THE HON’BLE SRI JUSTICE V.V.S. RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA CIVIL MISCELLANEOUS APPEAL No.732 of 2009 22.1.2010 Between: B.Chinna Reddeppa, S/o.Lakshmaiah … Appellant AND Smt.Bathala Shanthamma, W/o.Pedda Reddeppa And others … Respondents THE HON’BLE SRI JUSTICE V.V.S. RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA CIVIL MISCELLANEOUS APPEAL No.732 of 2009 JUDGMENT: (Per Hon’ble Sri Justice V.V.S.Rao) This miscellaneous appeal is by first defendant in O.S.No.36 of 2008 on the file of the Court of the II Additional District Judge at Madanapalle, Chittoor District. By impugned order dated28.4.2009 in I.A.No.583 of 2008, the Court below while declining to appoint receiver to take possession of suit schedule property and administer the same, directed appellant herein to deposit an amount of Rs.25,000/- per month for every half year to the credit of the suit till its disposal. Pedda Reddeppa (husband of plaintiff, Shanthamma) and Chinna Reddeppa (first defendant/appellant herein) are sons of late Lakshmaiah. They constituted Hindu joint family. Shanthamma instituted the suit being O.S.No.36 of 2008 for partition and separate possession of her half share in the suit schedule property, which is a lodging house known as Avanthi lodge in Madanapalle. She alleged that she and her brother-in-law; appellant herein – jointly purchased Acs.0.17 cents of vacant site situated at Patel Road, Madanapalle under registered sale deed dated 21.4.2009. Subsequently they constructed two shop rooms in the ground floor of lodge by demolishing old structure and some time in 1990 first floor of the lodge was raised. It is further alleged that both of them raised money by borrowing from private persons and Nationalised banks and that she also invested her sthreedhana. She alleged that first defendant managed suit schedule lodge on her behalf and used to share the income from the lodge and two shop rooms in the ground floor. First defendant however failed to share the profits and acted in a manner detrimental to the interest of plaintiff. She also alleged that first defendant is collecting an amount of Rs.4,500/- per month from defendants 2 and 3 who are tenants of shops and getting an income of Rs.5,000/- per day from the suit schedule lodge located in Bengaluru bus stand. The plaintiff therefore got issued legal notice to first defendant for partition of suit schedule property, in vain. Hence she filed the suit. She also filed I.A.No.583 of 2008 for appointment of receiver and further alleged that first defendant failed to account for the income and acted in a manner detrimental to the interest of the plaintiff and also resorted to acts of waste. The application was opposed by the first defendant. He alleged that he and his brother, Pedda Reddeppa, constituted joint family, that his brother was managing the family, that suit schedule lodge was purchased by them duly obtaining sale deed in the name of first defendant and plaintiff, that all the properties of the family including Avanthi lodge and Avanthi Theatre were acquired by them. He also alleged that on 03.10.1999 Pedda Reddeppa executed partition list under which Avanthi Theatre, shop rooms at Apparao Street and vacant site adjacent to Theatre and other properties were allotted to Pedda Reddeppa and Avanthi lodge and a house at Gundluru Street were allotted to first defendant. Subsequently on 09.2.2000, a family arrangement in writing was entered into. The allegation that suit schedule lodge is jointly owned by plaintiff and first defendant, was denied stating that it is joint family property. Insofar as income is concerned, he alleged that he is getting Rs.10,000/- per month though he is paying Rs.30,000/- towards house tax, Rs.15,000/- per month towards electricity charges and incurring maintenance expenses in a sum of Rs.5,000/- per month. He also stated that he filed O.S.No.5 of 2009 for partition. On considering the rival contentions, the Court below came to the conclusion that though receiver may not be appointed, it is a fit case to make some arrangement and accordingly directed the first defendant to deposit Rs.25,000/- per month for every half year failing which receiver shall be appointed. The Court below also relied on Anupama Homes India Pvt. Ltd v P.Shouri Raja[1], T.Bhoopal Reddy v K.R.Laxmi Bai[2] and Kamal Chaudhary v Rajendra Chaudhary[3]. The relevant observations from the order of the Court below are as follows. In the instant case, even though the alleged partition of the schedule property along with other properties between the husband of the petitioner and the first respondent took place in the year 1999 in the shape of partition list and the deed of family arrangement, but it seems no steps have taken by the first respondent in securing the registered documents of relinquishing of the respective shares in terms of partition list till the filing of the suit in O.S.No.5 of 2009 by the first respondent, which is admittedly filed subsequent to the filing of the subject matter of the suit. Though the petitioner has shown that the petition schedule lodge is being running in profits, but the first respondent is trying to give gloomy picture that whatever the income is fetching from the said lodge is meeting only to the maintenance of the lodge, but the first respondent has failed to produce the account books. Admittedly the petition schedule lodge is located in prime locality in a commercial area in Madanapalle Town and the said lodge comprises of nearly 20 rooms or so apart from the shop rooms being let out on rents to others. Then it is unbelievable of earning of Rs.15,000/- per month from the suit schedule lodge and the shop rooms therein. So the petitioner being a lady and away from the possession and management of the lodge and the unfairness of the first respondent by not coming up with the account books that too when the petitioner has got comparatively good prima facie case, it is a fit case to make some arrangement, if not appoint of the receiver of the commissioner directly, in the interest of both parties during the pendency of the suit. Learned Counsel for appellant submits that after family arrangement in 1999, appellant has been in possession of Avanthi lodge and, therefore, appointment of receiver or a direction to receive money is not warranted. He submits that suit schedule property is joint family property and as per the partition list Ex.R8 and family arrangement Ex.R9, Avanthi lodge was allotted to appellant and in a suit filed by elder brother after lapse of about nine years, a receiver cannot be appointed. Thirdly he submits that no evidence was let in to show that the appellant is resorting to acts of waste. Lastly he submits that direction of Court below to deposit Rs.25,000/- per month for every half year is erroneous. Per contra, learned Counsel for first respondent/plaintiff submits that plaintiff contributed money from out of sthreedhana for purchase of vacant site and for construction of lodge and, therefore, fairness requires a direction to first defendant to deposit the amount pending the suit. He also points out that his client is ready to deposit Rs.30,000/- per month if she is given possession and control over management of suit schedule lodge. Ex.R8 partition list and Ex.R9 family arrangement assume importance in view of the allegation made by plaintiff that the suit schedule property was purchased and lodge was developed with contribution by her and that he husband Pedda Reddeppa had no right in the property. Ex.R8 is partition list signed by both the brothers. As rightly pointed out by learned Counsel for appellant suit schedule lodge was allotted to first defendant. This is further corroborated by Ex.R9 family arrangement dated 09.2.2000. A perusal of the same would show that till execution of the partition list both the brothers were living jointly and enjoying joint family properties. They developed the properties from joint family funds. It is also stated therein that all the properties whether they are purchased in the name of the brothers or their spouses are joint family properties and they are being divided between them. These two documents would show that Avanthi lodge which was admittedly purchased in the name of plaintiff and first defendant in fact belonging to joint family. Learned Counsel for plaintiff however disputes Exs.R8 and R9 on the ground that being unregistered documents, they are not admissible in evidence. We are not impressed with this argument. At the stage of interlocutory application, we are concerned with prima facie aspects of the case for the purpose of the application under Order XL Rule 1 of Code of Civil Procedure 1908. Secondly there are circumstances to indicate the nature of joint family possessions even if some one doubts the averments in Exs.R8 and R9. For instance when the plaintiff and first defendant allegedly purchased vacant site and constructed houses and when admittedly first defendant was managing the lodge from the beginning, curiously suit was filed in 2008. Be it noted that first defendant got issued legal notice dated 04.2.2003 to plaintiff and her husband stating that in the earlier legal notice dated 09.11.2002 they were called upon to the office of Sub-Registrar, Madanapalle, on 18.11.2002 for preparation and registration of the partition deed in respect of two items of the property, which were allotted to him under Ex.R8. But the plaintiff and her husband did not do so. Therefore, prima facie we are satisfied that the suit schedule lodge fell to the share of first defendant, that at least from 1999 he is managing and enjoying the income from Avanthi lodge and that ordinarily in such a case a receiver cannot be appointed. Of course, it is ultimately a mixed question of fact and law as to whether Exs.R8 and R9 are admissible in evidence and if both of them are rejected what would be the rights of respective parties. By saying so as above, we do not mean the plaintiff should be non-suited or she has no right to claim for interim order to protect her interest. Presumably for this reason, the Court below directed first defendant to deposit Rs.25,000/- per month for every half year. There is some dispute before us on this amount. When initially the matter was heard by us on 31.12.2009, we suggested to the parties to come forward with some agreed amount, in vain. Today as noticed supra, learned Counsel for plaintiff stated that his client is willing to deposit Rs.30,000/-. This we cannot accept for the reason that no such statement was made before the Court below. Secondly, first defendant admitted before the Court below that an amount of Rs.15,000/- per day is generated by Avanthi lodge. Keeping this in view, we direct appellant/first defendant to deposit a sum of Rs.10,000/- per month commencing from 01.5.2009 to the credit of O.S.No.36 of 2008 on the file of the Court of II Additional District Judge at Madanapalli. The said amount for the month of January shall be deposited on or before 5th February 2010 and thereafter on 5th of every succeeding month. The arrears at the rate of Rs.10,000/- with effect from 01.5.2009 shall be deposited within a period of eight weeks from today. As and when the arrears are deposited and as and when the monthly amounts are deposited, it shall be open to plaintiff (first respondent herein) to withdraw the said amount without furnishing security but giving undertaking that she shall pay back the amount in the event of the Court below dismissing the suit. The civil miscellaneous appeal, to the extent indicated herein above, is partly allowed. No costs. _______________ (V.V.S.RAO,J) ______________________ (B.N.RAO NALLA,J) January 22, 2010 YS [1] 2007(6) ALT 122 [2] 1998(1) ALT 292 (DB) [3] AIR 1976 Pat 366