IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.11.2011 CORAM THE HON'BLE MRS. JUSTICE R.BANUMATHI and THE HON'BLE MS. JUSTICE R.MALA O.S.A.Nos.213 and 214 of 2011 1.K.Bhanumathi 2.K.Govardhana @ Balaji 3.S.Revathi 4.V.Bharathi ... Appellants in both the appeals. Vs. 1.Kuppusamy 2.K.Kannabai 3.K.Devaraj 4.K.Ethiraj ... Respondents in both the appeals. Original Side Appeal is filed under Order XXXVI Rule 1 of the Original Side Rules read with Clause 15 of the Letters Patent against the common order of this Court dated made in O.A. Nos.1117 and 1118 of 2009 in C.S.No.956 of 2009. For Appellants : Mr.S.Palanirajan For Respondents : Mr.Ashokpathy for M/s.Pass Associates COMMON JUDGMENT (Judgment of the Court was made by R.BANUMATHI,J) These appeals arise out of the common order in O.A.Nos.1117 and 1118 of 2009 in C.S.No.956 of 2009 dated 24.11.2010 whereby the learned single Judge declined to appoint Receiver and directed the Respondents-Defendants to deposit Rs.1,00,000/- for every year till the disposal of the suit to the credit of C.S.No.956 of 2009. Plaintiffs are the Appellants. 2. Brief facts are that Appellants-Plaintiffs have filed the suit for partition of the suit properties into two shares and to allot one share to them and to pass a preliminary decree. Appellants-Plaintiffs and Respondents-Defendants are related as under:- https://hcservices.ecourts.gov.in/hcservices/ Kuppusamy [D1] = Kanna Bai [D2] | -------------------------------------------------------------------- | | | Bhanumathi [P1] Devaraj [D3] Ethiraj [D4] =Krishnamoorthy (died on 17.9.2003) | ----------------------------------- | | | K.Govardhana S.Revathi V.Bharathi @ Balaji [P2] [P3] [P4] 3. Case of Plaintiffs is that 1st Plaintiff's husband Krishnamoorthy, 1st Plaintiff and Defendants 1 and 2 have jointly carried on brick manufacturing business in the name of "Bharathi Brick Works" at Vellaivayal village, Ponneri Taluk and they are the absolute owners of the said Bharathi Brick Works. From out of the brick business, they started to purchase properties in the name of 1st Plaintiff and Defendants 1 and 2. Thereafter, they sold Bharathi Brick Works and from out of the sale proceeds, they purchased the house bearing Door No.6/1, 3rd Circular Road, Jawahar Nagar, Chennai- 82. 1st Plaintiff and Defendants 1 and 2 have purchased lands for running brick chambers at Kalmedu village and started Ruby Brick Works I and II. From and out of the income derived from the said brick business, they purchased lands at Madavalagam village in the name of 1st Defendant and started a business in the name of Rasi Brick Works and a portion of the land on which the said Rasi Brick Works was started stood in the name of 1st Plaintiff's husband Krishnamoorthy. In the land purchased at Madavalam village, a business in the name of Babu Brick Works was also started. From out of the said brick business, several properties and four wheelers including lorry and other vehicles were purchased. After the death of 1st Plaintiff's husband Krishnamoorthy, the Defendants with malafide intention purchased several properties from the income derived out of the joint brick business in their name and rented the brick kiln and was collecting the rental income. Inspite of request by the Plaintiffs to pay their share, Defendants are evading and are gaining themselves. Further case of Plaintiffs is that the suit properties are the joint and common family properties of both Plaintiffs and Defendants. Hence, Plaintiffs have filed the suit seeking for partition of the suit properties into two equal share by metes and bounds and allot one share to the Plaintiffs by passing preliminary decree. 4. Along with the suit, Plaintiffs have filed two applications in O.A.Nos.1117 and 1118 of 2009 seeking to appoint a Receiver to manage and administer the properties and also to collect the income from the suit properties. In their affidavit, Appellants alleged https://hcservices.ecourts.gov.in/hcservices/ that exercising their muscle power, Respondents-Defendants are restraining the Appellants from entering into the suit properties and are unlawfully gaining the income derived from the brick business. Respondents-Defendants are also trying to dispose of the stocks of the bricks at a cheap price thereby, causing huge loss to the business and in order to curb the fraudulent acts of the Respondents- Defendants, a Receiver has to be appointed to manage and administer the suit properties and to collect the income from the business. 5. Respondents-Defendants have resisted the applications contending that the suit itself is not maintainable for want of cause of action. Though the Plaintiffs have pleaded that the suit properties belong to the partnership firms, Plaintiffs have not impleaded the partnership firms as parties to the suit. Respondents averred that the suit properties are the absolute properties of Defendants and Plaintiffs have no right or title over the same. Before filing of the suit, Plaintiffs have not made any demand for partition of the suit properties. Since the suit properties belong to the Defendants, appointment of Receiver is totally untenable and prayed for dismissal of the applications. 6. Upon consideration of rival contentions, learned single judge held that some of the suit properties also stand in the name of Defendants and therefore, appointment of Receiver in both the applications does not arise and in any event, if the Plaintiffs succeed in the suit, they would be entitled to get mesne profits from the concerned parties. Observing that Respondents-Defendants are manufacturing the bricks and selling the same, the learned single Judge directed the Respondents-Defendants to deposit a sum of Rs.1,00,000/- for every year till the disposal of the suit to the credit of the suit. Being aggrieved by the above order, Plaintiffs have preferred these appeals. 7. Mr.S.Palanirajan, learned counsel for Appellants has firstly contended that since the 1st Plaintiff's husband Krishnamoorthy was a partner and since the other properties were purchased from out of the income derived from the partnership firm, learned Judge ought to have appointed the Receiver. It was further submitted that to safeguard the interest of the properties, the learned Judge ought to have appointed the Receiver. 8. Refuting the above contentions, Mr.Ashokpathy, learned counsel for Respondents would submit that the properties stand in the name of individual Defendants and the learned Judge rightly declined the appointment of Receiver. 9. Considering the submissions and by perusal of the records, we find that some of the suit properties stand in the name of the Defendants. Parents of 1st Plaintiff viz., Defendants 1 and 2 are also alive. In such circumstances, we do not think that appointment https://hcservices.ecourts.gov.in/hcservices/ of Receiver would be justified. A Receiver is not merely to be appointed simply because it would be expedient to do so. No order will be made to deprive the Defendant of possession. The discretion to appoint Receiver is to be exercised with great care. Since the parents are alive and the Respondents-Defendants are also said to be running the business, the learned Judge has rightly declined to appoint the Receiver and we do not find any reason to interfere with the finding of the learned Judge. 10. Insofar as the quantum, the learned counsel for Appellants has contended that the family owns vast extent of properties and also number of brick kiln and Respondents-Defendants are doing extensive business and while so, the quantum of Rs.1,00,000/- directed to be deposited is very meagre sum. Learned counsel would further submit that 1st Plaintiff is a widow and that she has to take care of the family consisting of herself and one son and two daughters. The amount of Rs.1,00,000/- per annum is a pittance amount and prayed for enhancement of the said amount. Drawing our attention to the letter written by the Respondents-Defendants to Govarthana [2nd Plaintiff], learned counsel for Appellants contended that the business was always treated as family business. 11. Drawing our attention to the affidavit filed in the appeals [M.P.Nos.1 and 1 of 2011 in O.S.A.Nos.213 and 214 of 2011], learned counsel for Respondents would submit that the value of the brick kilns and the other properties have been highly exaggerated to boost up the figure. Drawing our attention to Paragraph 5 of the counter- affidavit filed in the M.Ps, the learned counsel for Respondents would submit that after the impugned order came to be passed, 1st Respondent-1st Defendant has paid a sum of Rs.1,00,000/- to the Plaintiffs. It was further submitted that in addition to the said sum of Rs.1,00,000/-, 1st Defendant has also gifted jewels to the 2nd Plaintiff and 1st Defendant is paying the insurance premium to the vehicles and is also paying monthly payment of Rs.10,000/- to the Plaintiffs. 12. We have considered the rival submissions and also gone through the various items of suit properties mentioned in the plaint schedule. Admittedly, the family owns number of items of immovable properties shown in the plaint. Admittedly, the family is doing the brick business by operating number of brick kilns. Even though the Respondents-Defendants deny that the brick kiln are family business, by perusal of the letter said to have been written by the Respondents prima facie it is seen that the Respondents-Defendants seems to have admitted that "it is a family business". However, it is a matter to be decided at the time of trial in the suit and we do not propose to delve in to the matter. 13. Respondents-Defendants are also said to be operating number of vehicles and the details of which are elaborated in the plaint https://hcservices.ecourts.gov.in/hcservices/ schedule. All the vehicles are said to be used mainly for transporting the bricks. Even by a reading of the plaint averments, it is seen that Respondents-Defendants are doing extensive business in the brick kiln. Case of Appellants is that the entire partnership business was originally started from out of the funds of the deceased Krishnamoorthy who is the husband of 1st Plaintiff and on that footing the Plaintiffs seek for partition of the suit properties. The contentious issues arising between the parties will have to be decided only at the time of trial. Suffice it to note, having regard to the number of items of immovable properties owned by the family and also taking note of the brick kiln work done by the Respondents-Defendants, we feel that the amount of Rs.1,00,000/- directed to be deposited every year till the disposal of the suit by the learned Judge is very meagre. 14. Considering the extent of business and taking note of the fact that 1st Plaintiff is a widow, it would be appropriate to direct the Respondents-Defendants to deposit a sum of Rs.6,00,000/-(Six lakhs) per annum. The amount of Rs.6,00,000/- is to be deposited in two instalments every year commencing from 01.01.2011. For the year 2011, the first instalment of Rs.3,00,000/- (Three lakhs) payable is to be deposited before 30.11.2011. The second instalment of Rs.3,00,000/- (Three lakhs) is payable on or before 31.12.2011. An amount of Rs.1,00,000/- said to have been paid by the Respondents- Defendants directly to the Appellants-Plaintiffs shall be deducted from out of the first instalment of Rs.3,00,000/-. Out of first instalment deposited, Appellants-Plaintiffs are permitted to withdraw Rs.50,000/-. From out of the instalments deposited thereafter, the Plaintiffs would be permitted to withdraw Rs.1,50,000/- (One lakh fifty thousand) per instalment and the balance Rs.1,50,000/- shall be kept in the Court. 15. Learned counsel for Respondents-Defendants has submitted that Respondents-Defendants have been paying an amount of Rs.10,000/- every month to the Appellants and also paying the insurance premium. It is open to the Respondents to produce the accounts relating to the insurance premium and the amount of Rs.10,000/- said to have been paid every month to the Appellants while ascertaining the mesne profits to be adjusted. 16. In the result, modifying the order of single Judge in A.Nos.1117 and 1178 of 2008 [24.11.2010], this appeal is partly allowed. The Respondents-Defendants are directed to deposit a sum of Rs.6,00,000/- (Six lakhs) per annum to the credit of C.S.No.956 of 2009. For the year commencing from 01.01.2011, the amount of Rs.6,00,000/- is to be deposited in two instalments. The first instalment of Rs.3,00,000/- (Three lakhs) payable is to be deposited before 30.11.2011. The second instalment of Rs.3,00,000/- (Three lakhs) is payable on or before 31.12.2011. An amount of Rs.1,00,000/- said to have been paid by the Respondents-Defendants https://hcservices.ecourts.gov.in/hcservices/ directly to the Appellants-Plaintiffs shall be deducted from out of the first instalment of Rs.3,00,000/-. Out of the first instalment deposited, Appellants-Plaintiffs are permitted to withdraw Rs.50,000/- and the balance amount shall be kept in the Court. From the next year 2012 onwards, the first instalment is to be deposited on or before 30th June and the second instalment is to be deposited on or before 31st December. From out of the instalments deposited, the Plaintiffs would be permitted to withdraw Rs.1,50,000/- (One lakh fifty thousand) per instalment and the balance Rs.1,50,000/- shall be kept in the Court towards the credit of C.S.No.956 of 2009. Consequently, connected M.P. is closed. There is no order as to costs. After we have passed the order, the learned counsel for Respondents-Defendants has submitted that Respondents-Defendants have already filed the written statement in the suit and that the 1st Respondent is aged about 80 years and the trial of the suit could be expedited. Having regard to the submissions of the learned counsel for Respondents-Defendants, the learned single Judge is required to take up the suit C.S.No.956 of 2009 at an early date. Sd/- Deputy Registrar //true copy// Sub Asst.Registrar bbr To The Sub Assistant Registrar, Original Side, High Court, Madras. 1 cc to M/s.Pass Associates, Advocate, Sr.No.70217 2 cc to Mr.S.Palani Rajan, Advocate, Sr.No.69952, 69953 Judgment in O.S.A.Nos.213 & 214 of 2011 SJ {CO} TP/29.11.2011. https://hcservices.ecourts.gov.in/hcservices/