T MEENAKSHI AMMA Vs. AMMUNNI AMMA

JUDGEMENT

(1.) This appeal is by the plaintiffs 1 to 3 in a suit for partition and is directed against an Interlocutory Order in the case, rejecting their application for appointment of a Receiver in respect of the plaint schedule properties.

(2.) The appellants 1 to 3 and the respondents 1 to 12 are members of a Nair tarwad in Calicut taluq. They had all joined in 1944 to refer to single arbitrator, the division per capita of their tarwad properties scheduled as A and B to the suit and also of the C Schedule Putravakasam properties as among the parties entitled. On account of the alleged dilatory tactics of the opposite parties in 1947 the plaintiffs approached the court for cancellation of the reference. Ultimately in 1950 the matter was compromised between all the parties, so as to allow the arbitrator to function and bring out his award as early as possible. Vide Ext. B2 petition. On 22-5-1954, however, the respondents 1 and 3 who were the seniormost female and male members in the tarwad and were therefore under the family karar, in possession of the properties, wrote to the arbitrator refusing further cooperation. It was on this account that the plaintiffs soon after, filed this suit, and the application for receiver along with it. In the suit, the plaintiffs claimed partition by metes and bounds of their 3/16 share in A and B schedule properties and of 1/6 share in the C schedule properties. In the Receiver application they prayed that all the A and C schedule properties be entrusted to Receiver for purpose of their protection and conservation. The suit and the application were resisted chiefly by the respondents 1 and 3. Some of the defendants supported the plaintiffs and some others, the respondents 1 and 3

(3.) The court below in disposing of the petition against the plaintiffs relied mainly on two considerations. Firstly, that the respondents 1 and 3 were entitled to be in undisturbed possession in their capacity as managers under the family karar, until at any rate partition was effected under the decree in the case, and secondly that the arbitration proceedings so far not put an end to formally, must be a bar to the suit itself. The court also found incidentally that the profits of the properties of which the plaintiffs were kept out, if measured by the estimate in the plaint, was rather low and could easily come out of the respondents shares in the groups Further that the suits already filed and pending, for recovery of arrears of jenmi dues, did not mean any imminent sale of any tarwad properties and therefore did not matter. Learned counsel for the appellants says that this reasoning is totally unsubstantial and it is only just and convenient in all the circumstances that Receiver should be appointed as prayed for. We think there is a good deal of force in this argument.