P L D 1958 (W (PLP)

(a) The eldest of their male issue and on his death, or he, being then dead, by his male lineal descendants successively according to the law of primogeniture; (b) on the failure of all male lineal descendants of the said eldest son, by the second son and on his death, or he being then dead, by his male lineal descendants; (c) on the failure of all male lineal descendants of the second son, upon the third son, and similarly upon the fourth son and younger sons until all the male lineal descendants failed; and (d) failing all male lineal descendants the land was to devolve upon and be held by the daughters of Shahzada Sultan Ibrahim and Shahzadi Tajavar Sultana in equal shares per stirpes.

4. Shahzada Sultan Ibrahim and Shahzadi Tajwar Sultana had no sons and only one daughter, Shahzadi Sultan Begum, the mother of the parties, who succeeded to the property. The plaintiff's case is that on her death defendant No. 1. illegally took possession of the entire land in dispute According to defendant No. 1, on the other hand, more than twelve years before her death,, and in the lifetime of her husband, Shahzadi Sultan Begum gifted the entire land in suit,, to defendant loo. 1 with possession. The defendant also states, without rebuttal, that the plaintiff filed a .civil suit against Shahzadi Sultan. Begum and the present defendant, No. 1 challenging the validity of the said gift. The suit was dismissed on the 10th of May 1955, and an appeal is said to be pending in this Court.

5. It is further contended by defendant No. 1 that a family settlement was arrived at in which the present plaintiff and defendant No. 2 both admitted and accepted defendant No. 1 as the full owner of the entire land in dispute and the sole heir and successor of Shahzadi Sultan Begum.

6. Finally, defendant No. 1 urges that after the coming into force of the West Punjab Muslim Personal Law (Shariat) Application Act, (IX of 1948) the plaintiff in any case is not entitled to more than one‑fourth of the entire area in dispute.

7. On the 26th of January 1956, the plaintiff filed the application in dispute for. .the appointment of a receiver, claiming that on the death.of Shahzadi Sultan Begum. defend ant No. 1 took possession of the entire land and 'is' in enjoyment of the entire income, acid that he' has deprived the plaintiff of her share of the income of the land. The application was contested and the following issue was framed:‑ (1) Whether the appointment of a receiver in this case is necessary? The learned Senior Civil judge, after setting out the contentions of the parties, remarked that the original grant had not been produced and that the defendants have not admitted the contents of the uncertified copy produced by the plaintiff (as already pointed out a certified copy was produced in this Court) and held:‑ "Counsel for the defendants are prepared to give security for the mesne profits. I think, in the circumstances of the case, it is fair and just that defendant No. 1 who is said to be in possession of the whole property be asked to furnish security for mesne profits for the present to the extent of Rs. 20,000".

8. It is settled law that the discretion vesting in a Court of appointing a receiver of property is to be sparingly exercised, and one recognised principle is that before the possession of a party is disturbed, there must be an allegation of waste. For example, in Govind Narain Rao Desai v. Ilallabhrao Narayanrao Desai (AIR 1920 Bom. 321), it was laid down that as a general rule the Court will not, in a partition suit between members of a joint family, appoint a receiver except by consent and upon proof by the plaintiff that prima facie he has a very excellent chance of succeeding in establishing the case made out in the plaint, and that the property in possession of the opposite party is in danger of being wasted. The learned judges added that the mere fact that there is a dispute is no reason whatever for appointing a receiver. In the present case, learned counsel for the respondent has emphasized that neither in the plaint nor in the application for the appointment of a receiver is any charge of waste brought against defendant No.

1. There is also no allegation that waste is apprehended in the future, but even had such an apprehension been expressed, it would not have afforded ground for the appointment of a receiver. Sant Ram v. Ram Chand (36 P R 1910) is an authority for the proposition that a receiver should not be appointed when the application is based, not upon any specific allegation of misconduct, but upon a mere apprehension that the defendant, though he has done nothing in the past, will after the institution of the suit proceed to waste the property.

9. Learned counsel for the appellant has cited a number of authorities, namely:‑ Basant Ram v. Dasondhi Mal (A I R 1929 Lah. 497), Ramji Ram v. Salig Ram (5 I C 96), Saravana Mudaliar v. Singaravelu Mudaliar (A I R 1938 Mad. 730), Manohar Lal v. Kishan Lal (A I R 1938 Lah. 10), Sahijram Rupchand v. Alu Tundu (A I R 1942 Sind 60), Poreshnath Mookerjee v. Omerto Nauth Mitter (I L R 17 Cal, 614), Porter v. Lopes (L R 7 Ch. D 358), Jeiferys v. Smith (37 E R 389), Tyson v. Fairclough (57 E R 300), Mst. Ahmad Bibi v. Shamas Din (I L R 10 Lah. 842), Muhammad Bakhsh v. Fateh Muhammad (I L R 10 Lah. 849).

10. A I R 1929 Lah. 497 deals with a case in which one of the members of a joint Hindu family obtained a decree to the effect that he was entitled to 1/5th share in the joint family property. The Subordinate judge who passed the decree further held that the plaintiff could not enforce a partition during the lifetime of his father, Lala Dasondhi Mal. Two appeals were filed in the High Court and while they were still pending the father died. Harrison, J. thereupon held:‑ "On the 18th July 1928, Lala Dasondhi Mal died. This is the salient fact in this case which differentiates it from any other which has been put before me as a guide or authority. On the finding of the trial Court the plaintiff,. therefore, is entitled to immediate partition, and the only circumstance which prevents him from obtaining it is that the appeals are pending and will not be heard for some years. * * * * * It may be necessary in ordinary cases to show that there has been waste, but this is not an ordinary case. In Sant Ram v. Ram Chand the right of the claimant to partition was not admitted. Here Mr. Badri Das admits the relationship and that the family is a joint family. There is also a finding, and it is, therefore, established by the decree of a competent Court, which stands until it is upset, that the plaintiff is entitled to the share he then claimed, and it follows that that share has been increased by the death of the father. * * * * * In all cases where a property is in the hands of one co‑sharer and the share of the profits is with‑held from the other, there is sufficient reason for appointing a receiver. Ramji Ram v, Salig Ram is also in point". With great respect, I am of the opinion that the concluding observation cited above is limited to those cases where the plaintiff is admittedly entitled to a share of the property in dispute. For example, in Ramji Ram v. Salig Rath, cited by the appellant and referred to by the learned judge, the relevant portion of the head‑note, which accurately summarises the relevant portion of the judgment, runs:‑ "In a suit for partition, where one of the co‑owners is in occupation of the property, the Court has jurisdiction to appoint a receiver, for the fact that the defendant is keeping the plaintiff out of possession of property to which he is admittedly entitled is a sufficient ground for placing the property in the hands of a receiver".

11. One other passage in the Lahore case above cited which calls for comment is the statement that although it may be necessary in ordinary cases to show that there has been waste, the case in dispute was not an ordinary case again is clearly to be interpreted as meaning that where a co‑sharer is being deprived of a share to which he is admittedly entitled, and for which a decree has been passed in his favour, it is not necessary for trim to prove waste. In the present case, on the other hand, the right of the plaintiff to a share in the property in dispute is not admitted, and the dictum of the learned judge has no application.

12. The facts of the case to which A I R 1938 Mad. 730 refers were that in a suit for partition the plaintiff was entitled (apparently admittedly) to as much as one half of the property. Quarrels in the family and the conduct of the i defendant had, however, made it impossible for him in the past during the pendency of the suit to get his fair share of the harvest, it being further urged that in spite of any precautions taken by the Court, the plaintiff would not be able to secure his fair share in the income from the property so long as it remained in the hands of the defendant receiver was accordingly appointed, but it is clear from the judgment that the appointment was made under the circum stances of that particular case, and it was emphasized that in general a receiver will not be appointed metal' because a member of the family files suit for partition. In the present case the circumstances held in the above ruling to justify the appointment of a receiver do not exist.

13. A I R 1938 Lah. 10 refers to a case in which it was held that in a suit for partition of movable and immovable property it was likely that debts might be realized by the defendants without the plaintiff's knowledge or that settle ment of those debts might be arrived at by the defendants in a manner prejudicial to the plaintiff. In the present case, no such question arises.

14. In A I R 1942 Sind 60, the learned judges held that it was just and convenient to appoint a receiver because of the history of the case, .the gross delay, the evasive and disingenuous conduct of the appellants, their absence from the court, the with‑holding of their account books, and the comparative poverty and helplessness of the plaintiffs. In the present case, none of these conditions exists, it being not established from the material, before me that the plaintiff is either poor or helpless. Apart from the income of her husband, it was stated at the Bar that defendant No. 1 is paying her a monthly sum of Rs. 400 as against Rs. 60 per mensem to which she is said to have been entitled under the terms of the family settlement.

15. I L R 17 Cal. 614 merely enunciates the proposition that the Court has jurisdiction to place in the hands of a receiver the whole of a joint estate out of which the plaintiff seeks to have his share partitioned. That question will only arise if the conditions necessary for the appointment of a receiver are shown to be fulfilled.

16. L R 7 Ch. D. 358, an English authority, is relevant to the present case only in so far as it lays down that in an action for partition, where one of the co‑owners is in occupation, though not in exclusive occupation, of the property, the Court has jurisdiction to appoint a receiver until the hearing. 17. 37 E R 389 was cited by learned counsel for the appellant in support of the proposition that it is more just and convenient to appoint a receiver of the whole property than to have each of the parties appointing his or her own manager. With great respect, I agree, but a necessary preliminary is for the appellant to establish the necessity for the appointment of a receiver.

18. The next three rulings cited, A I R 1949 All. 112, A I R 1945 Cal. 298 and A I R 1922 Lah. 444, define the scope of clause (2) of Order XL Rule 1 of the Code of Civil Procedure, and make it clear that the Court can remove a party from possession of the property in dispute, the restric tions imposed by the clause in question being confined to third persons who have not had the opportunity of being heard.

19. There remain 57 E R 300, I L R 10 Lah. 842 and I L R 10 Lah.

849. The last two lay down that co‑sharers are in the position of tenants in common, while the English authority is relied upon in support of the proposition that where one tenant in common receives the whole rent and excludes his companions from the share due to him a receiver should be appointed. Learned counsel has, however, over looked, first, that in the case in question it was held that the conduct complained of did not amount to exclusion and, secondly, that the‑ learned judge went on to remark: " I may observe that, even in the case of any actual exclusion of one tenant in common by another, I doubt whether this Court would appoint a receiver. If it were an exclusion which amounted to an ouster at law the party complaining must assert at law his legal title. If it were not such an exclusion this Court would compel the tenant in common in receipt of the rents to account to his companion, but would not, I think, act against his legal title to possession; and the reason is because the party complaining may at law relieve himself by the writ of partition".

20. The above analysis of the authorities cited by the appellant shows that they do not help him, and learned counsel for the respondent has advanced another objection to the appointment of a receiver in this case, namely, that as the property in dispute consists of agricultural land, a Civil Court cannot grant the relief of partition but only give a declaration of title. Without giving any final decision of this objection, I may remark that prima facie it is not devoid of force.

21. Taking all the circumstances into consideration, I hold that the appellant has failed to establish a case for the appointment of a receiver of the property in dispute. There is no force in the appeal, which is dismissed with costs. K. M. A. Appeal dismissed.