SWAROOPI BAI Vs. BHAGWANDAS

JUDGEMENT

(1.) THE sister, plaintiff in the trial Court is the appellant, pitted against her own brother who figured as defendant in the trial Court and is respondent No. 1 in this appeal. She is aggrieved because her prayer for appointment of a Receiver in the Partition Suit she instituted, has been rejected.

(2.) ADMITTED facts provide indeed the clue for the decision to be rendered in this appeal and they are few. Chhotelal, father of plaintiff/appellant and defendant/respondent, died in the year 1968. He has three separate houses in the Lohiya Bazar area of Gwalior city. One of the houses is occupied solely by defendant/respondent Bhagwandas, Chhotelal's son, for his residence. In a part of another house, plaintiff/appellant is residing and the third house is wholly and fully let out to tenants. In 1985, precisely on 21.11.1985, through her lawyer, Shri B.G. Apte, the plaintiff caused a notice to be sent to defendant Bhagwandas, stating that she was entitled to 1/3rd share in the properties of deceased Chhotelal. She was residing in a part of one of the houses owned by deceased Chhotelal during his life -time and she also stated that Bhagwandas had been managing the properties of Chhotelal, being the only son of Chhotelal. When she claimed her share from him of the rental income of the properties of deceased Chbotelal, that was refused to her. However, the further fact admitted is that the said defendant/respondent Bhagwandas instituted a suit in 1986 against his sister, plaintiff/appellant, for her eviction from the premises in her occupation on the ground of non -payment of rents since November, 1982.

(3.) THE short question to be decided is whether, in the facts and circumstances of the case, the plaintiff/appellant is entitled for an order of appointment of a Receiver in respect of the properties of deceased Chhotelal, now after lapse of 19 years merely because a partition suit bas been filed; alternatively, what other interim relief, in the facts and circumstances of the case, can be granted to her. Law, in my view, is well -settled that power to appoint a Receiver is a discretionary power and that discretion is to be exercised judicially "where it appears to the Court to be just and convenient" to make such an appointment; the purpose is to confer power on Receiver for, among others, realising rents and profits of the property and managing, protecting, preserving and making improvement of the property to be exercised in the manner as an "owner" does. That is the purport of sub -rule (1) of Rule 1 of order XL. CPC; and sub -rule (2) circumscribes the discretionary power of the Court contemplating that no person in possession or custody of the property can be removed by Court at the behest of any party to the suit who bas not a present right so to remove him.