IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 FAO.No. 64 of 2009() -------------------- AGAINST THE ORDER DATED 05/01/2009 IN IA.1351/2007 IN OS.205/2007 of PRINCIPAL SUB COURT,KOLLAM .................... APPELLANT/PETITIONER/PLAINTIFF -------------------------------------------------- ANZAR RAHIM,PALM GROVE, THEKKEVILA, KOLLAM. BY ADV. SRI.P.B.SURESH KUMAR SRI. LEO GEORGE RESPONDENTS: COUNTER PETITIONERS/DEFENDANTS --------------------------------------------- 1. AZAD RAHIM, MALIKA VEEDU,KOTTAKKAKOM WARD,KOLLAM-13. 2. LAILA ASLAM, BLUE MOUNT,KOTTAKKAKOM WARD, KOLLAM-13. 3. JAMEELA SALI, LEPPERRY HOUSE, ALISSERY WARD,NEAR COLLECTORATE,ALAPPUZHA. 4. SHAMEELA FAZAL, MANAPPATT HOUSE,NEAR CHRISTIAN COLLEGE,CANNANNOOR ROAD, CALICUT. BY ADV. SRI.G.SREEKUMAR (CHELUR) FOR R1 SMT.PREETHY KARUNAKARAN FOR R1 SRI.E.RAFEEK FOR R3 SRI.GOKUL DAS V.V.H. FOR R3 SRI.BABU KARUKAPADATH FOR R4 SRI.D.SOMASUNDARAM FOR R4 SMT. M.A. VAHEEDA BABU SRI. P.G. PRAMOD THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON19/10/2009, THE COURT ON 02/11/2009 DELIVERED THE FOLLOWING: K. M. JOSEPH & JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. NO: 64 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd Day of November, 2009. JUDGMENT M. L. Joseph Francis J., This appeal is filed by the petitioner/ plaintiff in I.A. No: 1351 of 2007 in O.S. No: 205 of 2007 on the file of Sub Court, Kollam. Respondents 1 to 4 herein are the counter petitioners in that petition. 2. I.A. No: 1351 of 2007 is a petition filed by the plaintiff in the suit under Order 40 Rule 1 of C.P.C. seeking appointment of a receiver to manage the petition schedule assets/ business and to bring the rental profits to the court for being shared in proportion to the share of parties till the disposal of the suit. 3. The case of the petitioner is briefly stated as follows: The petitioner is the plaintiff who filed the suit for partition of plaint schedule properties claiming 2/7 right over the same. The petitioner and counter petitioners are the children of late A.A. F.A.O . NO: 64 OF 2009 :2: Rahim and late Fathima Rahim. Their father died intestate on 31.8.1995 leaving behind their mother, petitioner and defendants (counter petitioners) as legal heirs. After the death of A.A.Rahim, the mother of petitioner was looking after all the assets including movable and immovable properties. While so, the mother died intestate on 22.5.2006 leaving the petitioner and counter petitioners as sole legal heirs. 4. In plaint 'A' schedule property, the deceased parents had put up a lake resort by name Jaladarsini fully furnished and equipped. After the death of father, mother was managing the said resort. After the demise of mother, the 1st defendant / counter petitioner arbitrarily assumed the administration of the assets including the management of said resort and took custody of valuable movables scheduled in the plaint 'D' schedule and other immovables and valuables. The said administration of assets can only tantamount to that of a tenant in common, for and on behalf of and for the benefits of other tenants in common. The 1st counter petitioner is liable to account to the petitioner and others, for all the F.A.O . NO: 64 OF 2009 :3: income and expenditure from the business and properties. It is alleged that the 1st counter petitioner was not allowing the petitioner to join in the administration of business and was misusing the income and profit derived from the plaint items for his personal gain. If he is allowed to continue his maladministration it will cause injury to the interest of the petitioner. Hence it is just and convenient to appoint a receiver to manage the plaint schedule assets/business. Accordingly he filed the petition. 5. The 1st counter petitioner filed his objection contending that the petition is not maintainable either in law or on facts. It is true that the petitioner and counter petitioners are the children of late A A Rahim and Fathima Rahim. He also admitted the fact that their father and mother died. But the statement that they died intestate is not fully correct. They settled a major portion of the properties by executing a settlement deed No.1606/95. At the same time, he admitted the fact that they were holding certain other items of immovable properties at the time of their death. After the death of their father, the properties stood in his name were under the F.A.O . NO: 64 OF 2009 :4: possession of their mother as co-owner and she was looking after the said properties, till her death. Further he made it clear that the plaint schedule items were owned and possessed by their parents jointly. 6. It is also a fact that a lake resort was jointly started by their parents in plaint A schedule property. Earlier, the resort was leased out to one Shajahan of Vilayil house, Thodiyoor, Karunagappally. Subsequently, the same was leased out to the wife of the 1st counter petitioner by late Smt. Fathima Rahim. When the said property was taken by the wife of 1st counter petitioner for rent from the prior tenant, she purchased all furniture, fittings and fixtures in it and spent huge amount for making further improvements. Hence the allegation that the Jaladarsini lake resort was run by late mother as functioning as today till her death is absolutely incorrect. In fact, it is in the exclusive possession of Rahianeth as she is a tenant of the building and hotel standing in plaint item A. He also admitted the fact that he is entitled to get 2/7 share of plaint items besides and additional share for the amounts that were spent by him for F.A.O . NO: 64 OF 2009 :5: discharging the loan liability of late Fathima Rahim in Co-operative Urban Bank, Kollam. This amount comes to Rs.15 lakhs. Further he is entitled to get other amounts spent by him for the family members to the tune of Rs.14,70,560/- after deducting the cash received from the plaint items. He has no objection in partitioning the properties among the sharers subject to the aforesaid claim. He denied the allegation that he assumed the administration of assets including the management of resort described n plaint A schedule and took custody of movables including the items described in D schedule illegally. He is keeping proper account for the same with regard to the income and expenditure of the property derived from B schedule and the rent collected from the lake resort. 7. Though he requested the petitioner and other sharers to verify the accounts or to take the responsibility of management of properties, the same was went futile as they did not take care to do so. Hence he denied all the allegations levelled against him by stating that the petition is filed by the petitioner with a view to harass him. There is no circumstances warranting appointment of a F.A.O . NO: 64 OF 2009 :6: receiver as the petitioner did not point out any of the incidents showing that the business are being mis-managed by him. Accordingly he prayed for the dismissal of the petition. 8. The counter petitioners 2 to 4 did not file any counter. 9. In the Sub Court for the purpose of enquiry, Exts.A1 to 16 and B1 to 5, C1 and C2 were marked. The learned Sub Judge on considering the matter found that the petition is devoid of any merit and it was dismissed. But the first counter petitioner was directed to keep proper accounts relating to the income, expenditure in respect of administration of the plaint schedule items and file audited accounts before the court on the last date of each quarter starting from 1.1.2009. Against that order, the petitioner / plaintiff filed this appeal. 10. Heard the learned counsel for the appellant and the learned counsel for the respondents. 11. Learned counsel for the appellant submitted that the resort Jaladarsini in plaint 'A' schedule properties in the suit is presently managed by the first respondent, who is the brother of the F.A.O . NO: 64 OF 2009 :7: plaintiff. The first respondent is collecting the rent from the building Nizar Complex in the plaint 'B' schedule property. Learned counsel for the appellant submitted that the first respondent is generating a minimum monthly income of Rs.1,25,000/- from the resort mentioned above from the month of May 2006, and that the first respondent is collecting Rs.41,060/- per month from the teneants in the building Nizar Complex since May 2006. The learned counsel for the first respondent submitted that the resort was rented out to one Shajahan and subsequently the same was leased out to wife of the first respondent by late Fathima Rahim on a lease arrangement in continuation with the lease agreement with the prior tenant. The learned counsel for the first respondent submitted that the first respondent is not collecting the rent from the building in the plaint 'B' schedule property and that tenants are remitting the rent directly to the Government as per the order of the Income tax department in connection with gift tax. If that be so, there is no necessity to appoint a receiver with regard to the plaint 'B' schedule property. The question whether the resort was rented out to the first F.A.O . NO: 64 OF 2009 :8: respondent's wife or not cannot be decided in this proceedings as she is not a party to the present proceedings. In this appeal the first respondent has produced audited accounts with regard to the resort for the period from 1.1.2009 to 30.9.2009. Learned counsel for the appellant submitted that the accounts produced by the first respondent will not show the actual profits derived from that resort. 12. Learned counsel for the appellant relied on decision reported in Arun Agencies V. St. Antony's Oil Mill (1989 (1) KLT 683) argued that the court can appoint a receiver even in money suit where it is necessary to render just and meaningful relief. In that decision, injunction was granted instead of appointment of receiver and the trial court was directed to dispose of the case as early as possible. In the decision reported in Poovamma and others V. Chennamma alias Parvathi and others (1998 A.I.H. C 1216 Karnataka), receiver was appointed in a suit for partition where some of the defendants were in possession in exclusion of plaintiff and other defendants. But in the decision reported in Nalam Saraswathi and others V. Madeti Satya rao and another (2003 F.A.O . NO: 64 OF 2009 :9: A.I.H.C 2322 Andhra Pradesh), the court declined to appoint a receiver in a suit for partition considering the facts and circumstances of that case. In the decision reported in Kamal Chaudhary and another V. Rajendra Chaudhary and others (AIR 1976 Patna 366), it was held that a receiver may be appointed in a partition suit when there is a good prima facie case and proof of waste or mis management is unnecessary. In that decision it was further held that opinion of the court of the first instance in the matter of appointment of receiver is of great weight. 13. In the present case, the lower court rejected the prayer to appoint a receiver but directed the first respondent to file audited reports regarding the income from the plaint schedule properties. The present suit is ripe for trial and if both sides co-operate, the suit can be disposed of by the trial court without any delay and all disputes between the parties can be resolved there. When it appears to the court to be just and convenient, the court can appoint a receiver for any property whether before or after the decree. In the present case, the first respondent has produced the audited report F.A.O . NO: 64 OF 2009 :10: with regard to the income from the resort in plaint 'A' schedule property. The question whether the income shown in the report is correct or not can be decided at the time of trial. The appointment of receiver is in the discretion of the court. Since the lower court has exercised that discretion judicially and according to the legal principles after consideration of facts and circumstances of the case we find no reason to interfere with that order. Accordingly this appeal is dismissed. However, there will be a direction to dispose the suit finally on or before 28.2.2010. There is no order as to costs. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/