025-NLR-NLR-V-41-RABBIA-UMMA-v.-NOORDEEN-et-al.pdf
102
Rabbia Umma v. Noordeen.
1939Present : Keuneman and Wijeyewardene JJ.
RABBIA UMMA v. NOORDEEN et al.
32—D. C. Colombo, 9,327.
Receiver—Application made to protect interest of plaintiff—Object ofappointing receiver—Protection of property—Defendant in possession—Civil Procedure Code, s. 671.
Where, in an action for the recovery of a half share of the rents andprofits of certain premises, the plaintiff applied for the appointment of areceiver under section 671 of the Civil Procedure Code,—
Held, that the plaintiff was not entitled to have a receiver appointedto protect his pecuniary interests.
A receiver is appointed for the protection of the property itself.
Where a right is asserted to property in the possession of a defendantclaiming to hold under a legal title, a Court will not interfere with thepossession by appointing a receiver unless a very strong case is made out.
rnHIS was an action instituted by the plaintiffs to recover a sum of-L Rs. 2,600 and Rs. 200 per month, being half share of the rentsand profits of certain premises in the Second Cross street, Pettah. Onthe same day as the plaint the plaintiffs filed petition and affidavit
KEUNEMAN J.—Rabbta Umma v. Noordeen.
103
praying for the appointment of a receiver for the custody, managementand preservation of the rents, the subject-matter of the action. Thelearned District Judge allowed the application.
H. V. Perera, K.C. (with him F. A. Tisseverasinghe, L. A. Rajapakse,and P. Thiagarajah), for defendant, appellant.—A receiver is not appointedin an action of this kind. The learned District Judge misdirectedhimself on the facts. No interlocutory order has been entered in thepartition action which is pending.
The District Judge was asked to use his discretion. He exercised thatdiscretion wrongly where he based his finding on wrong facts.
The plaintiffs should definitely prove that under section 671 of theCivil Procedure Code they had established a prima facie right to orinterest in the premises. They have failed to do so.
The defendants are in possession of the property and their possessionshould not be disturbed.
A receiver can only be appointed for the restoration, preservation,better custody, or management of any property. This necessity has notarisen. (Corbet v. The Ceylon Co., Ltd.'
Appointment of a receiver would be to prejudge the case and prejudicethe defendants (Seyadoris v. Hendrick’).
N. E. Weerasooria, K.C. (with him C. E. S. Perera and DodwellGoonewardene), for plaintiff, respondent.—Receivers are appointed for thebetter management of property—Section 671 of the Civil Procedure Code.It is true the District Judge has misstated a fact, namely, the enteringof an interlocutory order. There is sufficient evidence on record apartfrom this to appoint a receiver.
Once the District Judge has used his discretion that should not beinterfered with lightly.
The defendants are collecting rents due to us. The decision in thePartition case depends on the construction of a will. There is a fideicommissum.
In Sideswari Dabi v. Abhey'eswari Dabi’ a receiver was appointedwhen an appropriate case was made out.
Cur. adv. vult.
April 4, 1939. Keuneman J.—
The plaintiffs in this action alleged that one Meera Neina was theoriginal owner of premises No. 32, now Nos. 94, 96, and 98 in SecondCross street, Pettah, Colombo; that Meera Neina by last will, datedJanuary 7, 1891, gifted the said premises to his daughter Pitchamal,subject to certain conditions, and that the said Pitchamal became entitledto the property on the death of Meera Naina subject to the said conditions,and that on the death of the said Pitchamal, Abdul Cader and AbdulRaoof succeeded to the title in virtue of the conditions in the last will,and that Abdul Cader had conveyed his half share of the premises to thethree plaintiffs.
They further alleged that the defendant’s, husband had induced thesaid Pitchamal to execute a deed of gift in his favour of the premisesin question and had in turn gifted the premises to the defendant, but'4 S.C. C. 143.-2 C.L. R. 167.» I. L. if. 15 Cal. 818.
104
KEUNEMAN J.—Rabbia Umma v. Noordeen.
stated that these deeds conveyed no title to the defendant. They statedthat the defendant had appropriated th/> entire rents and profits of thepremises, and prayed for judgment in the sum of Rs. 2,600 to date ofaction, and Rs. 200 a month thereafter.
It is to be noted that the plaintiffs, though they set out their titledid not ask for a decree declaring that they are entitled to a half shareof the premises. They merely sued for a half share of the mesne profits.
It has, however, transpired in the course of these proceedings that thepresent plaintiffs, and, the defendant and certain other parties are partiesto a partition action, D. C. Colombo, No. 1,073, relating to the samepremises. This action is now pending.
On the same day as the plaint, the plaintiffs filed petition and affidavitpraying for the appointment of a receiver for the custody, managementand preservation of the rents, the subject-matter of the action. Thedefendants filed a statement of objections. At the inquiry the learnedDistrict Judge allowed the application of the plaintiffs and directedthat a receiver be appointed to receive and collect one-half of the rentsand profits from the premises. From this order the defendant nowappeals.
The learned District Judge addressed himself to section 671 of theCivil Procedure Code. The first matter for consideration was whetherthe plaintiffs had “ established a prima facie right to or interest in ”the premises. In dealing with this point, the District Judge held thatthe interlocutory decree in the partition action had decided that theplaintiffs had title, and that until the Court after hearing the defendant’sintervention decided otherwise, the right must be deemed to exist.It has been admitted before us that, in point of fact, no interlocutorydecree has been entered in the partition action. The defendant inter-vened before interlocutory decree, and the trial in the partition actionhas not yet taken place. Accordingly, the basis of the District Judge’sfinding disappears. It has, however, been argued by the respondent’sCounsel that the affidavit filed by the plaintiffs has not been rebuttedby a counter affidavit, and that the plaintiffs have established a primafacie interest in the property. The terms of the plaintiffs’ affidavit areconsistent with the terms of the plaint. As regards the facts set outtherein, there is no dispute between the parties, and the point ofcontention is whether in virtue of the terms of the last will of MeeraNeina, the gift made by Pitchamal to the defendant’s husband conveyedno title. This is a question of. law which will have to be determinedon the interpretation of the terms of the last will. I cannot regard thestatement in the plaintiffs’ affidavit that they are now entitled to a halfshare of the premises as a statement of fact; it is merely an expression ofopinion, and in view of the fact that this important question still remainsfor determination, I do not think that the plaintiffs have established aprima facie right to or interest in the property.
Acting upon the assumption that there was an interlocutory decreedeclaring the plaintiffs entitled to one-half of the property, the DistrictJudge held that the right extended to the rents and profits. Hecommented on the fact that there might be a considerable delay inconcluding this action and the partition action. He was of opinion that
KEUNEMAN J.—Rabbia XJmma v. Noordeen.
105
under the authorities cited to him, he had a discretion in a proper caseto appoint a receiver, and having considered the circumstances, andhaving regard to the long time that must elapse before the dispute couldbe settled, he made order that the receiver be appointed.
Counsel for the appellant argued that there was no proof in this casethat such appointment was “ necessary for the restoration, preservation,or better custody or management of any property, the subject of theaction What is the subject-matter of the action which it is sought topreserve? It is contended for the respondents that what has to bepreserved is the future rents and profits, but I do not myself think thatsection C71 contemplates the preservation of property which is to comeinto existence in the future, even if we can regard the claim for futuremesne profits as property. Clearly the claim for Rs. 2,600 cannot beregarded as property, in respect of which the appointment of a receiverwill be allowed, and the immovable property is not the subject-matter ofthe action.
Further, the plaintiffs’ right cannot be larger than that which theywould have had if they actually claimed declaration of title to theimmovable property. In this connection the language of Clarence J.in Corbet v. The Ceylon Coy., Ltd.2 is relevant. “ It is not shown insupport of the application …. that the estates are beingimpaired or mismanaged ad interim …. Plaintiff in asking for areceiver …. does so upon the merits of his case and nothingelse; and to ask the Court to grant a receiver upon such grounds is ineffect to ask the Court to prejudge the whole case ”. This judgment wasquoted with approval in Seyadoris v. Hendrick' by Lawrie J., who added“As I read section 671 the Court is not authorized to appoint a receiverto protect the pecuniary interests of one of two joint owners, but only toprotect the property itself ”.
Further, the Indian Courts have held as follows in Sideswari Dabi v.Abheyeswari Dabi‘ (decided under section 503 of the Civil ProcedureCode of 1882): —“ If a right was asserted to property in the possession ofthe defendants claiming to hold under a legal title, the Courts did notinterfere by appointing a receiver unless a very strong case was madeout ”. This was stated to be in accordance with the principles of theEnglish law as well.
I do not think the plaintiffs have made out either a strong or a sufficientcase in this instance. I also think that the plaintiffs have asked for theappointment of a receiver merely for the preservation of their pecuniaryinterests.
I am of opinion that the learned District Judge was wrong in orderingthe appointment of the receiver. I allow the appeal and set aside theorder. The defendant is entitled to the costs of the appeal and of theproceedings in this matter in the Court below.
The application for revision does not arise now, and it is accordinglydismissed without costs.
W ijkyewardene J.—I agree.
Appeal allowed.
1 4 S. C. C. 143
» /. L. R. IS Cal. 818.
* 2 C. L. if. 167.