence of a Prima Facie Case: The plaintiff must
demonstrate a strong prima facie case, meaning they have a
good chance of succeeding in the suit.
3. Protection of Property: The primary objective is to protect
and preserve the property in dispute, ensuring it is available to
satisfy the claims of the parties involved.
4. Risk of Damage and Loss: There must be a real risk of
damage, misuse, or mismanagement of the property if a
receiver is not appointed.
5. Avoidance of Deprivation of Possession: Generally, a
receiver should not be appointed if it would deprive the
defendant of their de facto possession, as if this could cause
irreparable loss.
6. Conduct of Parties: The court should also consider the
conduct of the parties who seek the appointment of a receiver."
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15. Having thus reminded myself of the essential principles
governing the subject, I proceed to consider the contentions put
forth by the parties. Although detailed submissions have been made
relying on the documents produced and at times touching on the
merits of the matter, I propose not to enter into intricate examination
of inter se legal merits of the contentions regarding title and claims to
such properties. The examination will be confined to the correctness
of the order rendered by the learned Sub Judge on the touchstone
of the five principles described as the 'paanch sadachar' which
govern the exercise of the equity jurisdiction in appointing
Receivers. I note that in Paramanand Patel's case, (supra) the
Hon'ble Supreme Court had with respect to the documents relied on
and evidence produced, opined as follows.
"Although, the learned counsel for the parties have
addressed us at great length, and in fact we have been
taken through the minutest details of the relevant and
important documents filed and relied on by the parties, we
are of the opinion that it would not be prudent on our part
to discuss the same in great details."
I note that the same rationale applies to the case at hand too.
16. Of the five principles that ought to be weighed by the trial
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court before proceeding to appoint a Receiver, termed as Paanch
sadachar and enumerated above, the principal thrust of the
challenge put forth by the learned Senior Advocate on behalf of the
appellants had been on point No. 2 viz., that the Court ought not
appoint a Receiver except upon proof by the 1 st respondent/plaintiff
that she has a prima facie case and an excellent chance of
succeeding in the suit. It is contended that the contentions put forth
by the plaintiff does not even reveal a prima facie case. Hence it
assumes relevance to examine whether the 1st respondent/plaintiff
has made out a prima facie case to sustain the application for
appointment of a Receiver. Admittedly the 1 st respondent/plaintiff is
a legal heir of the late Abdul Vahid. It is the specific case of the 1 st
respondent that late Abdul Vahid had been directly running the
business till his death and since the earlier settlement deed
executed by him and 4th respondent had been cancelled by them,
the plaint A and B schedule properties had reverted back to late
Abdul Vahid and after his death they are open for partition as per the
law applicable to the parties. This contention stands unassailed
except for the subsequent settlement deeds of 2023 relied on by the
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appellants which are alleged to be forged document by all other
siblings. Till the sustainability of the same is subjected to trial and
evidence, the 1st respondent does have a prim facie case and a
right to seek appointment of a Receiver. Though the claim of the 1 st
appellant is that she has invested amounts for the ice plant nothing
to even prima facie to prove the same had been produced. I note
that the learned Sub Judge had considered settlement deed
No.563/2023 relied on by the 1 st appellant while claiming exclusive
rights over the plaint A schedule property and had prima facie
concluded that the signature in the said document produced as
Ext.A1 is totally different from the signature of late Abdul Vahid in
other documents. The learned Senior Counsel had addressed me in
extenso in this respect, challenging the correctness of the same,
highlighting that the signature which had been relied on for
comparison was those executed at fairly earlier periods of time and
the executant could have been in a different physical disposition
while executing Ext.A1. The conclusion of the learned Sub Judge
that no expertise is needed to ascertain the variance in signature
and that any prudent person can discern the same has been
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vociferously contested. I do not find any reason to interfere with the
said prima facie conclusion arrived at by the trial Judge who had the
benefit of making a comparison of documents. The correctness of
the same would be open to scrutiny during the trial. Placing a prima
facie reliance on the same while considering an application for the
Receiver cannot be found fault with. The further reliance placed by
the learned Judge is on the settlement deed No.1499/2014 stated to
have been first executed and later cancelled by late Abdul Vahid.
The learned Judge had concluded that the validity of subsequent
cancellation is to be adjudged before considering the validity of any
subsequent transfer, including the one vide settlement deed
No.563/2023. The learned Judge had taken note of the contention
that the revenue generated from the Plaint A schedule property is
substantial and that the same needs to be safeguarded by
appointing a Receiver till an adjudicated decision is arrived at with
respect to the claim put forth by the parties basing on the respective
documents. The learned Sub Judge had also taken into
consideration the stand of the 4 th respondent who is the wife of late
Abdul Vahid, that he was not in a condition to execute any deed
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during the period when Ext.A1 settlement deed is stated to have
been executed. The purported suppression of the death of late
Abdul Vahid in the plaint filed by the 1st defendant who had moved
O.S.No.156 of 2023 before the Munsiff Court, Varakala, which was
filed on 05.04.2023 that the very next day of the demise of Abdul
Vahid had also apparently weighed with the learned Judge. All these
aspects had led the Sub Judge to conclude validly that there existed
a strong prima facie case in favour of the 1st respondent/plaintiff to
seek the appointment of a Receiver, so as to secure the subject
matter. The said conclusion arrived at cannot be termed as illegal or
devoid of basis.
17. The next question to be considered is whether the
appointment of Receiver had led to deprivation of de facto
possession of the appellants thus making the appointment hit by the
4th 'sadachar' enumerated in T.Krishnaswamy Chetty's case
(supra). Emphatic arguments were also placed by the learned
Senior Counsel on the mandate that an order appointing a Receiver
ought not be made where it has the effect of depriving a defendant
of a 'de facto' possession, since that might cause irreparable wrong.
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The learned Senior Counsel had relied on the decision of this Court
in K. Sandhya's case (supra) wherein this Court had affirmed an
order of the trial court refusing to appoint a Receiver, holding that
appointment would have had the effect of divesting the defendant's
possession over the property. That was thus a case where the trial
court had exercised its discretion against the appointment of a
Receiver on the facts of the said case. In the said decision this Court
had referred to the dictum laid down in Mrs.S.Karpagam v. R.
Shanmugam (supra) and in Paramanand Patel (supra)] which
reiterated the principles in T.Krishnaswamy Chetty (supra).
Reliance is also placed on the dictum laid down by the Supreme
Court in S. Saleema Bi v. S. Pyari Begum (supra), wherein the
Hon'ble Supreme Court held that since the defendant was found to
be in physical possession of the property in dispute, the Order of the
High Court appointing a Receiver is unsustainable as it divests the
possession of the defendant. In Paramanand Patel's case, the
Hon'ble Supreme Court had held that the element of danger is an
important consideration and ordinarily a Receiver would not be
appointed unless a case has been made out which may deprive the
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defendant of a de facto possession for the said purpose, conduct of
the parties would also be relevant. Thus it assumes relevance to
ascertain whether there was any material placed before the trial
court to evidence that the Appellants herein were in possession of
the relevant plaint schedule properties and whether appointment of
the Receiver would in effect amount to taking the possession away
from them. The reliance placed by the appellant to contend that they
are in possession of the property and the appointment of a Receiver
will amount to depriving them of the same is the claim that they hold
the licences with respect to the running of the ice plant situated in
the Plaint schedule property viz., the license for operating the ice
plant, the FSSAI license and the certificate issued by the Pollution
Control Board. I find merit in the contention put forth by the counsel
for the 1st respondent that the said documents which relate to the ice
plant alone by itself does not by itself prove possession of the entire
plaint A schedule properties. It also assumes relevance to take note
of the fact that it is not just the possession of the plaint A schedule
property that has relevance. The substantial revenue said to be daily
generated by the ice plant and the fish market is also a valuable
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asset/ property over which the other legal heirs of late Abdul Vahid
including the 1st appellant have an entitlement. Hence the day to day
running of the ice plant and the fish market and the revenue
generated therein assumes relevance in answering the question as
to how the property is to be protected from danger and loss to
subserve the interests of all during the pendency of the suit. Further,
it is the specific case of the 2 nd respondent that on the very next day
of the impugned order, the appellants had with the help of some
anti-social elements trespassed into the ice-plant and forcibly taken
possession of the same from the 2 nd respondent. The reliability of
the said contention though is open to question, the learned Sub
Judge had in this context apparently taken note of the 5 th ingredient
of the paanch sadachar which pertains to conduct of the parties who
seek the appointment of a Receiver. The learned Judge had in this
context noted that the 5th respondent (6th defendant) who had been
assisting the late Abdul Vahid in the conduct of the business had
been attempted to be ousted on the very next day of the death of
Abdul Vahid by filing a suit. It is relevant to note that over and above
the fact that the appellants have not been able to independently
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substantiate their possession, it is trite that if the property is
exposed to danger and loss and the person in possession has
obtained it through, fraud or force it is the duty of the trial court to
interpose by appointing a Receiver for the security of the property. I
also note that by the very nature of the activity that was being
carried on in the plaint A schedule property, the existence of an
emergency or danger of loss which demanded immediate action,
coupled with an element of danger, stands proved, justifying the
appointment of a Receiver. It would be pertinent to reproduce the
observations in Jambagavalli Ammal's case (supra):
"In a case which arises under Order 40 Rule 1
CPC, the primary thing which has to be looked into by a
court before the wishes of the parties are acceded to is to
see how best the suit properties could be preserved
without being wasted. The responsibility in courts becomes
all the more greater if there is a race between the two
competing parties to possess the suit properties. In the
instant case, the widow is claiming possession in her own
right under the Hindu Succession Act. The defendants are
claiming such possession under the Succession Act as
legatees under the wills. These are matters which have to
be got into and adjudicated upon finally after the trial court
enters on a trial of the suit, hears parties, peruses the
documents and renders its ultimate decision thereon.. till
then it is imperative for course to see that the suit
properties over which Such conflicting claims are
projected, are not only preserved, but are kept without
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being wasted or without any prejudice being caused to any
one of the parties to the litigation by any overt or covert act
on the part of the other party to it. It is only to create a
harmony and not to ferment disharmony that the
intentment of Order 40 rule 1 CPC should be perpetrated.
If the primary intention is to keep such harmony between
the parties, then it would be necessary to disturb the
possession of one of the parties to the suit over the suit
properties and vest such possession in an independent
body so as to safeguard the interests of all parties
concerned."
Hence, the alleged deprivation of the 1 st appellant's (1st defendant)
'de facto' possession, cannot be termed as illegal or unjustified in
the facts and circumstances of the case. As regards the
appointment of the Official Receiver attached to the District Court,
Thiruvananthapuram, as the Receiver by the Sub Court, rather than
appointing the 4th respondent mother or any of the siblings, I find
merit in the contention put forth by the 1 st respondent based on the
dictum laid down by the Hon'ble Supreme Court in Kasturi Bai's
case (supra) wherein it was noted that widow being an old lady
cannot be entrusted with the task of collecting rent from tenants
regularly, maintaining accounts of the collection and ensure proper
maintenance of the structures etc. and that the other defendants in
view of the allegations against them by the 1 st respondent/plaintiff
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cannot be entrusted with the work. The Hon'ble Supreme Court had
in the said case affirmed the order of appointment of a third party
Receiver.
Conclusion:
In view of the above discussion, there is no reason to interfere
with the appointment of the Receiver. FAO is dismissed. No costs.
The Sub Court, Attingal, shall endeavour to dispose of O.S.No.43 of
2024 expeditiously. It is clarified that all questions are left open, and
nothing mentioned herein above shall be taken as impacting the
rights of any of the parties.
Sd/-
SYAM KUMAR V.M.
JUDGE
csl
2025:KER:33628
RESPONDENTS' EXHIBITS
Annexure R1(1) A true photocopy of the settlement Deed
Annexure R1(2) A true photocopy of the Cancellation
Annexure R1(3) A true photocopy of the Settlement Deed
Annexure R1(4) A true photocopy of the Settlement Deed
Annexure R1(5) A true photocopy of the plaint in O.S.
Annexure R1(6) A true photocopy of the plaint in O.S.
Annexure R1(7) A true photocopy of the plaint in O S
No.43/2024 filed before the Sub Court,
Attingal
Annexure R1(8) A true photocopy of the IA No.4/2024 in
Exhibit R2(a) The True copy of the Settlement Deed
No. 1499/2014 dated 07.07.2014 of the
Navaikulam S.R.O.
Annexure R1(9) CERTIFIED COPY OF THE COMMON JUDGEMENT
IN WP (C) 17517/2023 AND WP (C)
17583/2023 DATED 05/09/ 2024
Annexure R1(10) CERTIFIED COPY OF WRIT PETITION (C)
No.37492/2024 (WITHOUT EXHIBITS) FILED
BY THE PETITIONER
2025:KER:33628
Exhibit R2(b) The true copy of the Cancellation Deed
No.533/2015 dated 28.03.2015 of
Navaikulam S.R.O.
Exhibit R2(c) The true copy of the plaint in
O.S.No.51/2023 dated 27.05.2023 filed
by the Appellant before the Sub Court,
Attingal
Exhibit R3(d) The true copy of the Settlement Deed
No. 563/2023 dt.15.03.2023 of
Navaikulam S.R.O.
Exhibit R3(e) The true copy of the Written Statement
along with Counter Claim dated
06.07.2023 in O.S.No.278/2023 on the
file of the Munsiff Court Attingal
filed by the 2nd respondent herein
Exhibit R2(f) The true copy of the plaint along with
schedule in O.S.No.218/2023 dated
16.05.2023 on the files of Munsiff
Court, Varkala
Exhibit R2(g) THE TRUE COPY OF THE TRI PARTY RENT
DEED DATED 10.06.2023 EXECUTED BETWEEN
THE 2ND RESPONDENT AND SALAHUDHEEN AND
NAZERUDHEEN
Exhibit R2(h) THE TRUE COPY OF THE LEGAL NOTICE DATED
29.10.2024 ISSUED TO NAZARIDHEEN BY THE
COUNSEL FOR THE 2ND RESPONDENT
Exhibit R2(i) THE TRUE COPY OF THE REPLY NOTICE DATED
11.11.2024 SENT BY THE COUNSEL FOR
SALALUDHEEN AND NAZARUDHEEN
Exhibit R2(j)(i) THE TRUE COPY OF LEVY RECEIPT BEARING
NO. 59087 ISSUED BY BOARD FOR WELFARE
FUND FOR KERALA LOADING AND UNLOADING
WORKERS, THIRUVANANTHAPURAM DISTRICT,
TO THE 2ND RESPONDENT
2025:KER:33628
Exhibit R2(j)(ii) THE TRUE COPY OF LEVY RECEIPT BEARING
NO. 59088 ISSUED BY BOARD FOR WELFARE
FUND FOR KERALA LOADING AND UNLOADING
WORKERS, THIRUVANANTHAPURAM DISTRICT,
TO THE 2ND RESPONDENT
Exhibit R2(j)(iii) THE TRUE COPY OF LEVY RECEIPT BEARING
NO. 59089 ISSUED BY BOARD FOR WELFARE
FUND FOR KERALA LOADING AND UNLOADING
WORKERS, THIRUVANANTHAPURAM DISTRICT,
TO THE 2ND RESPONDENT
Exhibit R2(j)(iv) THE TRUE COPY OF LEVY RECEIPT BEARING
NO. 59090 ISSUED BY BOARD FOR WELFARE
FUND FOR KERALA LOADING AND UNLOADING
WORKERS, THIRUVANANTHAPURAM DISTRICT,
TO THE 2ND RESPONDENT
Exhibit R2(j)(v) THE TRUE COPY OF LEVY RECEIPT BEARING
NO. 59096 ISSUED BY BOARD FOR WELFARE
FUND FOR KERALA LOADING AND UNLOADING
WORKERS, THIRUVANANTHAPURAM DISTRICT,
TO THE 2ND RESPONDENT
Exhibit R2(j)(vi) THE TRUE COPY OF LEVY RECEIPT BEARING
NO. 59097 ISSUED BY BOARD FOR WELFARE
FUND FOR KERALA LOADING AND UNLOADING
WORKERS, THIRUVANANTHAPURAM DISTRICT,
TO THE 2ND RESPONDENT
Exhibit R2(j)(vii) THE TRUE COPY OF LEVY RECEIPT BEARING
NO. 59098 ISSUED BY BOARD FOR WELFARE
FUND FOR KERALA LOADING AND UNLOADING
WORKERS, THIRUVANANTHAPURAM DISTRICT,
TO THE 2ND RESPONDENT
Exhibit R2(j) THE TRUE COPY OF LEVY RECEIPT BEARING
(viii) NO. 59099 ISSUED BY BOARD FOR WELFARE
FUND FOR KERALA LOADING AND UNLOADING
WORKERS, THIRUVANANTHAPURAM DISTRICT,
TO THE 2ND RESPONDENT
Exhibit R2(j)(ix) THE TRUE COPY OF LEVY RECEIPT BEARING
2025:KER:33628
NO. 59100 ISSUED BY BOARD FOR WELFARE
FUND FOR KERALA LOADING AND UNLOADING
WORKERS, THIRUVANANTHAPURAM DISTRICT,
TO THE 2ND RESPONDENT
Exhibit R2(k) THE TRUE COPY OF THE PLAINT DATED
24.05.2023 IN O.S.NO. 242/2023 ON THE
FILE OF MUNSIFF'S COURT VARKALA
Exhibit R2(l) THE TRUE COPY OF THE OBJECTION DATED
26.06.2023 FILED BY THE 2ND RESPONDENT
HEREIN AGAINST THE I.A.NO.1/2023 IN
O.S.NO.242/2023 ON THE FILE OF
MUNSIFF'S COURT, VARKALA
Exhibit R2(m) THE TRUE COPY OF THE MUTATION APPEAL
NO.2424/2024 DT.03.09.2024 PREFERRED BY
THE 2ND RESPONDENT BEFORE THE RDO,
THIRUVANANTHAPURAM
