BABARAO Vs. NARAYANRAO

JUDGEMENT

(1.) . 1. This is an appeal against an order appointing a receiver. The plaintiffs are the minor son and the wife of defendant 1 and they have sued for a partition and a declaration that certain decrees, attachments, mortgages and simple money debts are not binding upon them on the ground that the debts incurred by defendant 1 were for illegal and immoral purposes. Defendant 1's creditors have been joined as defendants and they made an application for a receiver which was rejected on 13th August 1928. They were, however, permitted to apply again if they failed to realize the sums due to them by sale of the right, title and interest of defendant 1. A part of the property has been sold, but there still remained debts of Rs. 18,000 outstanding. A second application for a receiver has now been granted on the ground that if no receiver is appointed, defendant 1 in collusion with the plaintiffs will do away with as much of the produce as they can.

(2.) THE first point taken in appeal is that the creditors who have purchased the rights of defendant 1, have no present right to possession of the property. It has been laid down in Abdul Aziz v. Ajudhia [1902] 15 C.L.R. 156 and Mohanlal v. Tekchand [1913] 9 N.L.R. 18 that a purchaser of an undivided share can only obtain separate possession by enforcing partition of the whole estate. On this it is urged that no receiver can be appointed because of Order 40, Rule 1, Sub-rule (2) which runs as follows: Nothing in this rule shall authorize the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove.

(3.) IT is next contended that, as the only ground for appointing a receiver is a fear that defendant 1 and the plaintiffs will do away with the produce and as the creditors are not entitled to mesne profits before partition, they are not entitled to obtain the appointment of a receiver. Reference has been made in this cannexion fro Amritrao v. Gobind [1913] 9 N.L.R. 115 and Maharaja of Bobbili v. Venkataramara-julu Naidu [1916] 39 Mad. 265. In Maharaja of Bobbili v. Venkataramarajulu Naidu [1916] 39 Mad. 265, it is laid down that a purchaser of the undivided share of a member of a joint Hindu family does not thereby become a tenant-in-common with the other members and hence he is not entitled to any mesne profits in respect of his share for the period between the date of his purchase and the date of his suit for partition. It may be pointed out that here the suit for partition has been instituted though not by the purchasers; but the real answer to the appellants contention is that the creditors are not claiming mesne profits; what they claim is that the whole property and the produce thereof are liable for the debts due to him. The plaintiffs have to prove that the debts were incurred for illegal or immoral purposes and until they do so, the whole property is prima facie liable for the debts. In these circumstances, I consider that the receiver was rightly ordered to be appointed. I dismiss the appeal with costs. I fix pleader's fee at Rs. 50.