THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No. 438 of 2009. JUDGEMENT: (Per the Hon’ble Sri Justice B.N.Rao Nalla) The present appeal is filed against the order dt. 19.1.2009 in I.A.No. 1431 of 2008 in O.S.No. 281 of 2006 on the file of the learned Chief Judge, City Civil Court, Hyderabad whereby the learned Chief Judge directed both the parties to furnish the particulars of the rents collected by them into court on or before 10th of every month and also furnish business accounts on or before 15th of May of every year, pending disposal of the suit. The 1st respondent who is the plaintiff filed I.A.No. 1431 of 2008 under Order XL Rule 1 CPC praying to appoint a Receiver to collect rents from the respondents 18 to 34 and to deposit the same into court and also to supervise various business concerns which are under the control of the respondents 10 to 17 and to file statements of accounts periodically into court. It is stated in the affidavit filed in support of the petition that the suit schedule properties i.e. items ‘A’ to ‘O’ are the joint family properties purchased from the joint funds and that the contribution of his father’s money and business is also involved in the nucleus and that the father of the petitioner and respondents 2 to 5 executed a Will bequeathing that only 15% of the properties shall be retained by the second respondent and the remaining 85% of the properties shall be divided into 5 equal shares and distributed amongst the five brothers and sisters and that the properties were not divided as per the said Will. It is further stated that some of the properties were purchased in the name of different family members for the purpose of convenience and that the businesses and properties are all joint properties and all the properties were acquired out of the joint contribution and joint efforts. It is further stated that various properties are under the occupation of the tenants who are respondents 18 to 34 and total rent of Rs. 17 to 18 lakhs is being collected by respondents 2 to 5 and that they are not showing proper accounts and mismanaging the accounts and in the circumstances, it is prayed to appoint a Receiver for the relief already adverted to above. The respondents 2 to 9 and 12 filed separate counters denying the allegation of mismanagement and also stating that petitioner has been receiving rents of Rs. 1,00,000/- from Schedule ‘C’ and ‘E’ properties and he is also holding a deposit of Rs. 20,00,000/- in his name and that the petitioner parted from the joint family in the year 1993 itself and in the circumstances, it is prayed to dismiss the petition. The Court below after hearing both the parties passed the impugned order. Aggrieved by the said impugned order, the respondents 1,2,6, 11,14, 15 and 17 filed the present appeal. It is contended by the counsel for the appellants that the Court below having concluded that the ingredients of Order XL Rule 1 CPC are not attracted, it ought not to have given any direction and that the Court below failed to appreciate the fact that the averments made in the present application are similar to the averments made in I.A.No. 2298 of 2006, which was dismissed. It is further contended that the court below ought not to have directed the parties to file statements of accounts in view of the fact that the petition for injunction in I.A.No. 2298 of 2006 was dismissed. It is further contended that court below having dismissed the injunction petition on the ground that the properties were not acquired by late father of the parties but by the efforts of the 2nd respondent, ought not to have directed the parties to file statements of accounts. On the other hand, the learned Counsel for the 1st respondent supported the order under appeal. We have heard the learned Counsel for the parties. Now the point that arises for consideration is whether the order under appeal can be sustained. Point:-The case of the 1st respondent/plaintiff is that the plaint schedule properties i.e. items ‘A’ to ‘O’ are the joint family properties of himself and the defendants 2 to 5 and therefore he is entitled for 1/5th share in the plaint schedule properties. He filed the present petition for appointment of a Receiver for collecting rents from the respondents 18 to 34 and for depositing the same into court and for supervision of various business concerns which are under the control of respondents 10 to 17 and for filing statement of accounts, on the ground that the appellants are mismanaging the properties and they are not showing proper accounts. On the other hand, the contention of the appellants is that the 1st respondent/plaintiff separated from the joint family in the year 1993 itself and he has been collecting rents of Rs. 1,00,000/- from schedule ‘C’ and ‘E’ properties apart from having a fixed deposit of Rs. 20,00,000/- in his name and, therefore, the contention of the 1st respondent/plaintiff is without any basis. It is not out of place to note here that the 1st respondent/plaintiff filed I.A.No. 2298 of 2006 for temporary injunction against the appellants and other respondents seeking a direction to them not to alienate the suit schedule properties, pending disposal of the suit and that the said I.A. was dismissed on 7.3.2007 and as against the said order, the 1st respondent/plaintiff filed C.M.A.No. 272 of 2007 before this Court and this Court dismissed the CMA observing that the appellant’s rights are sufficiently protected under the principles of lis pendence and also the alienation of whatsoever nature by any of the respondents or third parties would not come against the appellant at the time of working out the equities in the final decree. The 1st respondent/plaintiff mainly relied on the Will dt. 21.4.1986 alleged to be executed by their late father Dharmapuri wherein it is specifically stated that 15% of all the properties shall be retained by the 2nd appellant/2nd defendant and the remaining 85% of the properties shall be divided into five equal shares and distributed among the plaintiff and defendants 2 to 5. The trial court in I.A.No. 2298 of 2006 (injunction petition) after appreciating the recitals in the Will gave a finding that the 2n d defendant purchased the entire properties with his funds and that the testator cannot execute a will in respect of the properties which are not his self-acquired properties and that it was the wish of the testator that the 2nd defendant shall take 15% of all the properties and the remaining 85% of the properties shall be distributed amongst his brothers and sisters and the said finding of the trial court is confirmed by this Court in C.M.A.No. 272 of 2007. From the dismissal of the injunction petition and confirmation of the same by this Court, it leads to the conclusion that the 1s t respondent/plaintiff prima facie failed to establish that the plaint schedule properties are the joint family properties. In the order under appeal, the learned Chief Judge held that the petitioner has made averments that the 2nd respondent is mismanaging the properties and that there is likelihood of wastage of properties but no specific instances have been given by the petitioner and in the absence of any such specific instances or particulars of wastage or mismanagement, mere allegation of the petitioner may not be sufficient to accept his contention and put the entire business and properties in the hands of a Receiver. The learned Chief Judge having held as above, he ought to have stopped there and dismissed the petition. The order of the learned Chief Judge directing both the parties to furnish the particulars of the rents collected by them into court on or before 10th of every month and further directing both the parties to furnish their business accounts on or before 15th of May of every year, pending disposal of the suit merely because both the parties are collecting huge amounts by way of rents, does not hold good and the same is liable to be set aside, particularly in view of the adverse finding of the learned Chief Judge against the petitioner in injunction petition. In the event, the 1st respondent/plaintiff succeeds in the suit, he can file a petition for mesne profits and recover the amounts which he is entitled as per the final decree, from the appellants and other respondents. For the foregoing reasons, we are of the view that the order under appeal is not sustainable and the same is accordingly set aside. The appeal is accordingly allowed. There shall be no order as to costs. ___________________ V.V.S.RAO,J ___________________ B.N.RAO NALLA,J 02.02.2010. Krb. THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No. 438 of 2009. DT. 02.02.2010.