Cheruku Swamy Nathan vs Venisetty Rathnam And 5 Others
2021 Latest Caselaw 776 Tel

      HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
                                          AND
           HONOURABLE SRI JUSTICE T.VINOD KUMAR

          CIVIL MISCELLANEOUS APPEAL NO.37 OF 2021

                                 J U D G M E N T:

(Per Sri Justice M.S.Ramachandra Rao)

This Appeal is preferred challenging the order dt.29.12.2020 in

I.A.No.1 of 2016 in O.S.No.211 of 2014 of VII Additional District

Judge, Warangal.

2. The appellant is the 1st defendant in the said suit.

3. The said suit was filed by the mother of the appellant by name

V.Rathnam against the appellant and others seeking partition of A and B

schedule properties and allotment of one such share to her with separate

possession; to direct the appellant to render accounts with regard to rent

arrears collected from respondents 2 to 6/defendants 2 to 6 from

01.12.2011 up to 30.11.2014, and for a direction to respondents 2 to 6 to

deposit future rents from 01.12.2014 into Court.

4. The 1st respondent inherited a two storied building with ground

and first floors being Municipal No.12-1-70 and having on its rear side a

two roomed Bangalore tiled house and six shops in ground floor, two big

halls in the first floor situated in S.V.N.Road, Warangal and also certain

gold and silver articles.

5. It is the contention of the 1st respondent in the suit that she is the

only natural daughter of late Cheruku Kanthaiah and Smt. Cheruku

Venkata Laxmi; that her father died on 27.08.1992; that her father was a

Senior Advocate in Warangal Bar and also former Municipal Chairman MSR,J & TVK,J ::2:: cma_37_2021

of Warangal Municipal Corporation; that her mother died on 04.03.2007;

that the appellant is her fourth natural son; that her natural parents

fostered him and brought him up as their adopted son with the help and

assistance of the 1st respondent. She alleged that respondents 2 to 6 are

their tenants.

6. The 1st respondent alleged that the appellant since 1991 was

treated as the foster son of her late father, but there was no adoption

deed. The 1st respondent alleged that the suit schedule property is the

property of her father; that it is their ancestral property; that she and her

husband have separated for more than two decades; that the

1st respondent had constructed the commercial complex which is subject

matter of the suit and also constructed the first floor in 2005-06 and let it

out to the 6th respondent.

7. She alleged that since 2001 the appellant used to collect the rents

and failed to pay half share in the rental amounts to the 1st respondent

taking advantage of her advanced age and ill-health.

8. The 1st respondent contended that the appellant was a practicing

Advocate at Warangal and he completely ignored the rights of the

1st respondent and drove her out from the suit schedule property ignoring

the relationship of the natural mother and son. She alleged that the

appellant used to quarrel with her and he had also beat her black and

blue mercilessly, that she is very thin, aged 78 years and cannot resist the

onslaughts of the appellant.

9. She alleged that the appellant developed negative attitude towards

her at the instance of his natural father who is the 1st respondent's MSR,J & TVK,J ::3:: cma_37_2021

husband and his third elder brother and his eldest sister and bore grudge

against the 1st respondent and they formed a group to create troubles to

her.

10. She also alleged that the District Legal Services Authority,

Warangal passed an order on 30.06.2001, after mutual discussion

between her and the appellant, to divide the suit schedule property into

three equal shares.

11. She denied that there was any adoption of the appellant by her

natural father. She alleged that she was necked out of her own property

by the appellant on 21.08.2010 and that she is currently living with her

second daughter.

12. She alleged that the appellant had failed to pay her share of rents

and also instructed the tenants not to pay rents to her.

13. She also alleged that the appellant took away forcibly all gold and

silver ornaments from her locker taking advantage of her old age. She

alleged that the appellant, under influence of his natural father and his

elder sister, is harassing her and avoiding partition of the suit schedule

properties.

The stand of the appellant in the written statement

14. Written statement was filed by the appellant denying these

allegations.

15. He alleged that the 1st respondent was neither a coparcener nor a

joint owner along with him in respect of any property including the suit

schedule property.

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16. He contended that the marriage of the 1st respondent took place in

1955 even prior to the enactment of the Hindu Succession (Amendment)

Act, 2005 which came into force with effect from 09.09.2005 and since

she was a Hindu female daughter of late Cheruku Kanthaiah and

Cheruku Venkata Laxmi, she cannot be treated as a coparcener and she

is not entitled to seek partition of the suit schedule property.

17. According to the appellant, the suit schedule property was

purchased by late Cheruku Thirumal in 1324 Fasli and the said person

was his great grandfather. According to appellant, it was acquired and

possessed by his ancestors prior to Hindu Succession Act, 1956 and he is

the adopted son of late Cheruku Kanthaiah and Cheruku Venkata Laxmi.

18. According to him, Cheruku Venkata Laxmi was having undivided

half share in the suit schedule property had notional partition taken

place. According to him, after demise of his adoptive parents and as per

the Will dt.28.05.2005 allegedly executed by Chruku Venkata Laxmi

during her life time, he became the absolute owner of the suit schedule

property.

19. According to him, since Cheruku Kanthaiah died on 27.08.1992,

succession had opened much prior to the enactment of the Hindu

Succession (Amendment) Act, 2005 which came into force with effect

from 09.09.2005 and so the 1st respondent was not entitled to claim any

share in the property. He denied the other allegations made by the 1st

respondent.

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20. According to him, the 1st respondent could not have constructed

the commercial complex as she had no money and even the maintenance

case filed by her against her husband was dismissed on merits.

21. He alleged that he alone constructed the commercial complex and

let it out to respondents 2 to 6 and he alone is entitled to collect rents as

owner of the property. He denied that he is a foster son of late Chruku

Kanthaiah and Cheruku Venkata Laxmi.

22. He alleged that the 1st respondent was acting according to the

dictates of her daughter Kumari Andalu, a practicing Advocate and

junior of K.Krishna Prasad who is Advocate for the 1st respondent.

23. According to him, there was no adjudication of disputes between

the parties by the District Legal Services Authority, Warangal in

C.L.S.A.No.135 of 2001. He denied that he had evicted the 1st

respondent from the suit schedule property.

24. He alleged that the 1st respondent herself removed gold, silver and

cash without his knowledge and consent. He therefore prayed for

dismissal of the suit.

25. He thereafter filed an additional written statement also in respect

of certain third party affidavits filed by the 1st respondent in I.A.No.921

of 2014.

I.A.No.1 of 2016

26. The 1st respondent had filed I.A.No.1 of 2016 under Order XL

Rule 1 CPC requesting the trial Court to appoint a Receiver to take care

of the suit schedule property, preserve, protect and to collect rents and MSR,J & TVK,J ::6:: cma_37_2021

for payment of taxes in order to safeguard her alleged rights and to

deposit the entire rent of Rs.62,000/- or more into the Court below till

the disposal of the suit. She reiterated the averments in the plaint.

27. Counter affidavit was filed in the said Application by the appellant

reiterating the contents in the written statement filed by him.

The trial court's order in IA 1 of 2016

28. By order dt.28.12.2020, the Court below allowed I.A.No.1 of

2016.

29. After referring to the respective contentions of the parties, the

Court below noted that the suit schedule immovable property was

inherited by the deceased Cheruku Kanthaiah; that the 1st respondent was

his only daughter; and in view of the recent decision of the Supreme

Court in Vineetha Sharma Vs. Rakesh Sharma and others1

interpreting the amendment made to Section 6 of the Hindu Succession

Act, 2005, it held that it was not necessary that the father of the 1st

respondent, Cheruku Kanthaiah, should have been alive on 09.09.2005;

that right in coparcenary property arises by birth and the 1st respondent is

a coparcener and there is prima facie case in her favour.

30. It also held that the 1st respondent is a senior citizen aged about 82

years who is none other than the natural mother of the appellant and that

the appellant did not deny that he was getting rents of Rs.62,000/- every

month from the suit schedule property.

C.A.No.Diary No.32601 of 2018 decided on 11.08.2020 = (2020) 9 SCC 1 MSR,J & TVK,J ::7:: cma_37_2021

31. It also took note of the fact that the 1st respondent was residing

separately from the appellant and the appellant alone was managing the

immovable property which is subject matter of the suit and receiving

rentals of Rs.62,000/- from the tenants.

32. It then observed that since the appellant was not furnishing

accounts to the 1st respondent with regard to the rentals, in future if the

Court comes to a conclusion that the 1st respondent is having share in the

property, it would be difficult for the 1st respondent to get her share from

the appellant. It also noted that the appellant did not furnish accounts

before the Court below to prove his bonafides. It also observed that the

appellant did not pay any maintenance to the 1st respondent though she is

his natural mother and failed to look after her welfare.

33. It relied on a Judgment of this Court in Chundru Srinivas Rao

Vs. Chundru Venkata Rao2 and held that if possession of the entire

property is in the hands of the appellant and he is screening the income

that would be derived therefrom, it would be fit case to appoint a

Receiver to ensure protection of interests of the parties.

34. It therefore appointed an Advocate as Receiver to take possession

of the immovable property which is subject matter of the suit, to collect

rents from the tenants in the said property and deposit the same to the

credit of the suit along with detailed statement. It also gave the Advocate

Receiver liberty to take appropriate legal steps against respondents 2 to 6

if they failed to pay the rents agreed.

    1992(2) APLJ 212
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The present CMA


35.      Assailing the same, this CMA is filed.

36. Heard Sri Kiran Palakurthi, learned counsel for the appellant.

37. Learned counsel for the appellant contended that the suit being

one for partition and since there is no allegation of wastage of property,

Order XL Rule 1 CPC could not have been invoked. According to him,

in a suit for partition, only in exceptional cases to protect the interests of

parties, a Receiver can be appointed, but the instant case is not one such

case.

The consideration by the Court

38. We have noted the contentions of the parties.

39. Admittedly, the appellant is the natural son of the 1st respondent.

The 1st respondent and her husband are admittedly separated from each

other and there are other children of the 1st respondent as well. The

1st respondent is admittedly a senior citizen aged about 82 years.

40. According to the 1st respondent, the appellant is only a foster son

of the 1st respondent's natural parents, but the appellant alleges that he is

the adopted son of the parents of the 1st respondent.

41. Whether the appellant is the adopted son of the parents of the

1st respondent or is only their foster son is a matter to be decided in the

trial.

42. Though the appellant contended that natural father of the

1st respondent was not alive as on the date of coming into force of Hindu MSR,J & TVK,J ::9:: cma_37_2021

Succession (Amendment) Act, 2005, admittedly the Supreme Court in

Vineetha Sharma Vs. Rakesh Sharma (1 supra) had held that it was

not necessary that the natural father of a daughter should be alive as on

the date of coming into force of the said amendment, i.e., on 09.09.2005

[para 129(iii)] for the daughter to be treated as a coparcener and entitled

to have right in the property. Learned counsel for the appellant is unable

to show why the said judgment does not apply to the instant case.

43. Therefore, we are satisfied that the 1st respondent is a coparcener

and is entitled to a share in the suit schedule properties.

44. Whether the appellant is an adopted son or not is something

which the appellant needs to prove by cogent evidence in the suit for him

to claim either the entire suit schedule properties or income therefrom

exclusively.

45. Admittedly, the appellant is collecting rents out of the suit

schedule immovable property and appropriating them himself.

46. The 1st respondent has alleged that the rental income from the suit

schedule immovable property is Rs.62,000/- per month which has not

been denied by the appellant in his counter. Whether the appellant had

exclusively constructed the suit schedule property out of his own income

or not is a matter to be again decided during trial.

47. As held in Chundru Srinivas Rao Vs. Chundru Venkata Rao

(2 supra) by this Court, if major portion of landed property is in

possession of only one individual, then if the suit is likely to be

prolonged, the losers are persons who are not in possession of the MSR,J & TVK,J ::10:: cma_37_2021

property at all and they would be deprived of income therefrom.

Therefore, there is nothing wrong in the appointment of a Receiver in

such situations and there is no absolute bar to appoint an Advocate

Receiver for the purpose of collection of rents and for depositing them

into Court.

48. No doubt as contended by the learned counsel for the appellant, a

receiver ought not to be appointed to dispossess a person in physically

possession.

49. In the instant case, though the Court below had used the words

"Advocate Receiver should take possession of the property", it is clear

that it only intended symbolic possession to be taken, and not physical

possession because the Court below has directed the Advocate Receiver

to collect rents from respondents 2 to 6 and deposit them into Court.

50. Moreover, to test the bonafides of the appellant, this Court had

asked the appellant to file copies of income tax returns. In all these

computation statements, annual letable value is indicated, but the rent

receivable is shown as zero.

51. In the decision in S.Saleema Bi Vs. S.Pyari Begum3 cited by the

learned counsel for the appellant, there is no discussion of facts and the

order passed by the High Court was set aside observing that the High

Court did not go into the question whether it was just and convenient to

appoint a Receiver and there was prima facie case in favour of the

plaintiff. Therefore, the said decision does not assist the appellant.

    (2000) 9 SCC 560
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52. In Bhupathiraju Venkata Ramaraju Vs. Bhupathiraju

Ramakrishnamraju4 relied upon by the appellant, the High Court, on

the basis of a denial in the written statement observed that existence of

prima facie case in favour of the plaintiff cannot be inferred at

interlocutory stage so long as the question is not conclusively

determined at the trial. The proposition quoted in the said judgment does

not appear to us to be correct.

53. The decision in Anupama Homes India Pvt. Ltd. Vs. P. Shouri

Raja5 relates to appointment of an Advocate Receiver to take possession

of the properties of a limited company, which is not the situation in the

instant case. Moreover, the suit in that case was not a partition suit at all.

54. In Chelikam Rajamma Vs. Padileti Venkataswami Reddy6, a

Division Bench of this Court observed in para 11 that:

"(11) From an analysis of Order 40, Rule 1 of the Code of Civil Procedure in the light of the case law in relation to partition suits, the following propositions may be deduced: (1) The appointment of receiver cannot be resorted to lightly without considering the entire facts and circumstances. (2) The party seeking the appointment of receiver must make out a case that he or she was not only kept out of possession of the properties unauthorisedly, but the party in possession is indulging in acts of waste leading to the inference of incompetence. (3) If, prima facie, the plaintiff has excellent chance of succeeding in the suit, there being no denial with regard to his or her share in the plaint schedule properties, the conduct of the opposite party in keeping the plaintiff out of possession will be relevant consideration for directing the opposite party to deposit a sum of money approximately representing the value of the yield pertaining to the share of the plaintiff pending disposal of the suit. Even in such circumstances, a receiver should not be

1996 (3) ALT 702

2007 (6) ALT 122

1993 (2) ALT 154 MSR,J & TVK,J ::12:: cma_37_2021

appointed to oust the possession of the opposite party from the joint family properties. The protection of the properties and safeguarding of the rights of the parties shall be the twin objectives impelling the appointment of receiver."

In this judgment, even the decision in Chundru Srinivas Rao Vs.

Chundru Venkata Rao (2 supra) was noticed though it is stated that

the proposition of law was too widely stated in the said case.

55. According to us, in a partition action, normally appointment of

Receiver cannot be resorted lightly without considering the entire facts

and circumstances of the case. The party seeking appointment of a

Receiver should make out a case that such party was not only kept out of

possession of the property unauthorisedly, but the party in possession

had been indulging in acts of waste or other akin or like reasons. If

prima facie the plaintiff has excellent chance of succeeding in the suit

and there is no specific denial relating to him or her share, the conduct of

the opposite party in keeping the appellant out of possession would be

relevant consideration.

56. Admittedly, the 1st respondent is already aged about 80 years. The

suit is of the year 2014 and it appears that issues were framed only on

18.03.2020 and the next hearing date was on 06.04.2020, and in view of

the Covid-19 pandemic, it would obviously have been adjourned without

the trial having commenced.

57. Having regard to the relationship of mother and son between the

1st respondent and the appellant, and since the appellant's case about

adoption is yet to be proved in the Court below, and since the

1st respondent is having prima facie case in regard to her share in the suit MSR,J & TVK,J ::13:: cma_37_2021

schedule property (being only natural daughter of Cheruku Kanthaiah

and his wife), and since in the instant case the Court below has merely

appointed a Receiver to collect rents from tenants and deposit them into

Court to safeguard the interests of both parties, we do not wish to

interfere with the order passed by the Court below in the facts and

circumstances of the case.

58. Therefore, the Appeal fails and is dismissed.

59. In view of the fact that the plaintiff in O.S.No.211 of 2014 is a

Senior Citizen and the suit is an old suit, the Court below is directed to

dispose of the said suit as expeditiously as possibly preferably within

one year from today. No costs.

60. Pending miscellaneous petitions, if any, in this CMA shall also

stand dismissed.

____________________________ M.S.RAMACHANDRA RAO, J

____________________ T.VINOD KUMAR, J Date: 16-03-2021 Svv