LAKSHMI NARAYAN MAHATO Vs. SACHINDRA NATH MUKHERJEE

JUDGEMENT

(1.) The petitioner in this Rule has instituted two suits, one for declaration of title and for injunction in respect of a lease-hold interest in a bazaar and a bustee, and another suit for partition in the 4 Court of the Subordinate Judge at Alipore. These suits are registered and numbered as Title Suits Nos. 11 and 12 of 1937 respectively. The petitioner's father, the late Deb Narayan Mahato, and the principal defendant's father, the late Ram Narayan Mahato were two brothers belonging to joint Hindu family. The petitioner's case is that he is entitled to half share in all the joint family properties. One of these properties is the aforesaid lease-hold interest. According to the case made in the plaint the lease is for 25 years with option of renewal for another 5 years and is due to expire in Bhadra 1345 B.S. The petitioner alleges, and the opposite party does not dispute, that the said sons of Ram Narayan Mahato are going to execute a fresh lease in favour of the Thakur as represented by Babu Sachindra Nath Mukherjee, the present Receiver of the Bhukailas Debuttar Estate. The petitioner's case is that by this action he is going to be excluded from the proposed lease although he is entitled to his share. By an amendment of the plaint in Title Suit No. 11 of 1937 the petitioner has added as defendant 4 the Thakur represented by the aforesaid Receiver and as defendants 4 (a) to 4 (m) various shebaits. One of the prayers in the plaint is for a permanent injunction restraining the defendants from executing the lease mentioned above and also restraining defendant 4 and defendants 4 (a) to 4 (m) from accepting such lease. The aforesaid addition of the Receiver as defendant in the suit was made by the 4 Subordinate Judge subject to the plaintiff's obtaining the necessary sanction from the Subordinate Judge, 3 Court which was the Court which appointed the Receiver. Accordingly the petitioner applied to the Subordinate Judge, third Court, for necessary permission but this was refused by the order dated 7 April 1937. Against that order the present Rule has been obtained and it is opposed by the Receiver.

(2.) The third Subordinate Judge has held that the Receiver is not a necessary party and he has gone on to say that in case of the plaintiff's succeeding in Title Suit No. 11 of 1937, he, the learned Subordinate Judge of the third Court, would look into the terms of the lease and examine whether the petitioner should be accepted as a tenant along with defendants 1 and 2 in the aforesaid lease. On the application for permission to make the Receiver a party to the suit, no doubt it is open to the Court from whom permission is asked for to consider the question on its merits. But as was pointed out in Sridhar Chowdhury V/s. Mugniram Bangar AIR 1924 Pat 491: It is not the object of appointing a receiver to keep a third party out of possession who may be entitled to possession, and the Court will readily give leave to sue its receiver if satisfied that there is a case to be tried, so that the claim of the third party may be tried in the presence of the receiver.

(3.) In such a case not to make the Receiver a party to the suit may lead to that very conflict of jurisdiction which was sought to be avoided in Jugal Kishore Devi V/s. Deva Prasanna Mukherji AIR 1928 Pat 321. The test in such a case is whether the property in the hands of the Receiver is going to be affected: Jotindra Nath Chowdhury V/s. Sarfaraj Mia (1910) 14 C W N 653, Banku Behari Day V/s. Harendra Nath (1911) 15 C W N 54, which distinguished the case in Kumar Suttya Suttya Ghosal V/s. Golap Moni Devi (1901) 5 C W N 27 and the case in Rodger v. Ashutosh Mukherji (1902) 6 C W N 829. In the present case, having regard to the case made in the plaint and the prayers contained therein, it is difficult to say that the property in the hands of the Receiver is not going to be affected and this is only confirmed by the method of reasoning adopted by the learned Subordinate Judge of the third Court in his order which is now complained against. We consider that the learned Subordinate Judge was not justified in refusing permission to the petitioner to sue the Receiver. The Rule must therefore be made absolute with costs, hearing fee being assessed at three gold mohurs. Patterson, J.