Dismissed

Cheruku Swamy Nathan v. Venisetty Rathnam and 5 others

Telangana HC16 Mar 2021CMA/37/2021

Case brief

AI extract

What is this about?

In this Civil Miscellaneous Appeal, the High Court dismissed the appeal against the trial court's appointment of an Advocate Receiver to collect rents from suit properties. The court held that since the respondent had a prima facie case and the appellant was appropriating income, the receiver's appointment to safeguard interests was proper.

What did the court decide?

The appeal was dismissed; the order appointing the Advocate Receiver was not interfered with; the trial court was directed to dispose of the suit expeditiously.

Cheruku Swamy Nathan Vs Venisetty Rathnam and 5 others — Partition | Telangana HC (2021)

¶1

HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY, THE SIXTEENTH DAY OF IVARCH TWO THOUSAND AND TWENTY ONE

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PRESENT

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THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO

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AND

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THE HONOURABLE SRI JUSTICE T.VINOD KUMAR

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C.M.A. NO: 37 OF 2021

¶8

Appeal under Order Xllll R1 read with Section 104 of CPC against the Order/ decree in lA No.1 of 2016 in OS No.2'1 1 of 2014 daled 2911212020 on the file of the Court of the Vll Additional District Judge, Warangal, Warangal District.

¶9

Between:

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Cheruku Swamy Nathan, S/o Late Sri Kanthaiah, age. 38^{years Occ. Advocate,} R/o H no 1 2'1^-7 0 sVN Road' waiiffi

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ft'fJ'orr.LLANTiREspoNDENT/DEFENDANT

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AND

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Venisetty Rathnam, W/o Pullaiah Age. 79^years, Occ. Senior^{Citizen, Rl/o.H.no.} 12-1-70,'SVN Road, Warangal Temporarily^{Residing at H.No.2-6-182'AP} Housing Board colony' Hanamkonda' *ut'"nilSlYrondents/ petitioner/ praintiff

¶14

tr/adhusudhan Saree Centre, rep. by its^{Proprietor Sri M.Satyaraju S/o LateSr!} Rajamouli Aged. 70^years

¶15

Ir/aruthi Cloth Merchlnt,^{rep. by its Proprietor Sri Praveen S/o Not known, aged.} 40 vears. Occ. Business

¶16

Sh;kthi Sewing Machines, Sales^{and Company} $ep.Qy^{it9 Proprietor Sri Dumpa} Raieshwar Rao S/o Not known,^{aged. 60 years Occ. Business}

¶17

Na'vatha Dresses,^{rep. by its Partners Sri Venkanna S/o Not known,aged' 51} vears, Occ. Business

¶18

i';luthoot Finance,^{rep. by its BranchManager,}

¶19

neJponOents No. 2 io 6 are R/o H,No. 12-1-70, Shop No 2 SVN Road, Warangal Citv

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(Re'spondents No. 2 to 6 are not necessary rrl]frEl"r,3i,fJ?.9 U+lro*r,

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lA NO: 1 OF 2021

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Petition under Section 151^{of cPCpraying that in the circumstances statedin} the affidavit filed therewith,^{the High court may be pleased to suspend the order in} t.A.No.1/2016 in o.S.No.21 I of^{2014 on the file of Vll Additional DistrictJudge,} warangal appointing the^{receiverandDirectingthe receiverto takepossessionon} or before 6-1-2021,^{pending disposalof the above CI'4A.}

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For the Appellant : SRI^{KIRANPALAKURTHI' Advocate}

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For the Respondents :^{NO ONE APPEARS}

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The Court delivered the^{following: JUDGMENT}

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HONOURABLE SRI JUSTICE M.S,RAIYIACHANDRA RAO

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AND

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HONOURABLE SRI JUSTICE T.VINOD KUMAR

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CIVIL MISCELLANE OUS APPEAL NO.37 OF 2O2I

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JUDGMENT:

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(Pet StiJustice !r'1.5 Ramachandra llao)

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This Appeat is preferred challenging the order d1.29.12.2020 in I.A.No.l of 2016 in O.S.No.2ll o1'201,1 ol VII Aclditional District Judge, Warangal.

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The appellant is the l" def'endant in the said suit.

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The said suit was filed by the mother of the appellant by name

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V.Rathnam against the appellant and others seeking pafiition of A and B schedule properties and allotment of one such share to her with separate possession; to direct the appellant to render accounts with regard to rent alrears collected from respondents 2 to 6/defendants 2 to 6 from 01.12.2011 up to 30. 1 1 .2014, and for a direction to respondents 2 to 6 to deposit future rents from 0l .12.2014 into Court.

¶36

The I't respondent inherited a two storied building with ground

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and first floors being Municipal No. l2- l -70 and havir.rg on its rear side a two roomed Bangalore tiled house and six shops in ground floor, two big halls in the first floor situated in S.V.N.Road, Warangal and also certain gold and silver articles.

¶38

It is the contention of the I " r.espondent in the suit that she is the only natural daughter of late Cheruku Kanthaiah and Srnt. Cheruku Venkata Laxmi; rhat her father died on 27.08. 1992; that her father was a senior Advocate in warangal Bar and also former Mr,rnicipal chairman

¶39

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cnla 3? 2021

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olWarangal Municipal Corporation; that her mother died or.r 04.03.2007; that the appellant is her lourth natural son; that her natural parents lostered him and brought him up as their adopted son with the help and assistance of the 1'' respondent. She alleged that respondents 2 to 6 are their tenants.

¶42

The 1" responctent alleged that the appellant since 1991 was treated as the foster son of her late father, but there was no adoption deed. The 1't respondent alleged that the suit schedule property is the property of her father; that it is their ancestral property; that she and her husband have separated for more than two decades; that the 1'1 respondent had constructed the commercial complex which is subject matter of the suit and also constructed the first floor in 2005-06 and let it out to the 6th respondent.

¶43

She alleged that since 2001 the appellant used to collect^{the lents} and failed to pay half share in the rental amounts to the^{1'1 respondent} taking advantage ofher advanced age and ill-health.

¶44

The 1" respondent contended that the appellant was a practicing Advocate at Warangal and he cornpletely ignored the rights of^the l" respondent and drove her out from the suit schedule^{property ignoring} the relationship of the natural mother and son. She^{alleged that the} appellant used to quarrel with her and he^{had also beat her blackand} blue mercilessly, that she is very thin, aged 78^years and^{cannot resist the} onslaughts of the appellant.

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9, She alleged that the appellant developed negative attitude^towards her at the instance ol his rratural father^who is the^{1't respondent's}

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r tl

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..1'. ],ISR,J & TVK,J cma 37²⁰²¹

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husband and his^{thirdelder brotherand his eldest sister and bore grudge} against the l.t respondent^{and they formeda group to create troubles to} her.

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She also alleged^{that the District Legal Services Authority,} Warangal^passed an^{order on 30.06.2001,after mutualdiscussion} between her and the^{appellant, to dividethe suit scheduleproperty into} three equal shares.

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She denied that^{there was any adoptionof the appellantby her} natural father. She alleged^{thatshe was neckedout of her own property} by the appellant on^{21.08.2010 and that sheis currently living with her} second daughter.

¶51

She alleged that^{the appellant had failedto pay her share of rents} and also instructed the tenants^{not to pay rentsto her.}

¶52

She also alleged that the^{appellanttookawayforcibly all gold and} silver ornaments from her^{locker takingadvantageof her old age. She} alleged that the appellant,^{under influenceof his natural father and his} elder sister, is harassing her^{and avoiding partitionof the suit schedule} properties.

¶53

Thc stand of the aDDellant in th€ written^statem€nt

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Written statement was filed by the^{appellant denying these} allegations.

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He alleged that the 1'' respondent was neither a coparcener^{nor a} joint owner along with him in respect of any property including the strit schedule propert)'.

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cnl|a 31 2021

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He contended that the maniage ofthe^{l'1 respondent tookplace in} 1955 even prior to the enacttnent ol^{the Hindu Succession(Amendment)} Act, 2005 which came into force^{with effectfrom09'09.2005and since} she was a Hindu lemale daughter of^{late Cheruku Kanthaiahand} Cheruku Venkata Laxr-ni, she^{cannot be treated as a coparcener andshe} is not entitled to seek partition of^{the suit scheduleproperty.}

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l'7. According to the appellant,^the suit^{scheduleproperty was} purchased by late Cheruku^{Thirumalin 1324 Fasli and the said person} was his great grandfather.^{According to appellant,it was acquiredand} possessed by his ancestors^{prior to Hindu SuccessionAct, 1956 and he is} the adopted son of late Cheruku^{Kanthaiahand Cheruku VenkataLaxmi'}

¶59

According to him,^{Cheruku Venkata Laxmi was having undivided} half share in the suit schedule^{propefty had notional partitiontaken} place. According to him, after^{demise of his adoptive parents and as per} the Will d1.28.05.2005^{allegedly executed by Chruku Venkata Laxmi} during her tife tirne,^{he became the absolute ownerof the suitschedule} property.

¶60

According to him,^{sinceCheruku Kanthaiah died on 27'08'1992'} succession had opened^{much prior to the enactment of the Hindu} Succession^{(Amendment)Act, 2005 whichcameinto force with effect} from 09.09.2005 and^{so the l't respondent was not entitled to claim any} share in the^{property. He denied the other allegations made by the l't} respondent.

¶61

MSI{-J & |VK.J c(n 31 202ll

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20, According to him, the l'r respondent could not have constructed the commercial complex as she had no money and even the maintenance case filed by her against her husband was dismissed on merits.

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21, He alleged that he alone constructed the commercial complex and let it out to respondents 2 to 6 and he alone is entitled to collect rents as owner of the property. He denied that he is a fbster son of late Chruku Kanthaiah and Cheruku Venkata Laxmi.

¶64

He alleged that the l'' respondent was acting according to the dictates of her daughter Kumari Andalu, a practicing Advocate and junior of K.Krishna Prasad who is Advocate for the l" respondent.

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According to him, there was no adjudication of disputes between 1n the parties by the District Legal Services Authority, Warangal C.L.S.A.No. 135 of 2001. He denied that he had evicted the 1" respondent from the suit schedule propefty.

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24, He alleged that the I'r respondent hersell removed gold, silver and cash without his knowledge and consent. He therefore prayed for d isrnissal ol the suit.

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He therealter filed an additional written statement also in respect of certain third party affidavits filed by the l" respondent in I.A.No.921 of 2014.

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LA.No.l of 2016

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26.' The l" respondent hacl flled l.A.No.1 ol 2016 under Order XL Rule I CPC requesting the trial Court to appoint a Receiver to take care ol the suit schedule propefty, preserve, protect and to collect rents and

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cma 31 2021

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fbr payment of taxes in order to safeguard her alleged rights and to deposit the entire rent of Rs.62,000/- or more into the Court below till the disposal of the suit. She reiterated the averments in the plaint.

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Counter affidavit was filed in the said Application by the appellant reiterating the contents in the written statement filed by him.

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The trial court's order in IA I of20l6

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By order dr.28.12.2020, the Court below allowed I.A.No.1 of 2016.

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After referring to the respective contentions of the parties, the Court below noted that the suit schedule immovable property was inherited by the deceased Cheruku Kanthaiah; that the 1't respondent was his only daughter; and in view of the recent decision of the Supreme Court in Vineetha Sharma Vs. Rakesh Sharma and othersr interpreting the amendmertt nrade to Section 6 of the Hindu Succession Act, 2005, it held that it was not necessary that the father of the l't respondent, Cheruku Kanthaiah, should have been alive on 09.09.2005; that right in coparcenary propefty arises by birth and the 1't respondent is a coparcener and there is prima.facie case in her favour.

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30, It also held that the l't respondent is a senior citizen aged about⁸² years who is none other than the natural mother of the appellant and that the appellant did not deny that he was getting rents ofRs.62,000/- every month ftom the suit schedule property.

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I C.A,No.Diary No.32601 of20lSdecidcdon I 1.08.2020 = (2020) 9 SCC I

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MStt.J & l^vK.J crna 3'l 2021

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It also took^{note of the fact that the l" respondentwas residing} separately from^{the appetlant and the appellant alone was managingthe} immovable^{propertywhichis subject matterof the suit and receiving} rentals of Rs.62,0001-^{fromthe tenants.}

¶81

It then^{observed that since the appellantwas not fumishing} accounts to the I't^{respondentwith regard to the rentals, in future if the} Court comes to^{a conclusion that the 1" respondent is having share in the} property, it would be^{difficult for the I't respondent to get her share from} the appellant. It^{also noted that the appellantdid not furnishaccounts} before the court below^{to prove his bonafides. It also observedthat the} appellant did not^{pay any maintenance to the 1" respondent though she is} his natural mother^{and failed to lookafter her welfare'}

¶82

It relied on a Judgment^{ol this Court in ChundruSrinivas Rao}

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Vs. Chundru Venkata^{Rao2and held that if possession of the entire} property is in the hands of^{the appellant and he is screeningthe income} that would be derived^{therefrom,it would be fit case to appoint a} Receiver to ensure^{protectionof interestsof the panies.}

¶84

It therefore appointed^{an Advocate as Receiver to takepossession} of the immovable^{propertywhichis subjectmatter of the suit, to collect} rents from the tenants^{in the said property and deposit the same to the} credit of the suit along^{withdetailed statement. lt alsogave the Advocate} Receiver liberty to take appropriate^{legal stepsagainst respondents2 to 6} ifthey failed to pay the rents agreed.

\2 i992(2) APLJ 212

cma 37 2021

The nresent CMA

Assailing the same, this CMA is filed.

¶89

Heald Sri Kiran Palakurthi, leamed counsel for the appellant.

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Learned counsel for the appellant contended that the suit being one for partition and since there is no allegation of wastage of property, Order XL Rule I CPC could not have been invoked. According to him, in a suit for par-tition, only in exceptional cases to protect the interests of parties, a Receiver can be appointed, but the instant case is not one such case.

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Thc consideration bl' thc Court

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We have noted the contentiorrs of the parties.

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Admittedly, the appellant is the natural son of the 1't respondent. The l't respondent and her husband are admittedly separated from each other and there are other children of the l't respondent as well. l'he l't respondent is admittedly a senior citizen aged about 82 years.

¶94

According to the 1'1 respondent, the appellant is only a foster son of the I't respondent's natural parents, but the appellant alleges that he is the adopted son ofthe parents of the l" respondent.

¶95

Whether the appellant is the adopted son of the parents of the 1't respondent or is only their foster son is a matter to be decided in the trial.

¶96

Though the appellant contended that natural father of the i'l' respondent was not alive as on the date of coming into force of Flindu

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..o,, \l\l{.1 & l\ K..r cnlr 37 2021

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Succession (Amendment) Act, 2005, admittedly the Supreme Courtⁱⁿ Vineetha Sharma Vs. Rakesh Sharma (1 supra) had held that it was not necessary that the natural father of a daughter should be alive as on the date of coming into force of the said amendment, i.e., on 09.09.2005 fpara^{129(iii)] for the daughterto be treated as a coparcener and entitled} to have right in the property. Leamed counsel tbr the appellant is unable to show why the said^judgment does not apply to the instant case.

¶99

Therefore, we are satisfied that the 1'r respondent is a coparcener and is entitled to a share in the suit schedule properties

¶100

Whether the appellant is an adopted son or not is something which the appellant needs to prove by cogent evidence in the suit for him to claim either the entire sLrit schedule properties or income therefrom exclusivelv.

¶101

Admittedly, the appellant IS collecting rents out of the suit schedule immovable property and appropriating them himself.

¶102

The I't respondent has alleged that the rental income from the suit schedule immovable property is Rs.62,000/- per month which has not been denied by the appellant in his counter. Whether the appellant had exclusively constructed the suit schedule property out of his own income or not is a matter to be again decided during trial.

¶103

As held in Chundru Srinivas Rao Vs. Chundru Venkata Rao (2 supra) by this Court, il major portion of landed property is in poslTsion of only one individual, then if the suit is likely to be prolonged, the losers are persons who are not in possession of the

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cnra 37 2021

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propedy at all and they would be deprived of incorne therefrom. Therefore, there is nothing wrong in the appointment of a Receiver in such situations and there is no absolute bar to appoint an Advocate Receiver for the purpose ol collection of rents and for depositing therr into Court.

¶106

No doubt as contendecl by the leamed counsel for the appellant, a receiver ought not to be appointed to dispossess a person in physically possesslon.

¶107

In the instant case, though the Court below had used the words "Advocate Receiver should take possession of the property", it is clear that it only intended symbolic possession to be taken, and not physical possession because the Court below has directed the Advocate Receiver to collect rents from respondents 2 to 6 and deposit them into Court.

¶108

Moreover,, to test the bonafides of the appellant, this Court^had asked the appellant to file copies of income tax returns. In all^these computation statements, annual letable value is indicated, but the rent receivable is shown as zero.

¶109

In the decision in S.Saleema Bi Vs. S.Pyari Begum3 cited by the leamed counsel lor the appellant, there is no discussion of^{facts and} the order passed by the High Court^was set aside^{observingthat the High} Court did not go into the^{questionwhether it was just and convenient to} appoint a Receiver and there was prima facie case in^favour of^the plaintiff. Therefore, the said decision does not assist the appellant.

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3 (zooo) s scc soo

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MSR.J & TVK.J ::1 I :: cma 3'7 2021

¶112

52, In Bhupathiraju Venkata Ramaraju Vs. Bhupathiraju Ramakrishnamrajua relied upon by the appellant, the High Court, on the basis of a denial in the written statement observed that existence of prima facie case in favour of the plaintiff cannot be inferred at interlocutory stage so long as the question is not conclusively determined at the trial. The proposition quoted in the said judgment does not appear to us to be corect.

¶113

The decision in Anupama Homes India Pvt. Ltd. Vs. P. Shouri Rajas relates to appointment of an Advocate Receiver to take possession of the properties of a limited company, which is not the situation in the instant case. Moreover, the suit in that case was not a partition suit at all.

¶114

In Chelikam Rajamma Vs. Padileti Venkataswami Reddy6, a Division Bench of this Court observed in para 11 that:

¶115

"(l 1) From an analysis of Order 40, Rule I of the Code of Civil Procedure in the light of the case law in relation to porlition suits, the following propositions may be deduced: (t) The appointment of receiver cannot be resorted to lightly without considering the entire facts and circumstances. (2) The party seeking the appointment of receiver must make out a case that he or she was not only kept out of possession of the properties unauthorisedly, but the party in possession is indulging in acts of waste leading to the inference of incompetence. (3) !/; prima facie, the ptaintiff has excellent chance of succeeding in the suit, there being no denial with regard to his or her share in the plaint schedule properties, the conducl of the opposite purty in keeping the plaintif.f out of possession u,ill be relevant consitlerution for direc'ting the opposite party to deposit a sum o.[ money approximalely representing the value of the yield pertaining to the share oJ the plainliff pending disposal of the suit. Even in such circum:;lunces, u receit,cr shoultl rutt be

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{^{roso 1:; elr zoz} | 200',7 t6) ALT 122

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u )gs.l (z) et-r t s+

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crna 37 2021

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appoinled to ous! lhe possession of the opposite party from the joittt family^{properties.The protection of the propertiesand} safeguarding of the rights of the parlies shall be the tv'in objectives impelling the appointment of receiver.^'

¶120

ln this^judgment, even the decision in Chundru Srinivas Rao Vs.

¶121

Chundru Venkata Rao (2 supra) was noticed though it is stated that the proposition of law was too widely stated in the said case.

¶122

55, According to us, in a partition action, normally appointrnent of Receiver cannot be resorled lightly without considering the entire lacts and circumstances of the case. The party seeking appointment of a Receiver should rnake out a case that such party was not only kept out ol possession of tl-re property unauthorisedly, but the party in possession had been indulging in acts of waste or other akin or like reasons. If prima .facie the plaintiff has excellent chance of succeeding in the suit and there is no specific denial relating to him or hel share, the conduct of the opposite party in keeping the appellant out of possession would be relevant consideration.

¶123

Admittedly, the 1't respondent is already aged about 80 years. The suit is of the year 2014 and it appears that issues were framed only on 18.03.2020 and the next hearing date was on06.04.2020, and in view of the Covid-19 pandemic, it would obviously have been adjourned without the trial having commenced.

¶124

57, Ilaving re-eard to the relationship of nrother and son between the l't respondent and the appellant, and since the appellant's case about adoption is yet to be proved in the Court below, and since the 1'r respondent is having prima facie case in regard to her share in the suit

¶125

:: l3l: MSR,J & I'VK,J cma 37 2021

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schedule property (being only natural daughter of Cheruku Kanthaiah and his wife), and since in the instant case the Court below has merely appointed a Receiver to collect rents from tenants and deposit them into Court to safeguard the interests of both parties, we do not wish to interfere with the order passed by the Court below in the facts and circumstances of the case.

¶127

Therefbre, the Appeal fhils and is disrnissed.

¶128

In view of the fact that the plaintifT in O.S.No.2ll of 2014 is a Senior citizen and the suit is an old suit, the court below is directed to dispose of the said suit as expeditiously as possibly preferably within one year from today. No costs.

¶129