IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 FAO.NO. 8 OF 2010() ------------------- {IN IA.4572/2008 IN OS.890/2008 OF THE II ADDL.SUB COURT, THRISSUR} .................... APPELLANT(S)/PETITIONER: ------------------------------- JOMOL JOHN, D/O. THONATH JOHNY, FRANCIS LANE, KANDASSAM KADAVU, KARAMUKKU VILLAGE. BY ADV. SRI.N.M.MADHU SRI.P.P.HARRIS RESPONDENT(S)/RESPONDENTS: ------------------------------------- 1. P.R.MARTHA, W/O.THONATH JOHNY, FRANCIS LANE, KANDASSAM KADAVU, KARAMUKKU VILLAGE. 2. MAJO.T.J, S/O. THONATH JOHNY, FRANCIS LANE, KANDASSAM KADAVU, KARAMUKKU VILLAGE. 3. RIJO.T.J, W/O. SIBIN K. THOMAS, KANDANIKULATHIL HOUSE, ILLIKAD DESOM, KATTOOR.P.O. ADV. SRI.K.JAYAKUMAR(CAVEATOR) THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 17/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------- F.A.O.NO.8 OF 2010 () ----------------------------------- Dated this the 17th day of June, 2010 J U D G M E N T THOTTATHIL B. RADHAKRISHNAN, J. The plaintiff in a suit for partition challenges the order refusing to appoint a receiver. The 1st defendant is the widow and the plaintiff and defendants 2 and 3 are the children of late Thonath Johny, who died on 14.9.2007. He was the licensee of a petroleum outlet. The plea of the contesting defendants is that late Johny had executed a Will on 21.6.2007. It is not much in dispute that he was suffering from cancer and other ailments and was undergoing treatment. It is also the material on record that even after the alleged execution of the Will on 21.6.2007, he had been carrying on transactions including from bank accounts and had also effected sales of immovable properties. 2. With the aforesaid situation, as of now, the contesting 2nd respondent stands injuncted from committing any act of F.A.O.8/2010 2 waste, improvements and also from encumbering or alienating the suit properties. According to the appellant/plaintiff, she stands excluded from the estate of her late father on account of the Will propounded by the 2nd respondent. In an earlier round, this Court confirmed the order of temporary injunction noticed above and remitted the application for appointment of a receiver for reconsideration. 3. Adverting to the principles laid down by the Madras High Court in T.Krishnaswamy Chetty v. C.Thangavelu Chetty and others (AIR 1955 Madras 430), the court below came to the conclusion that the case in hand does not provide ground to appoint a receiver and it was not just and convenient to do so. The court below also relied on the decision of the Apex Court in S.Saleema Bi. v. S.Pyari Begum and another (AIR 2000 SC 3513 (1)) and that of this Court in Das v. Parijathamma & Others (1985 KLT 109). 4. The plaintiff should have a strong prima facie case to succeed at trial. Above that, it must be just and convenient, as also the requirement that urgent measures are enforced. In F.A.O.8/2010 3 such situations, the discretionary relief of appointing a receiver on the principles laid down by the aforesaid decisions would be considered. The learned counsel for the appellant very persuasively submitted that the facts of the case in hand appear to be more similar to the one dealt with in the decision of the Madras High Court in Jambagavalli Ammal v. Govindaraja Kandiar and another (AIR 1980 Madras 103). Perusing that judgment, we are of the view that the said decision rests on the peculiar facts of that case and cannot be treated as laying down any principle of law, since the approach adopted in paragraph 4 of that judgment does not appear to be in tune with the decision of the Apex Court, as also the earlier decision of the Madras High Court, noted above. 5. On facts, the court below noticed that the testator had dealt with and disposed immovable properties owned by him, even after the alleged execution of the Will. The court noticed that very valuable immovable properties, stated to be worth in crores, have been disposed of by the late father of the plaintiff. The appellant/plaintiff does not challenge those sales by her late father. It was also noticed that the evidence on record indicate F.A.O.8/2010 4 that he had made several banking transactions including withdrawals and deposits even after the date of the Will, even when he was sick. On such material, the court below held, prima facie, that the testator was of appropriate physical and mental status for the execution of the Will. It was also noticed that even if it were non-testamentary succession, the major sharers would be the defendants, who are the widow, son and a daughter of the deceased and therefore also, it would not be just and convenient to appoint a receiver, dispossessing them. 6. With the aforesaid reasonings, we looked into the different items of properties which fall as a subject matter of the litigation. We do not find any managerial issue arising, except in relation to the running of the petroleum outlet, since the other properties and the interests therein are properly secured by the order of temporary injunction already granted. 6. In the aforesaid circumstances, we modify the order of the court below directing the 2nd respondent to furnish to the court below, the copies of the account statements of the petroleum outlet, duly authenticated by the Chartered F.A.O.8/2010 5 Accountant. Let this be done on a periodical basis, once in three months. We also direct that the court below, in the final adjudication of the case, would eschew all findings, views and observations in the impugned order and also in this judgment touching the merits of the contentions between the parties. The appeal is ordered accordingly. Sd/- THOTTATHIL B. RADHAKRISHNAN JUDGE Sd/- S.S.SATHEESACHANDRAN JUDGE prp true copy// P.A. to Judge F.A.O.8/2010 6