FARISHA BEEVI Vs. SHAMSUD BUHARI

JUDGEMENT

(1.) THESE two original side appeals arise out of the same order dated 3.10.1996 in O. A. No.420 of 1996 in C.S. No.49 of 1995 on the file of this Court. O.S.A. No.258 of 1996 is by defendants 1 and 2 in the said suit and O.S.A. No.290 of 1996 is by the plaintiff in the said suit. The said suit is for partition of the suit properties. The plaintiff is the brother and defendants 1 and 2 are his sisters, all the three being the children of one R.M.Basha, who died on 27.10.1993 and his wife Rahima, who died on 18.6.1994. The applicant in the abovesaid O.A. No.420 of 1996, who is the 1st respondent in O.S.A. No.258 of 1996 and 3rd respondent in O.S.A. No.290 of 1996, is the first wife of the plaintiff and the said O.A. prayed for an order of appointment of Receiver in respect of the suit properties and the said application has been allowed by the impugned order dated 3.10.1996, whose material portions run as follows:

(2.) IN the light of the relevant features of the case and in the light of the argument we have heard from learned Counsel for the appellants in O.S.A. No.258 of 1996, learned counsel for the appellant in O.S.A. No.290 of 1996 and learned counsel for the said proposed party, we are unable to appreciate the abovesaid reasoning of the learned trial Judge for coming to the abovesaid conclusion that it is just and proper to appoint a Receiver to take charge of the suit properties. First of all, it must be noted that the said proposed party, the first wife of the plaintiff in the suit, is admittedly not entitled to any share in the suit properties. In the suit, the plaintiff no doubt prays for partition of his alleged 20 -27th share in all items of suit properties. According to him, his sisters, defendants 1 and 2, in their common defence, claim exclusive ownership to certain items of the suit properties, while with reference to other properties, they together claim half share in them. At any rate, admittedly, the said proposed party does not claim any share in nay of the suit properties.

(3.) THIRDLY , in relation to the observation of the learned trial Judge that the plaintiff gave an undertaking before the Division Bench of this Court to pay maintenance at the rate of Rs. 10,000 per month to his wife, the abovesaid proposed party, it is represented by the learned counsel for the abovesaid proposed party that the said undertaking was given before a Division Bench of this Court in O.S.A. No.92 of 1991, which was filed by the plaintiff herein and his wife, the proposed party herein, against the plaintiff -s parents and the said O.S.A. was filed against the order in Application No. 1418 of 1991 in O.P. No. 163 of 1990, relating to custody of the plaintiff -s two daughters who were then minors. The representation of the learned counsel for the proposed party that the abovesaid undertaking for payment of Rs. 10,000 as maintenance, was given in the said O.S.A. No.92 of 1991 and was recorded in order dated 19.12.1991 therein. But, what we find in the said order dated 19.12.1991, in relation to the abovesaid undertaking is only as follows: