Kavitapu Devi Kiranmayi and ors. Vs. Kavitapu Suryakantham and ors. - Court Judgment

Excerpt:
- - he contends that the interests of the appellants are not at all safe in the hands of their maternal uncle and having regard to the facts of the case, the trial court had provided for most equitable arrangement. is concerned, time and again this court held that in the suits for partition, appointment of receivers can be resorted to, only in exceptional cases. 8. except a general and vague allegation that the appellants were not looked after well by their maternal uncle, the first respondent is not able to place any material before this court, to support her contention. they stated that they are being looked after well by their maternal uncle and his family.l. narasimha reddy, j.1. this civil miscellaneous appeal is filed by three minors, represented by their maternal uncle. they are defendant nos. 2 to 4 in o.s.no. 165 of 2002 filed by the first respondent herein, in the court of senior civil judge, ramachandrapuram. the first respondent is the mother of the father of appellants, by name vijaya krishna. he is said to have died in the year 2000 and much before that, his father died. the appellants were under the care and custody of their mother, by name padmavathi, who is no more now. respondents 3 and 4 are the daughter of the first respondent. respondents 5, 6 and 7 are said to be the tenants.2. the first respondent filed the suit for partition of the suit schedule properties and allotment of one-third share to her. she pleaded that after the death of her husband, the properties were being managed by her son vijaya krishna, and after his death, her daughter-in-law, by name padmavathi, was looking after them. she pleaded that despite her demand, padmavathi did not partition the suit schedule properties and neglected to maintain her. the suit was presented as an indigent person. subsequently, it was numbered.3. the first respondent also filed i.a. no. 1335 of 2002 under section 94 read with order 40 rule 1 c.p.c., to appoint a receiver, for maintenance and enjoyment of the suit schedule properties. the application was resisted by the appellants. through its order, dated 15-2-2005, the trial court appointed one sri kandukuri subrahmanya as receiver, to take possession of the properties, manage them and deposit the income that derives out of it. various other arrangements were also made.4. sri t.v.s. prahhakar rao, the learned counsel for the appellants submits that appointment of a receiver, in a suit for partition, is a rare phenomenon, and till the suit schedule properties are partitioned, the coparceners are entitled to remain in possession and enjoyment thereof. he contends that the possession of some coparceners would be for and on behalf of the others also, and at the most, the court can insist the person in management of the properties to account for it. he submits that the interests of the minor are totally put in jeopardy and the property is subjected to gross mismanagement and wastage.5. sri y. sreenivas murthy, the learned counsel for the first respondent, on the other hand, submits that the appellants are under the custody and control of their maternal uncle and the past experience has shown that he is misusing the property. he contends that the interests of the appellants are not at all safe in the hands of their maternal uncle and having regard to the facts of the case, the trial court had provided for most equitable arrangement.6. the first respondent filed the la. invoking section 94 and order 40 c.p.c. on the face of it, section 94 c.p.c does not apply to the facts of this case. so far as order 40 c.p.c. is concerned, time and again this court held that in the suits for partition, appointment of receivers can be resorted to, only in exceptional cases. the reason is that the joint family properties are supposed to be for the benefit and enjoyment of all the members thereof and till the partition, as such, takes place, the properties must be managed by the karta or the other person in management of the family. further, till a partition, as such, is brought about, the property is deemed to be in possession and enjoyment of all the coparceners and at the most, they can insist on the karata or the manager, to account for the benefits derived out of the properties. even otherwise, before the properties are kept at the disposal of a receiver, a definite finding must be recorded by the court to the effect that the properties are subjected to wastage or misuse by the person, who was in management of the properties, at the relevant point of time.7. in the instant case, it is rather unfortunate that the appellants herein lost both their parents, at a very tender age. there are no other male members on their paternal side, to look after their interests. naturally, choice has fallen upon their maternal uncle to take care of them.8. except a general and vague allegation that the appellants were not looked after well by their maternal uncle, the first respondent is not able to place any material before this court, to support her contention. appellants 1 and 2 have appeared before this court. they stated that they are being looked after well by their maternal uncle and his family. it is a further misfortune of the appellants herein that their paternal grand mother, the first respondent herein, has chosen to file a suit for partition, after she crossed seventy years. it is pleaded on behalf of the appellants that the entire suit schedule properties have fallen to the share of their father under a will executed by their grand father on 9-1-1987. that, however, is a matter, which needs to be dealt within the suit.9. the first respondent did not feel the necessity of appointment of receiver, as long as her son was alive. it is only when the family became bereaved, on account of death of vijaya krishna, that the first respondent filed the i.a. the allegations made on behalf of the appellants that the receiver is incurring unnecessary and unwanted expenditure in the name of administration, cannot be brushed aside. the receiver was directed to put the leasehold rights of the properties to auction. the same thing can be done by the guardian of the appellants herein, and in such an event, a further wastage would be avoided. the interests of the first respondent can be taken care of, by providing adequate maintenance to her.10. for the foregoing reasons, the civil miscellaneous appeal is allowed and the order under appeal is set aside. it is directed that the suit schedule properties shall be under the management and control of maternal uncle of the appellant herein, by name k. nagabhushanam. he shall submit accounts before the trial court once in every three (3) months, in relation to the income derived from the properties and expenditure incurred for the education and maintenance of the appellants herein. the first respondent shall be paid a sum of rs. 3,000/- (rupees three thousand only) per month, towards maintenance, commencing from may, 2006. the amount, which remains after meeting the expenditure for education and maintenance of the appellants, shall be deposited into the accounts opened in the name of the appellants herein, in equal shares. no part of the suit schedule property shall be subjected to alienation or encumbrance, till the disposal of the suit.11. the said arrangement shall remain in force, till the disposal of the suit, subject however, to the condition that in case, any person other than the maternal uncle of the appellants is appointed as guardian, in the proceedings in o.p. no. 911 of 2004, on the file of the district judge, rajahmundry, the same shall be taken into account. o.p. no. 911 of 2004 and o.s. no. 165 of 2002 shall be disposed of within a period of one year from the date of receipt of a copy of this order. there shall be no order as to costs.