TARA SINGH Vs. SURJADEO SINGH

JUDGEMENT

(1.) This appeal has been filed by the plaintiff, It is directed against an order dated the 21st of April, 1960, by which the learned Additional Subordinate Judge has dismissed an application filed by the plaintiff for the appointment of a receiver in Partition Suit No. 54 of 1957.

(2.) The short facts are these :-- On the 26th of June, 1957, the plaintiff filed the partition suit in question, as against other members of his family, including his four other brothers as defendants 10, 11, 12 and 13. The plaintiff claimed one-fifteenth share in the properties in suit, as according to the plaintiff, one-third of the properties devolved on the branch of Dinaj Singh, who left five sons including the plaintiff. It appears that on the 26th of March, 1958, the plaintiff had filed an application under Order 39 Rule 1 of the Code of Civil Procedure, asking for certain injunction, restraining defendant No. 1 from alienating any property in suit. On the 25th of April, 1958, an undertaking had been given by defendant No. 1 to the effect that he would not alienate any land in excess of his admitted share, without permission of the Court. Nothing seems to have happened until the 20th of July, 1959, when the present application under Order XL Rule 1 of the Code of Civil Procedure was filed. Upon hearing the parties, the learned Additional Subordinate Judge has held that the plaintiff had not been able to make out any case for the appointment of a receiver in this partition suit. According to the learned Judge, the plaintiff in his petition had only made certain vague allegations of waste and mismanagement against defendant No. 1, without giving any details of the same.

(3.) Learned Counsel for the appellant has contended that on the facts and circumstances of this case, the court should have appointed a receiver, and if necessary, defendant No. 1 should have been and should be appointed a receiver. Learned counsel has drawn our attention to the genealogy given in the plaint and has submitted that when the parties to the case were related, as shown, in the genealogy, and as a case has been set up by defendants Nos. 1 to 9, that there had been an earlier partition of the joint family properties, the substantial properties in the litigation should now be put in the charge of a receiver, so that the rights of the plaintiff may not be jeopardised, if the suit is ultimately decreed. Having heard learned counsel for the parties, it does not appear to me to be a fit case in which a receiver should be appointed during the pendency of this suit for partition. As indicated earlier, defendant No. 1 has already given an undertaking in Court in April, 1958, which undertaking will sufficiently safeguard the interest of the plaintiff, if he succeeds in the suit ultimately. Between April, 1958 and July, 1959, nothing seems to have happened, at 'least no evidence has been adduced to show that anything has happened, which has jeopardised the interest of the plaintiff. The1 application filed by the plaintiff for appointment of a receive was, indeed, vague. All that was recited, in substance, was that defendant No. 1, who was the Karta of the joint family, was mismanaging the properties and was concealing and wasting the income. No materials have been provided for testing the truth of the allegations made in this application. It appears that after the plaintiff had applied for appointment of a receiver and after defendants No. 1 to 4 and 6 to 9 controverted the allegations of the plaintiff by their rejoinder, the matter was agitated before the learned Additional Subordinate Judge as a pure question of law, Several decisions were relied upon before the learned Judge by both the parties. The application has failed, because the allegations made by the plaintiff were not substantiated. In the absence of any material on record to show that defendant No. 1 was mismanaging the properties and was concealing and wasting the income, it is not possible to appoint a receiver to take charge of the entire properties involved in this litigation. The appeal has no merit and it must fail.