K.KARUTHAMMAL Vs. R.KASAMMAL

JUDGEMENT

(1.) The plaintiffs in O.S.No.19 of 2013, which is a suit for declaration that certain documents are sham and nominal/unenforcible and for a consequential relief of partition are the appellants. The challenge in this appeal is to the order dismissing I.A.No.221 of 2013, an application for appointment of Receiver. In the affidavit filed in support of the said application for appointment of receiver in I.A.No.221 of 2013, it is stated that all the suit properties are house properties situated in and around Madurai City and a large income is earned as rental income from the said properties. It is also claimed that the second defendant has fabricated certain gift deeds in favour of the third defendant. The affidavit accuses the second defendant/second respondent, who is said to be in management of the alleged joint family properties of misappropriating the rental income accrued from the suit properties and also tampering of records.

(2.) Paragraph No.5 of the affidavit filed in support of this petition is extracted for useful reference:

(3.) The said application was opposed by the defendants. The defendants would contend that the suit properties are not joint family properties and all the plaintiffs have executed documents relinquishing their rights in the suit properties as early as in 2007. Therefore unless the documents executed in the year 2007 by the plaintiffs themselves are set aside by a process known to law, the plaintiffs cannot maintain a suit for partition. It is also further contended that in the absence of the allegation of waste, an application under Order 40 Rule 1 of CPC., seeking appointment of a receiver cannot be entertained. The learned Trial Judge/IVAdditional District Judge, Madurai, after considering the rival contentions, dismissed the application by an order, dtd. 12/9/2015. Aggrieved by the said order, the appellants herein namely, the plaintiffs in the suit had filed a Civil Revision Petition before this Court in C.R.P.(MD).No.1454 of 2016. Though Civil Revision Petition was originally entertained by this Court, subsequently it was held that Civil Revision Petition is not maintainable and hence only an appeal would live. Therefore, the learned counsel for the petitioner sought to withdraw the C.R.P. (MD).No.1454 of 2016 with liberty to file a proper appeal. This Court has granted the liberty by an order, dtd. 21/3/2017 and thereafter the present appeal has been filed.