Arun Kumar Mitra, J.@mdashThis second appeal has been preferred by the Appellant challenging the judgment and order No. 22 dated October 19, 2001 passed by the learned Additional District Judge, Midnapore in Title Appeal no 26 of 2000 rejecting the application for appointment of Receiver in connection with Title Suit No. 47 of 1994 passed by the learned Second Assistant District Judge, Midnapore.
2. This appeal arose in connection with a suit for declaration and according in respect of the suit property. The Plaintiff, who is the Appellant herein made out his case in the plaint in the manner inter alia as follows:
The suit property has been described in the Schedule of the plaint. In and over the suit land, there is a haat named Binpur haat and the said haat has been running in and over the suit land for more than 45 years. The said Binpur haat is the property-in-dispute in this suit. One Nasir AM Khan was the purchaser of the Plaintiff and the Defendants. Nasir Ali Khan had two wives. By his first wife he has nine sons and by his second wife he has four sons. Defendant Nos. 1, 2 and 3, Azad Ali Khan (the purchaser of Defendant Nos. 4 to 6) and Defendant No. 7 to 10. By his second wife the four sons are Defendant Nos. 11 to 14.
During his life time Nasir Ali Khan took settlement of the Binpur Haat in the year 1355 B.S. from Midnapore Zamindari Company in the name of his eldest son (Defendant No. 1). Thereafter, by successive settlements from Midnapore Zamindari Company, in the name of his said eldest son. Nasir Ali Khan used to run the haat. Thereafter, Nasir Ali Khan took permanent lease of land of plot No. 1 in Binpur haat in the name of his second son the Defendant No. 2 from the said Midnapore Zamindary Company on March 18, 1953/April 9, 1953 and after a few days thereafter he purchased the land on plot No. 1 of Binpur haat in the name of Defendant No. 2 on March 25, 1953 and was carrying on the business of the Binpur haat himself with the assistance of all his sons.
3. Consequently, different lands of Binpur haat stands in the name of different sons of Nasir Ali Khan. The sale deed of land of plot No. 1 stands in the name of Defendant No. 2, the deed of land of plot No. 2 stands in the name of plot No. 1 and the sale deed of plot Nos. 3 and 4 stand in the name of Defendant No. 8. One sale deed of plot No. 2 in the name of the Plaintiff is dated December 30, 1956 being numbered 7313.
Binpur haat which is being run on the suit land was the property of Nasir Ali Khan and till his death on June 4, 1974 he was the owner of the haat and he used to run the same with the assistance of all 13 of his sons by his two wives. Before his death Nasir Ali Khan expressed his wish that after his death all his 13 sons will be the owners of the Binpur haat and all these 13 sons will divide equally the income of the Binpur haat after defraying the costs of maintenance, payment of Income Tax, Panchayat charge and other taxes for the said haat. Nasir Ali Khan also directed that none of his sons will be allowed to deprive any other sons from the income of the disputed haat. Therefore, as per above, it will be found that the Binpur haat is the joint property of the 13 sons of Nasir Ali Khan and all the 13 sons are the owners of the said haat in equal share.
4. According to the Plaintiff/Appellant the said desire of Nasir Ali Khan the plaint property should be equally enjoyed by 13 sons and this was admitted and through three agreements dated April 9, 1991, May 3, 1991 and August 11, 1991 this was settled.
The DLLRO (1) Binpur P.S. conducted a local inquiry on March 15, 1994 and found that the Binpur haat is being run in all the suit plots described in the schedule of the plaint. The Plaintiff has annexed a sketch map (in the light green colour) at the end of the plaint for the purpose of treating the same as a part o the same. From the map it will be found that all the lands of Binpur haat is a compact block.
One Feko ghat haat in Belebara P.S. the 13 sons of Nasir Aii Khan have been enjoying the income of the said that as joint property.
Elan Ali Khan (Defendant No. 8) taking advantage of the sale deed in his name in respect of land of plot Nos. 3 and 4 filed a suit being Title Suit No. 15 of t1994 in the Court of learned Assistant District Judge, Midnapore and after getting an injunction order on May 6, 1994 he is collecting tolas from the vendors from lot Nos. 3 and 4 and is not allowing the Plaintiff to collect tolas from the said two lots from May 9, 1994.
On such incidents as a retaliation the Defendants 1 and 2 also taking advantage of the sale deeds of land in their names in respect of land in lot No land share in lot No. 2 and they are also not allowing the Plaintiff to collect tolas from the vendors.
They are collecting tolas from the vendors in lot No. 1 and 2 and in fact they are collecting 16 annas tolas from these vendors and are not giving the share of income of the haat from lot Nos. 1 and 2 from May 9, 1994 as stated above, although the Plaintiff is a co-sharer in respect of 4 annas of land in lot No. 2 as well as 16 annas of land in plot No. 253 measuring 01 decimals of land in lot No. 2. The current L.R. Parcha of lot No. 2 has been accordingly prepared in the name of the Plaintiff. In fact the Defendant Nos. 1, 2 and 3 are taking the entire income of the Binpur haat forcibly from lot No. 1 and as alleged by the Plaintiff being afraid nothing could be done by him inasmuch as the Plaintiff is apprehensive of bodily injury from them.
5. The Plaintiff has categorically stated in the plaint that this is a suit for declaration of shares and for accounting and it is not known when it will be ended. On the other hand Defendants 1, 2 and 3 will be collecting tolas from the suit haat merely and they will go on misappropriating the legitimate share of the Plaintiff for indefinite period. The suit haat has a weekly average income of Rs. 7000/- to Rs. 8000/-. In Plaintiff''s share i.e. 1/13th it comes to the tune of Rs. 500/- to Rs. 550/-per week. The Plaintiff is being deprived of his said income from the suit haat from May 9, 1994.
The Plaintiff in the plaint prayed for appointment of receiver and the Plaintiff also demanded his legitimate 1/13th share of the suit haat and demanded accounts which they refused to do so last. In the High Court, the Plaintiff/Appellant preferred appeal which is the instant appeal challenging the order No. 22 dated October 19, 2-001 passed by the learned Additional District Judge, Midnapore. In this appeal the Plaintiff/Appellant filed an application for appointment of receiver as stated above.
The Respondent Nos. 2(a) to 2(k) filed affidavit-in-op-position to the said receiver application. In the said application the Respondents/opposite parties denied the right, title and interest of the Plaintiff in and over the suit plot and/or the suit haat. The opposite party Nos. 2(a) to 2(k) stated in the opposition that Panchayat granted licence in favour of the predecessor-in-interest of the opposite party Nos. 2(a) and 2(k) for carrying on the haat in the said lands in question. The said Respondents also stated that Sattar AM Khan, the predecessor-in-interest of the opposite party Nos. 2(a) to 2(k) has died on November 20, 2001 and after such demise the opposite party Nos. 2(a) to 2(k) made an application before the Sabhapati, Binpur-I Panchayat Samity praying, for grant of licence. On the basis of such application, on November 22, 2001 the Sabhapati, Binpur-I Panchayat Samity and the Executive Officer, Binpur-I Panchayat Samity issued a licence in favour of the opposite party Nos. 2(a) to 2(f) for holding haat in respect of lands-in-question in Binpur Panchayat Samity area and the opposite party Nos. 2(a) to 2(k) are carrying the haat oh the lands-in-question on the strength of the said licence dated November 20, 2001. Opposite parties have annexed a map of the said licence as annexure ''1-2'' to the said opposition.
The opposite party Nos. 2(a) to (k) claqimed absolute ownership in respect of the three acres of lands-in-question.
In the opposition it has also been stated that the opposite party No. 8, Elan Ali Khan instituted Title Suit No. 15 of 1994 in the Court of learned Assistant District Judge, 2nd Court of Midnapore.
The predecessor-in-interest of the opposite party Nos. 2(a) to 2(k) entered appearance in the said suit and contested the same by filing a written statement.
6. The Plaintiff herein instituted Title Suit No. 47 of 1994 in the Court of the learned Assistant District Judge, 2nd Court of Midnapore. In the said Title Suit also the Defendants/opposite parties 2(a) to 2(k) herein also filed written statement and contested the suit. But since the Title Suit No. 47 of 1994 was ready for hearing, the learned Assistant District Judge, 2nd Court at Midnapore heard out the said Title Suit No. 47 of 1994 without going into the merit of the application under Order 40, Rule 1 of the Code of Civil Procedure.
It is also stated in the opposition that Title Suit No. 15 of 1994 and Title Suit No. 47 of 1994 were heard analogously and the learned Trial Judge dismissed both the suits on contest without costs by judgment and decree dated January 19, 2000.
The Petitioner preferred appeal being Title Appeal No. 6 of 2000 before the Court of the learned District Judge at Midnapore challenging the judgment and decree dated January 19, 2000 in Title Suit No. 47 of 1994 passed by the learned Civil Judge, Senior Division, 2nd Court at Midnapore. In the said Title Appeal No. 26 of 2000 the Plaintiff/Appellant filed an application under Order 40 Rule 1 of the Code of Civil Procedure.
The said Title Appeal was transferred to the learned Additional District Judge and the learned Additional District Judge, Midnapore by Order No. 22 of October 19, 2001 rejected the application under Order 40 Rule 1 (impugned order herein). It has also been stated by the Defendants/Respondents that the opposite parties therein (Respondents herein) filed written objection to the said appeal.
Here, also against the petition/application filed by the Plaintiff for appointment of receiver, the Defendant Nos. 2(a) to 2(k) filed affidavit-in-opposition. The Plaintiff/Appellant in turn filed the affidavit-in-reply and reiterated his stand taken in the application for appointment of receiver being C.A.N. 3334 of 2002. In that view of the matter the whole appear and application here filed by the Plaintiff/Appellant-relates to only one point as to whether there should be receiver or not in respect of Binpur haat.
7. Mr. Roychowdhury, the learned senior counsel appearing on behalf of the Plaintiff/Appellant submitted that on the face of admitted facts noted by the appellate Court below and the straightway denial of rights of any of the usufruct of haat would entail immediate appointment of receiver.
Mr. Roychowdhury further submitted that the property was leased out in favour of Nasir All Khan. During the last part of 1988 dispute arose. The suit was filed in 1994 and the receiver application was filed on November 17, 1994.
Mr. Roychowdhury submits that the Trial Court disposed of the Title Suit on January 19, 2000. Three agreements were executed on April 9, 1991, May 3, 1991 and August 11, 1991 which establishes the right of the Plaintiff i.e. 1/13th share in and over the income from the haat.
Mr. Roychowdhury also submitted that in any event the Plaintiff is entitled to 1/13th share from the haat income but the Plaintiff is actually getting nothing.
Mr. Roychowdhury in support of appointment of receiver relied on various decisions. I am to took into the submissions of both Mr. Roychowdhury and Mr. Dasgupta first and then I will consider all the judgments cited on behalf of both the parties.
Mr. Roychowdhury also submitted that the import of agreements entail the doctrine of promissory estoppel.
Mr. Roychowdhury further submitted that the learned appellate Court below went on wrong in coming to a conclusion that the Defendant No. 2(a) is a title holder in respect of the property.
8. Mr. Dasgupta on the other hand submitted that the suit is not maintainable in view of the provisions of Section 4 of the Benami Transactions Act. The suit has been filed long after the said benami.
Mr. Dasgupta further submitted that the three agreements cannot be relied upon by the Plaintiff inasmuch as all the three agreements are unregistered.
Mr. Dasgupta further submitted that collection of tola by the Defendant Nos. 2(a) to 2(k) is proper and valid in view of the fact that tola is collected from the Binpur haat situated in and over the suit land nd the suit land belongs to Defendant Nos. 2(a) to 2(k) and the agreements referred to by the Plaintiffs are not valid inasmuch as those are not registered and in case of immovable property agreements must bet registered.
Mr. Dasgupta also submitted that Plaintiffs claim about 1/13th share in respect of the land and/or the haat is invalid claim inasmuch as the Plaintiff has no right, title and interest in and over the suit property.
Mr. Dasgupta then submitted that appointment of receiver is a discreationary power of the Court and the Court may not exercise discreation if the situation is not favourable for appointment of receiver.
All these submissions of Mr. Dasgupta were backed by some judgments which 1 will discuss later on.
Mr. Dasgupta then submitted that Section 117 of the West Bengal Panchayat Act, 1973 grants power to a Panchayat Samity to grant licence for haat or market and his clients have been granted licence of Binpurhaat on proper inquiry.
Mr. Dasgupta submitted that the Plaintiff was never in possession, neither the Plaintiff has got any right, title and interest over the suit property and as such the question of appointment of receiver on the property does not arise.
Mr. Dasgupta also submitted that deed of settlement, unless registered has got no value and by virtue of any such document the Plaintiff/Appellant cannot claim any right.
9. In support of their contentions both the learned Counsel placed and/or relied upon different judgments which are mentioned and discussed in this relevance.
In this judgment the Hon''ble Apex Court has dealt with as to how a question of estoppel arises. The observations made by the Hon''ble Apex Court in para. 22 is quoted hereinbelow:
22. It may be pointed out that estoppel deals with questions of facts and not of rights. A man is not estopped from asserting a right which he had said that he will not assert. It is also a well-known principle that there can be no estopped against a statute. After the death of Motibhai his son Chimanrai succeeded in law.
The Hon''ble Apex Court makes it clear that estoppel is in connection with the questions of facts and not on questions of law.
In another decision reported in Suprasanna Roy v. Upendra Narain Roy 18 C.L.J. 638 passed by the Hon''ble Division Bench of this High Court, this judgment was delivered by Sir Asutosh Mookherjee. In this judgment it has been made clear that when and under which circumstances receiver is to be appointed. It was also observed in this judgment who should be appointed as receiver. In this judgment their Lordships made certain findings making it clear as to how, as to when and as to whom the receiver will be appointed. These observations are quoted hereinbelow:
Upon the facts stated, it is plain that the title of the Plaintiff to one half share of the estate cannot be disputed. The Plaintiff has attained majority and is entitled to the enjoyment of his share. When the partition is effected, he will be entitled to take his share severally but so long as partition is not effected, he is clearly entitled to receive approximately one-half share of the net income of the estate. This aspect of the matter was not appreciated by the Court below and as the Subordinate judge has made an order which is manifestly erroneous, it is desirable to explain the principles applicable to a case of this description. At one time, it was held in England that as between legal co-owners of land, the Court of Chancery would not appoint a Receiver unless by consent : Ramsden v. Fairthrop (1) : or unless the Applicant was prevented from exercising his legal rights of entering into possession and sharing in the management Milbank v. Revett (2) and Spratt v. Aheame (3). In the same way, as between equitable co-owners, exclusive occupation by one owner in the sense that he refused to pay to his co-owners their proper share of the rents and profits, has always been deemed a good ground for the appointment of a Receiver, Syson v. Iairelaugh (4). After the Judicature Act, however, it has been repeatedly held that the Court has jurisdiction to appoint a Receiver until the hearing of a partition action or until further order, even though there is no exclusive occupation by any party and the Court will not hesitate to do so whenever it is just and convenient. The cased for the appointment of a Receiver is much stronger, if a party to the partition action is in sole occupation; in such a case, any other party may obtain a Receiver either of his share of the rents and profits or of the whole estate: Sanford v. Ballard (1), Sanford v. Ballard (2) and Porter v. Lopses (3). The Court may also allow the party in exclusive occupation to elect to pay to the other an occupation rent Teasdale v. Sanderson (4) or the Court may require security from the co-owner in exclusive occupation to account for their share of the rents to the other co-owners. Street v. Anderton (5). Consequently, in cases of this description there are four alternative courses open : (1) the Court may require security from the person in sole occupation; (2) the Court may require him to pay occupation rent; (3) the Court may appoint a Receiver of the share of the Plaintiff or, (4) the Court may appoint a Receiver of the entire estate.
In the case before us, there is no room for controversy that a Receiver should be appointed in respect of the whole estate. The Plaintiff is, as already stated, the owner of the one-half share of the estate. He has attained majority, is a married man and has a family to support. He is further engaged in this litigation and has to bear heavy expenses. If the Defendant is directed to furnish security, the order would be of no avail to the Plaintiff and would not afford him immediate relief in the least degree. If the Defendant is directed to pay occupation rent, the Plaintiff would be entitled to claim one-half share of the income of the estate. But it would be difficult, if not impracticable, to carry out the order, because the parties are hopelessly at variance as to the amount of the annual income which has been estimated at figures varying from Rs. 30,000 to Rs. 50,000. If a Receiver is appointed in respect of the one-half share of the Plaintiff, there will obviously be an immediate conflict between the Receiver and the Defendant and the management of the estate will be completely paralysed. Under these circumstances, the only feasible and practicable course which can be adopted without detriment to the parties is to appoint a Receiver or the whole estate.
The next question for consideration is, who should be appointed Receiver. As pointed out by this Court in the case of Kali Kumari v. Bachhun Singh (6), one of the parties to a litigation should not ordinarily be appointed a Receiver and very exceptional circumstance must be established to justify the appointment of a party as Receiver. In our opinion, in the present case such grounds have been mae out. The appointment of a stranger would mean the imposition of a heavy burden upon the estate which is already encumbered; and it might also tend to dislocate the management. The Defendant, on the other hand, has offered to accept the appointment as Receiver of the Court decides that a Receiver should be appointed. He has further agreed to bring into Court Rs. 10,000 within two weeks from this date, for payment to the Plaintiff, he has also contended to bring into Court Rs. 10,000 a year in four equal instalments for payment to the Plaintiff. In view of the offers thus made, we are of opinion that the Defendant may very well be appointed Receiver. We accordingly appoint him Receiver with effect from this date. His share of the joint estate in controversy will remain as security for the due performance of his duties as Receiver. He will bring into Court Rs. 10,000 within fourteen days from this date. As soon as the money is deposited in this Court, it will be paid out on the joint receipt of the Plaintiff and his trustees who are parties to the suit. No further order from the Court will be required in this behalf. As regards the sum of Rs. 10,000 which the Defendant undertakes to bring into Court annually in four equal instalments, we direct that the first instalment of Rs. 2,500 be deposited in this Court on or before the 31st October next. As soon as the money is deposited it will be paid out on the joint receipt of the Plaintiff and his trustees. The subsequent instalments of Rs. 2,500 each will similarly be deposited in this Court upon the expiration of every period of three months and will be similarly paid out to the Plaintiff and his trustees on their joint receipt. The Receiver will in all matters act under the direction of the Subordinate Judge. As regards the submission of accounts, we direct that the Receiver do submit his accounts every three months in the Court of the Subordinate Judge. If the Receiver fails in deposit Rs. 10,000 as directed, or to deposit Rs. 2,500 every three months as ordered above, he will be discharged and the Subordinate Judge will proceed forthwith to appoint another person as Receiver. At the end of twelve months from this date, the parties will be at liberty to apply to this Court to vary this order as regards the annual payment of Rs. 10,000.
10. In this judgment their Lordships appointed one of the parties (Defendant) as Receiver and directed him to render accounts to the Court and to make equal shares of the properties.
In this judgment the Hon''ble Apex Court has found that where a statement appears in the judgment of a Court that a particular thing happened pr did not happen before it, it ought not ordinarily be permitted to be challenged by a party unless both the parties to the litigation agree that the statement is wrong or the Court itself admits the statement is erroneous. The remedy of a party aggrieved is by way of review.
Another judgment placed before this Court is of one HOn''ble Division Bench of this High Court reported in
11. Now comes the decision reported in Munna Lal (Dead) by
6. Turning to Ex. T we find it impossible to accept the contention that the partition of the shops was itself effected by the document. The document expressly mentions that the parties had appointed one Thakar Chandgi Ram Gupta as a Punch and that they had decided to accept the decision given by him. The document then sets out the terms of that decision and says : ''We both shall be bound by that decision''. It is contended that the decision of the Punch must must be treated as a nullity because a Punch is in the position of an arbitrator and he could not have acted except in accordance with the provisions of the Arbitration Act. This argument seems to us too sophisticated to be applied to the facts before us. The parties appear to have asked a person of common confidence to effect the partition and it was not intended to resort to any formal proceeding under the Arbitration Act. It was therefore not necessary for the parties to execute a formal reference or for the Ranch to declare a formal written award. As a memorandum of a past event, the document could, therefore, be received in evidence though it is not registered. The first contention accordingly fails.
7. As regards the second contention that Ex. ''Y'' is not binding on Defendant 1, he not having signed it the absence of Defendant 1''s signature on the memorandum of partition will not invalidate the partition effected by the Panch. Besides, as held by the High Court, the conduct of the parties subsequent to the partition shows that the arrangement effected under the guidance of the Panch was mutually accepted and acquiesced in. After the partition the erstwhile partners began to look after their respective properties separately. The property allotted to the share of the Plaintiff was in the possession of a tenant but Defendants 1 to 3 did not ever ask for a share in the rent of the property. It is urged on behalf of the Appellant that there is nothing to show that the tenant paid the rent. But, in the absence of any allegation that the tenant had not paid the rent it would be reasonable to assume that the tenant had not committed default in payment of the rent. Further, taxes in respect of the shop allotted to the share of Defendants 1 to 3 were separately paid by them. Thus the second contention must also fail.
This judgment clarifies the position as to what would be the effect of non-registration of a document.
12. Then let me discuss another decision of the Hon''ble Apex Court reported in
10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions.
(1) The family settlement must be a bona fide one so as to resolve family dispute and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion, or undue influence;
(3) The family arrangements may be even oral in which case ho registration is necessary;
(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writin. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extin-guish any rights in immovable properties and there-fore does not fall within the mischief of Section 17(2)(sic) Section 17(1)(b) of the Registration Act and is, there-fore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes; present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable and the family arrangement is final and binding on the parties to the settlement.
27. As regards the first point it appears to us to be wholly untenable in law. From the principles enunciated by us and the case law discussed above, it is absolutely clear that the word ''family'' cannot be construed in a narrow sense so as to confine the parties to the family arrangement only to persons who have a legal title to the property. Even so it cannot be disputed that the Appellant Kale being the grandson of Lachman and therefore a reversioner at the time when the talks for compromise took place was undoubtedly a prospective heir and also a member of the family. Since Respondents 4 nd 5 relinquished their claims in favour of the Appellant Kale in respect of Khattas 5 and 90 the Appellant, according to the authorities mentioned above, would be deemed to have antecedent title which was acknowledged by Respondents 4 and 5. Apart from this there is one more important consideration which clearly shows that the family arrangement was undoubtedly a bona fide settlement of disputes. Under the family arrangement as referred to in the mutation petition the Respondents 4 and 5 were given absolute and permanent rights in the lands in dispute. In 1955 when the compromise is alleged to have taken place the Hindu Succession Act, 1956, was not passed and Respondents 4 and 5 would have only a limited interest even if they had got the entire property which would ultimately pass to the Appellant Kale after their death. The Respondents 4 and 5 thought that it would be a good bargain if by dividing the properties equally they could retain part of the properties as absolute owners. At that time they did not know that the Hindu Succession Act would be passed a few months later. Finally the compromise sought to divide the properties between the children of Lachman, namely, his two daughters and his daughter''s son the Appellant Kale in equal shares and was, therefore, both fair and equitable. In fact if Respondents 4 and 5 would have got all the lands the total area of which would be somewhere about 39 acres they might have to give away a substantial portion in view of the ceiling law. We have, therefore, to see the circumstances prevailing not after the order of the Assistant Commissioner was passed on the mutation petition but at the time when the parties sat down together to iron out their differences. Having regard to the circumstances indicated above, we conceive of a more just and equitable division of the properties than what appears to have been done by the family arrangement. In these circumstances, therefore, it cannot be said that the family settlement was not bona fide. Moreover Respondents 4 and 5 had at no stage raised the issue before the Revenue Courts or even before the High Court that the settlement was not bona fide. The High Court as also Respondent No. 1 have both proceeded on the footing that the compromise was against the statutory provisions of law or that it was not registered although it should have been registered under the Registration Act.
28. There is yet one more intrinsic circumstance which shows that the compromise was an absolutely bona fide transaction. It would appear that at the time of the compromise Respondent 5 Ram Pyari was faced with a situation when her marriage in 1955 was not so far proved. If she was absolutely certain that her marriage had taken place in 1955 she would not have agreed to the terms at all. On the other hand if she thought that she might not be able to prove that her manage took place in 1955 and if it was shown that she had married before 1955 then she would be completely disinherited and would get nothing at all with the result that the Appellant Kale would get the entire property. On the other hand the Appellant must have similarly thought that a bird in hand is worth two in the bush. So long as Ram Pyari was alive he would not be able to enjoy the property and would have to wait till her death. It was, therefore, better to take half of the property immediately as a permanent tenure holder and give the half to the daughters of Lachman namely, Har Pyari and Ram Pyari. Thus under the terms of the compromise both the parties got substantial benefits and it was on the whole a very fair and equitable bargain. In these circumstances, therefore, the parties struck a just balance and a fair and beneficial settlement which put an end to their disputes.
13. Another decision of the Hon''ble Apex Court has been placed which is reported in Padma Vithoba Chakkayya v. Mohd. Multani and Anr. AIR 1963 S.C. 70. In this judgment the Hon''ble Apex Court discussed the position of registration of a document in terms of Sections 17 and 49 of the Registration Act and the observations in para. 8 in this regard has been laid stress on which is quoted here-in below:
8. The endorsement of cancellation on the back of the sale deed in favour of Rajanna dated December 21, 1923 has been held as already stated, to be inadmissible in evidence as it is not registered. The result of it is only that there was no retransfer of title by Rajanna to the second Defendant and the family would in consequence continue to be the owner and that is why the Appellant is entitled to redeem. But the endorsement, taken along with the sale deed by the second Defendant in favour of the first Defendant is admissible in evidence to show the character of possession of the latter. Vide Varada Pillai v. Jeevarathnammal 46 Ind. App. 285 : AIR 1919 IX 44. And that was clearly adverse to the owners. The answer of the Appellant to this contention is that Rajanna himself was a minor at the time when his arrangement is stated to have taken place and that in consequence no title by adverse possession can be founded on it. We agree that if Rajanna was a minor when he entered into this arrangement that would not operate to alter the character of the possession of the first Defendant as mortgagee. The Respondent contended that there could be adverse possession against a minor in certain circumstances and relied on the decision in
The decision reported in Bhubanmohini Dasi and Ors. v. Kumudbala Dasi and Ors. 28 C.W.N. p. 131 which observes that the case must be deal with on reasonable probabilities and legal inferences arising from proved or admitted facts, or with reference to the surrounding circumstances, where, however, from the lapse of time, direct evidence of a conclusive or reliable character is not forthcoming as to the payment of consideration.
14. Now, let me discuss the position of a benami transaction. The judgment delivered by the Hon''ble Apex Court in
14. At this stage, we may also usefully refer to Section 7(1) of the Act which lays down that Sections 81, 82 and 94 of the Indian Trusts Act, 1882 of 1882. Section 66 of the Code of Civil Procedure, 1908 (5 of 1908) and Section 281-A of the Income Tax Act, 1961 (43 of 1961) are thereby appealed. We have already seen Section 82 of the Indian Trusts Act which give almost for a period of a century or more a legal right to the real owner claim against the purported owner that the consideration paid was by the real owner and the transferee held the property for the benefit of the person paying consideration for supporting the transaction. It is this right which got destroyed by Section 7 of the Act with effect from 19-5-1988. If any suits or proceedings were pending prior to that date, invoking Section 82 of the Indian Trusts Act, what is to happen to such suits is not answered by Section 4(1) of the Act or by any other provisions of the Act. We have, therefore, to turn to the General Clauses Act, 1897 for finding out an answer. Section 6 of the General Clauses Act lays down:
Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears the repeal shall not-
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forefeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.
It becomes, therefore, obvious that the Act by Section 7 has effected a repeal of Section 82 of the Indian Trusts Act and while repealing this provision no different intention appears from the Act to affect any right, privilege or liability acquired u/s 82 by either side or any pending proceedings regarding such obligation or liability. Therefore, such pending proceedings will have to be continued or enforced as if the repealing Act had not been passed. A conjoint reading of Section 82 of the Indian Trusts Act and Section 6(b), (d) and (e) of the General Clauses Act clearly enjoins that if suits are pending wherein the Plaintiffs have put forward claims under the then existing Section 82 of the Indian Trusts Act such proceedings are to be continued by assuming that the repealing of Section 82 of the Indian Trusts Act has not been effected in connection with such pending proceedings. Unfortunately, this aspect was not pressed for consideration before the Division Bench And therefore, the view taken by the Division Bench is likely to result in an incongruous situation. If a view is to be taken that a pending suit wherein Plaintiff might have contended that the real consideration flowed from him and the Defendant was not the real owner and held the property benami as per Section 82 of the Indian Trusts Act, 1882, has to be continued by ignoring the present Act, it will be inconsistent with the conclusion reached by the Division Bench. As per the Division Bench, such suits must necessarily be dismissed at whatever stage they might be pending between the parties.
Therefore, interpretation of Section 4(1) by the Division Bench would direct with the legislative scheme emanating from Section 82 of the Indian Trusts Act, 1882 read with Section 6 of the General Clauses Act discussed above. Even otherwise, it is now well settled that where a statutory provision which is not expressly made retrospective by the legislature seeks to affect vested rights and corresponding obligations of parties, such provision cannot be said to have any retrospective effect by necessary implication. In Maxwell on the Interpretation of Statues, 12th Edn. (1969), the learned author has made the following observations based on various decisions of different courts, specially in Athlumncy, Re.3 at pp.551, 552.
Perhaps no rule of construction is more firmly established than this-that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. The rule has, in fact, two aspects, for it, ''involves another and subordinate rule, to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary.
15. In the case of Garikapti Veeraya v. N. Sub-baiah Choudhary AIR p. 553, para. 25 Chief Justice S.R. Das speaking for this Court has made the following pertinent observations in this connection;
The golden rule of construction is that, in the absence of anything in the enactment to show that it, is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed.
15. Then reliance has been placed on another decision of the Hon''ble Division Bench of this High Court reported in Syed Golam Mohiuddin Hossein and Ors. v. Musstt. Parbati 13 C.W.N. 596. In this judgment it has been observed that the rents and profits derivable from a hat can be validly mortgaged. A covenant in the mortgage that it should subsist notwithstanding the removal of the hat to another shop whether valid or nor did not affect the Plaintiffs rights, as at the time of his purchase the hat was in the same place in which it existed at the time of the mortgage.
Reliance has been also placed on another Apex Court decision reported in
27. In Rameshwar Pratap Narain Singh case rights to holdmelas were acquired by Section 7-C of Bihar Land Reforms (Amendment) Act, 1959 constitutionality of which had come to be questioned. This Court by upholding its validity rejected the similar contentions holding at p. 387 that when the right to holdmelas is taken over by the State the only purpose is the augmentation of revenue. This is scope for thinking that the legislature believed hat melas would be better run and be more in the interests of the general public when run by the State than When they are left without control in the hands of private individuals with whom the profit motive is likely to be the sole guiding principle. Law may provide for acquisition even though the purpose behind acquisition is not a public purpose. It was also held that augmentation of revenue by the State may be incidental to the acquisition. On that account, it cannot be said that melas were not intended to be acquired under the Act. Proprio vigore, the ratio would apply to the facts of the case. Moreover, right to hold bazar is an interest in the land. Section 3 of the Transfer of Property Act, 1882 defines ''immovable property'' to exclude standing timber, growing crops and grass. In other words, all other interests in the land are integral to immovable property.
Then again, reliance has been placed in the judgment reported in Avaran Kutti (minor) by next friend, Kalathingal Ithalukki v. Cherivakkan and Ors. AIR 1953 (Mad.) 480. In this judgment the effect of contractual obligations have been dealt with.
Than again, a decision of the Privy Council reported in
Another decision on which reliance has been placed is reported in
Then again Ambika Prasad Thakur and Ors. v. Ram Ekbal Rai (dead) by his legal representatives and Ors. AIR 1966 S.C. 605 has been relied upon which discusses the point of limitation and which also observes that new point or now case cannot be urged in, higher forum when it has not been taken up in the trial Court.
Another judgment delivered by Sir Ashutosh sitting in Division Bench reported in Mathura Mohan Saha and Ors. v. Ramkumar Saha and Chittagong District Board 23 C.L.J. 26 has been relied upon. In this judgment delivered by Sir Ashutosh it has been observed that title of land does not pass by admission.
16. Then again on the doctrine of promisory estopped another judgment has been referred to which has been reported in
Decision
17. Heard the learned Counsel for the parties and considered the documents on record including the order impugned and carefully examined the citations placed above by both the parties.
As observed earlier I am to decide as to whether the appellate Court should have appointed receiver or not and whether this Court can do it or should do it. Now, regarding the power of High Court to appoint receiver is there or not. Quoting Woodroffe on jurisdiction to appoint receivers;
The Presidency High Courts possess the same powers with regard to the appointment of a receiver as are possessed and exercised by the courts in England under the Judicature Act of 1873 and the practice in respect of these matters should be the same. But while under the last Code all Civil Courts, with certain exceptions had jurisdiction to issue injunctions, on the other hand, the powers conferred by that Code in respect of the appointment of receivers could be exercised by the High Courts and District Courts only; provided that whenever the Judge of a Court subordinate to a District Court considered it expedient that a receiver should be appointed in any suit before him-, he was to nominate such person as he considered fit for such appointment and submit such person''s name with the grounds for the nomination to the District Court and the District Court then authorized such Judge to appoint the, person so nominated, or passed such other order as it thought fit. This is, however, not so now. The Subordinate Judge may himself directly appoint a receiver.
Another passage may be quoted from Woodroffe which is as follows:
The provisions of Order 40, Rule 1, CPC by using the words ''just and convenient'' confer a wide arid elastic power on the Court to appoint a receiver. The court need not be uneasy in appointing a receiver in an appropriate case as no narrow words continue or restrict its discretion. But a free hand in the matter should not lead to arbitrariness. ''Just and convenient'' have reference not to one party or the other, but to what the court feels to be proper in the circumstances, of the case. The words ''just and convenient'' mean that ''it is just practicable and the interests of justice require it.
18. The judges of India are under no obligation to follow the judgments of the superior Courts of England and the U.S.A. when they conflict with statutory provisions contained in the Code of Civil Procedure. In Krishnaswamy v. Thangavelu it has been laid down that there are fice requirements to be satisfied before the Court exercise it jurisdiction for appointment of receiver and these are as follows:
(1) The appointment of a receiver pending a suit is a matter resting in the discretion of the Court.
(2) The Court should not appoint a receiver except upon proof by the Plaintiff that a prima facie case has been made for succeeding in the suit.
(3) Not only must the Plaintiff show a case of adverse and conflicting claims to property, but he must show some emergency or danger or loss demanding immediate action.
(4) The order appointing a receiver shall not be made where it has the effect of depriving a Defendant of a ''de facto'' possession. It will be different where the property is ''in media'', that is in the enjoyment of no one.
(5) The Court shall also look to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame.
These five requirements are embobied in the words ''just and convenient'' in Order 40, Rule 1, CPC and may be described as ''panch sadachar''.
In a suit u/s 92 of the Code of Civil Procedure, the Court may supersede a trustee and appoint, a receiver during the pendency of the suit notwithstanding that the trustee was appointed manager by the Temple Committee and was removable only after regular enquiry.
19. The jurisdiction to appoint a receiver may be exercised either by a Court of first instance or by a Court of Appeal. In order to give the Court jurisdiction there must be a pending suit; and the Court cannot, in so far as its power to appoint a receiver extends only to the better management or custody of any property which is the subject of a suit, appoint, or continue the previous appointment of a receiver when the suit comes to an end by its dismissal; but when a suit is decreed, it was held that there was nothing in the last Code which limited the power of the Court to appoint a receiver after the decree, when this course was necessary or proper. So where in a suit by the widow of a deceased partner to wind up the partnership, on the application of the Plaintiff after decree a receiver was appointed to collect outstanding debts for the purpose of executing the decree, it was objected that Section 503 (last Code) referred only to the appointment of a receiver during the pendency of a suit, it was held that the appointment of a receiver after decree was valid. Order XI, Rule 1(a) now expressly provides that a receiver may be appointed whether before or after decree. As long as the order appointing a receiver remains unreversed and as long as the suit remains a his pendens, the functions of the receiver continue, until he is discharged by order of the Court. Although the dismissal of a suit may operate as a discharge of the receiver appointed in it, yet the Court has ample jurisdiction, without the aid of a pending process, to require accounts from its own officer, to permit parties interested to intervene in the examination of these accounts, to make just allowances to its officer for his administration and to deal with all questions of costs connected with the investigation of his accounts as between him and any parties interested, who may be allowed to appear and take part in it.
Now, relying on the judgment delivered by Sir Ashutosh in 18 C.L.J (supra) and also relying on the above quoted passages of Woodroffe on Receiver it can be safely said that the High Court has got the jurisdiction to appoint receiver.
20. Now, next question arose as to who may be appointed receiver. There also, Woodroffe has given some indications. When a passage from Woodroffe is analysed it will appear that the receiver, who is an Officer of the Court must be an impartial one. Sir Ashutosh in the judgment reported in 18 C.L.J. made the position more clear when their Lordships observed that the appointment of a stranger would mean the imposition of a heavy burden upon the State which is already encumbering and it might also come to dislocate the management. Normally, receiver is appointed not amongst the litigant parties but from outside. In the instant case the learned Court below did not consider the aspect that to protect the interest of all the parties and to protect the interest of the properties or the income from the properties i.e. Binpur haat the receiver should have been appointed when it is the allegations of one of the co-sharers that he is not getting anything out of the haat. It is not disputed that Gaffar Ali Khan, the Plaintiff/Appellant has got 1/13th share inasmuch as Nasir AN Khan had got 13 sons and it is not also disputed that Gaffar Ali Khan is not the son of Nasir Ali Khan.
The learned appellate Court below miscostmed the provisions of Order 40, Rule 1 of the CPC and decided not to appoint any receiver.
It was also observed by the learned appellate Court below that Sattar Ali Khan, the Respondent No. 2(a) is the title holder and is not in possession of the properties and as such no receiver need be appointed.
The learned appellate Court below also misconstrued the position that when it is admitted that the Plaintiff Gaffar Ali Khan is a son of Nasir Ali Khan and is owner of 1/13th share and admittedly he is not getting any share from the Binpur haat income and admittedly he has not been ousted from pssession then in that event to protect the right and interest of all the parties, more so receiver should have been appointed. In this regard I respectfully rely on the judgment delivered by Sir Ashutosh in 18 C.L.J. (Supra) and I find that receiver should have been appointed but since the appellate Court below refused to appoint receiver I don''t think it fit and proper to send the matter back to the lower Court for a hearing once again inasmuch as that will cause unnecessary delay and wastage of time and/or wastage of property.
20. Since Sattar Ali Khan, the Respondent No. 2 is in possession and the Plaintiff out of fear is unable to take possession of the property, he (Sattar Ali Khan) should be appointed receiver and I, also direct him to be appointed as receiver and he will deposit 1/13rd share of income from the tola collected from Binpur haat in Court month by month till the disposal of the appeal being numbered 26 of 2000 pending before the learned Additional District Judge, Midnapore. This deposit will be without prejudice to the rights of the parties. The impugned order being Order 22 dated October 19, 2001 passed in Title Appeal No. 26 of 2000 is set aside with the above directions.
The Respondent No. 2, Sattar Ali Khan will start depositing such amount from the month of May, 2005.
There will be no order as to costs.
Urgent xerox certified copy, if applied for, be given to the parties as expeditiously as possible.
Appeal allowed.
Later on August 5, 2005
Arun Kumar Mitra J.
21. After the delivery of the judgment in the instant matter the learned Counsel for both the parties. Mr. Roychowdhury and Mr. Dasgupta pointed out that there are certain errors in the judgment which have crept in by mistake, though these errors, if corrected, are not going to change the decision taken or given in the matter but since these errors are apparent on the face of the record these need be corrected for the ends of justice.
After careful consideration of the judgment passed by this Court in the instant matter. I also could find some errors of fact. This Court has got the power to correct the errors, if there is any, apparent on the face of the record and accordingly the errors are corrected in the following manner.
22. In page 1 of the judgment by mistake at the very start of the first line it has been written ''This second appeal'' but this will be or should be read as This First Miscellaneous appeal....
23. In page 38 of the judgment, in paragraph 1 (continuing) last line it has been written ''Gaffar Ali Khan is not the son of Nasir Ali Khan''. Actually, Gaffar Ali Khan is the son of Nasir Ali Khan and the statement or the line should be read as ''Gaffar AN Khan is the son of Nasir AM Khan''.
24. In page. 38, para. 3 which starts with the words ''It was also observed is to be deleted and in place and stead of this third paragraph the following paragraph will be inserted.
It was also observed by the learned appellate Court below that ''so it is clear that prima facie it is the Respondent No. 2 who has his right, title and interest in the haat-in-question''.
25. In page 39, 2nd para, which starts with the words ''Since Sattar Ali Khan...above directions'' and the last paragraph of the same page 39 which starts with the words. The Respondent No. 2 both are deleted and in stead and in place thereof following paragraphs will be inserted.
Since admittedly Sattar Ali Khan (presently deceased) was the right, title holder and the Municipal Trade Licence was granted in favour of Sattar Ali Khan and thereafter on the death of Sattar Ali Khan in favour of Respondent Nos. 2(a) to 2(f), who are the heirs of Sattar Ali Khan it can be said the Respondent Nos. 2(a) to 2(f) have been collecting tola from Binpur haat and in that view of the matter I appoint Respondent Nos. 2(a) to 2(f) as joint receivers in respect of Binpur haat.
The joint receivers so appointed will deposit 1/13th share of income from the tola collected from Binpur haat in Court month by month till the disposal of the appeal being numbered 26 of 2000 pending before the learned Additional District Judge, Midnapore. This deposit will be without prejudice to the rights of the parties.
The impugned order being order No. 22 dated October 19, 2001 passed in Title Appeal No. 26 of 2000 is set aside with the above directions.
The joint receivers named above being the Respondent Nos. 2(a) to 2(f) will start depositing such amount from the month of September, 2005.
In the facts and circumstances of the case both the appeals pending before the learned lower appellate Court below should be disposed of expeditiously and expectedly within six months from date.
These corrections will be inserted in the judgment and will be treated as part of the judgment delivered on May 2, 2005.
Urgent xerox certified copy, if applied for, will be given to the parties as expeditiously as possible.
