KUMARASAWMY PILLAI; RAJARATHNAM PILLAIAND; SESHAMMAL Vs. SPASUPATHIA PILLAI

JUDGEMENT

(1.) These are appeals against the order of the Subordinate Judge of Kumbakonam appointing a Receiver for the lands belonging to Pasupatheswara Swami temple near Kumbakonam. The plaintiff and the defendants NOs. 1 to 3 are the four hereditary trustees of the temple. The defendants Nos. 4, 5 and 6 have each executed a separate registered rent-deed in favour of the plaintiff and the defendants Nos. 1 to 3 jointly; each of the former has thus become the sole lessee of one set of lands belonging to the temple. The plaintiff alleges in his plaint that these leases were really taken for the benefit of the defendants Nos, 1, 2 and 3 respectively by their creatures defendants Nos. 4, 5 and 6; that ha did not consent to accept the rent-deeds which stand in his name also ; that defendants Nos. 4, 5 and 6 are persons of no status or property, and that the leases should be avoided as they were given by the defendants Nos. 1 to 3 in breach of trust. The leases provided for payment of instalments of paddy rent in the month of November (after the Kuravai harvest), and in the months between January and April (after the Samba harvest), a small sum in cash being also payable for the rent of Punja lands.

(2.) As regards the rent payable between January and April 1919 under the rent- deeds, the defendants Nos. 4, 5 and 6 have made default to the following extent, respectively, according to the tenor of the lease deeds. The fourth defendant has defaulted to pay about Rs. 4,714 of the rent due by him, the fifth defendant has made default to the extent of about Rs. 5,052. Sixth defendant has made default to the extent of about Rs. 5,052. The rent-deeds provide that, if default is so made, the temple can enter into possession without reference to the term of seven years (ending on the 30th January 1925) mentioned in the rent-deeds, The plaintiff had applied for the appointment of a Receiver in January 1919 itself. Mr. C.V. Visvanatha Sastriar, the then Subordinate Judge, passed an order on that petition on the 4th February 1919. Paragraph 9 of the order is as follows: "I therefore, order defendants Nos. 4, 5 and 6 do pay out of the rents due by them" (to the trustees) under their respective lease-deeds 450 kalams each to defendants Nos. 1, 2 an&3. The rest of the rents due to them" (that is, the trustees) "will have to be paid by them into Court. The paddy rent due by them will be converted into money, the paddy being sold by them (after giving proper notice to the plaintiff) to the person who offers the highest price, the money rent due by them will also be paid into Court. In case the defendants Nos. 4, 5 and 6 do not obey the conditions imposed on them by this order, they will render themselves liable to be removed from possession and a Receiver will have to be appointed in respect of the properties." As I said, this order was passed on the 14th February 1919. The defendants Nos. 4, 5 and 6 have committed the further defaults in making payments in accordance with this order to the extent of fifteen thousand and odd rupees, as already stated. So a further application was made by the plaintiff for the appointment of a Receiver and Mr. Viswanatha Sastriar s successor passed the order, dated 7th October 1919, against which these appeals have been filed, No doubt, as the Subordinate Judge says, "the matter has to be decided or broad facts made oat primi facie and not entering into details at this stage." The defendants Nos. 4 to 6 have not act up to the order of the 14th February 1919 ii which they were warned that a Receive would be appointed, and that they would bf ejected if they did not obey the order Their excuse for disobedience is that the hoped against hope that they would be at to obtain from the Samba harvest sufficient paddy to pay the rents due by them according to the rent-deeds executed by them but they found that they were able to realise only much less and that, according to the custom in the Tanjore District, they were entitled to call upon the temple to harvest the crops which ware below the usual yield to give the lessees some portion and to take the balance as fully satisfying the temple s claims for rent of the year. Treating the matter or the broad facts made out, prima facie I an not inclined to hold that the defendant Nos. 4, 5 and 6 have put forward a sufficient excuse for disobeying the order of February 1919. On the covenants in the rent-deeds, they can be ejected and the temple are enter upon the lands in their possession, Having regard to these facts, the Subordinate Judge thought that the interests of the temple trust were being jeopardized by the quarrels between the trustees and by the lessees taking advantage of such quarrels to withhold the rents (a very large sum) due by them to the trust. He, therefore, considered, (to use the language of Order XL, Rule 1 in the Civil Procedure Code), that it was just and conveuient to have a Receiver appointed, so that the large portion of the extensive income of the temple may be directed and turned into channels so as to be useful and beneficial to the temple, viz., for the discharge of the debts, etc, As regards the questions: (1) Whether the defendants Nos. 1 to 3 are the real lessees themselves; (2) whether the plaintiff consented to the lease as alleged by the defendants, and (3) whether the leases were granted for much lower rents than are reasonable, all these questions cannot be answered even provisionally at this stage on the records as they stand. But on the broad ground that, clearly, the interests of the trust are anyhow being jeopardised I think the appointment of a Receiver is desirable so long as the defendants Nos. 4 to 6 are trying to withhold the rents due by them to the temple, assuming in favour of the defendants that the rent-deeds executed by them are valid, the grounds urged by them for withholding payment of the large balance of rents due by them being prima facie of a very weak character. The only modification in the lower Court s order which I am, therefore, inclined to make is that, if the defendants Nos. 4, 5 and 6 give sufficient security for the arrears due by them respectively, that is, (approximately) of the value of Ra. 4,714, Rs. 5554 and Rs. 5,052 and also for the Kuravi rents due by them on the 30th November namely, (approximately), of the value of Rs. 1,050, Rs. 1,625 and Rs. 1,225 respectively within one week of the date of the receipt of the order herein, to the satisfaction of the Subordinate Judge of Kumbakonam, the order appointing a Receiver shall remain in suspense. The Subordinate Judge shall have power to extend the time on good grounds for a farther period not exceeding one week, if they pay the amounts of all these rents within the 31st January 1920 into the Court, the order appointing a Receiver will stand cancelled, The security to be given by each of the defendants Nos. 4, 5 and 6 will be separate and the suspension or cancellation of the Receiver order will also take effect separately in favour of that particular defendant who gives security and as regards the respective lands in his possession separately.

(3.) As regards Order XL, Rule 1(2), Civil Procedure Code, the Court has full power to put the Receiver appointed by it in possession of properties, removing any of the parties to the suit from such possession, A party has always the right to remove himself from possession even if Order XL Rule 1(2) applies to a case where possession is not with a third party. Order XL, Rule 1(2) prevents the Court from ejecting a person not a party to the suit unless some one or mere or all of the parties to the suit have such a right. This was held by myself and Tyabji, J., in Appeal agamat Order No. 8 of 1912. That the plaintiff, even if he succeeds, can only get joint possession with defendants Nos. 1, 2 and 3, and does not pray for ejecting them has, in my opinion nothing to do with the power of the Court to appoint a Receiver to take possession t of the properties on behalf of all parties t or a single party who might be entitled ( to possession in the result. [See Venkata , Baigopala Surya. Row v. Basivi Reddy 26 Ind. Cas. 986 : 1 L.W. 785 : (1914) M.W.N. 771 : 16 M.L.T. 407 : 29 M.L.J. 457 where oldfield, J., and myself held that at j the instance of a simple mortgage-decree-holder who was not entitled to possession at all a Receiver can be appointed in an appropriate case dispossessing the owners.