LAKSHMI AMMA Vs. RUGMANI AMMA

JUDGEMENT

(1.) It was open to the contesting defendants to contend, as indeed they have done, that the suit should be dismissed as being one for a partial partition. It was also open to them to institute a suit for partition themselves, including therein the joint family properties which they allege were left out by the plaintiff. But I do not think - nor is it claimed - that the defendants in such an action can compel the plaintiff to ask for a partition of properties which he does not want, or that the court can give a decree for partition in respect of properties not included in the plaint. The fiction that in a partition suit every defendant claiming a share is a plaintiff is limited, I think, to matters within the scope of the plaint and cannot be extended to matters outside it. That being so, it seems to me apparent that, what I might call the excluded properties, are in no sense, whether directly or indirectly, the subject matter of the suit, and that therefore the court had no jurisdiction to appoint a receiver for them under the provisions of Order XL, R.1, C.P.C. True the defendants claimed that those properties also should be included in the suit and partitioned, but so long as the plaint excludes them, and has not been amended so as to include them, they are in no sense within the scope of the suit. My attention has been drawn to para 6 of the plaint wherein it is said that, if the court finds that there are other properties belonging to the family, they also may be included within the suit and a decree passed for their partition. This it would appear, does not really cover the excluded items which the plaintiff in Para.4 and 5 of his plaint expressly averred were the separate properties of the 1st defendant. But even if it did, that would not make the properties the subject matter of the suit until they are included in the plaint, something which the plaintiff is not willing to do and which, of course, is objected to by the 1st defendant.

(2.) I am aware that the wording of Order XL, R.1 is very wide compared with the wording of the old S.503 of the Code. In particular, the power given to the court is to appoint a receiver of any property and there are no express words restricting the appointment to the subject matter of the suit. But the object of the rule is to protect such rights of the parties as may be involved in the suit, and it can never be just and convenient to appoint a receiver for property in respect of which no relief of any kind can be obtained in the suit or in execution of the decree made therein. The case in Marulasidda Raja v. Siddalinga Raja (XVII Indian Cases, page 16), a Division Bench ruling of the Madras High Court is directly in point, and even the cases relied upon by the defendants namely, Kshitish Chandra v. Bengal Central Bank Ltd. (LIII Calcutta Weekly Notes 1 D. R. page 81), Madhu Lal v. Ramji Das (AIR 1953 Madhya Bharat page 85) and A.R.A.R.A.L.Chettyar Firm v. U. Sin (AIR 1935 Rangoon 398) recognise that ordinarily a receiver cannot be appointed for property which is not the subject matter of the suit. In exceptional circumstances, where special equities are shown, there may be such an appointment. But, in all those cases, the exception contemplated is where, as in a suit for money, the plaintiff would be in a position to proceed against the property in execution.

(3.) I have been referred to what is said at pages 42, 55 and 90 of Woodroffes Law relating to Receivers (5th Edition) but I find that all that has been said there is in favour of rather than against the view I am taking.