PROMATHA NATH MITRA Vs. MANMATHA NATH MITRA

JUDGEMENT

(1.) This Rule was obtained by the petitioner, which runs as follows: Let the record be sent for and a Rule issue on the opposite parties to show cause why the order of the 2nd Additional District Judge of Howrah, dated the 29 May 1924, refusing to appoint a common manager should not be set aside and why an order should not be passed for the appointment of a common manager. Pending the hearing of the Rule the order directing the Receiver to give possession of the estate to the owners will be stayed.

(2.) Cause is shown by the opposite parties and it is contended that the order of the District Judge was right and that this Court should not interfere with the order which was purely a discretionary one. The facts are as follows: The Andul Raj is the owner amongst other properties of a Touzi, popularly known as Bara Taraf, of the Collectorate of Howrah. This is a separate account of the 8 annas of the main Touzi, and the other separate account consists of the other 8 annas of the Touzi. The petitioner is the eldest son of the late Raja and claims shares in the estate of the Touzi called the Bara Taraf. There is some dispute as to his share. But it is unnecessary to discuss it. His share is evidently not more than one-fifth in the estate; the remaining co-sharers, according to the petitioner, are his four brothers, but, according to the opposite parties, the mother had also a share as the heiress of the deceased son of the late owner. The owners of the separate account of the Touzi also appear and oppose this rule. The petitioner's case shortly stated was that there was a dispute between the brothers as to the management of the estate and that on account of that dispute collections of rent of the estate were practically at a stand-still, and that consequently there was an apprehension of serious loss to the income of the share-holders and also there was some danger of the property being lost on account of arrears of revenue. In the circumstances the petitioners applied for the appointment of a common manager of their joint estate under Section 93 of the Bengal Tenancy Act. The owner of the separate estate is also a party to the proceedings as co-owner of the parent estate as I have already stated, because his share also would be involved, if an order under Section 93 is made. The opposite parties raised various objections to the maintainability of the application under Section 93 and they also contended that in the circumstances of the present case no order should be made under that section. The owner of the separate estate also opposed on similar grounds the appointment of a common manager. But he had additional objections on the ground that it would be a great hardship upon him if his estate were placed under the common manager as he was absolutely unconcerned in the dispute between the brothers. The learned District Judge dismissed the application on the ground that the proceedings were defective in certain material points and he also went very fully into the merits of the case and in his opinion the circumstances would not justify an order under Section 93. It appears that during the pendency of the proceedings before the learned District Judge a Receiver was appointed by consent of the parties. The petitioner when h3 obtained a Rule from this Court, applied that the Receiver appointed by the Court below might be continued during the pendency of the Rule here. I am informed that a suggestion fell from this Court to the effect that the necessity of the appointment of a common manager might be obviated if the petitioner brought a suit for partition of the estate and if a Receiver were appointed in the course of the partition suit. It appears that no suit has yet been brought. There was an application by the learned Vakil for the petitioner for the postponement of this Rule when it came up for hearing to-day for three or four weeks with a view to give his client an opportunity for bringing a suit for partition and also for applying for the appointment of a Receiver in. that suit. There was strenuous opposition to that course by the learned vakil for the opposite parties, who expressed himself very strongly upon the matter.

(3.) He stated that he would not tolerate the continuance of the present Receiver even for a day. We were not inclined in the circumstances to adjourn the hearing. We Lave heard the parties at some length and we are clearly of opinion that this Rule should be discharged-There are various difficulties in the way of the petitioner apart from the obvious difficulty that this Court is reluctant in the exercise of its revisional jurisdiction to interfere with an order of the Lower Court in the exercise of its discretion.