Sadasiva Aiyar, J. — These are appeals against the order of the Subordinate Judge of Kumbakonam appointing a receiver for the lands belonging to Pasupatheswara Swami Temple near Kumbakonam. The plaintiffs and defendants Nos. 1 to 3 are the four hereditary trustees of this temple. The defendants Nos. 4, 5 and 6 have each executed a separate registered rent deed in favour of the plaintiff and the defendants 1 to 3 jointly and each of the former has thus become the sole lessee of one set of lands belonging to the temple. The plaintiff alleges in his plaint that these leases were really taken for the benefit of the defendants Nos. 1 to 3 respectively, by their creatures Defendants Nos. 4, 5 and 6, that he did not consent to accept the rent deeds which stand in his name also, that defendants Nos. 4, 5 and 6 are persons of no status or property and that the leases should be avoided, as they were given by the defendants 1 to 3 in breach of trust. The leases provided for payment of instalments of paddy rent in the month of November (after kuruvai harvest) and in the months between January and April (after Samba harvest) a small sum in cash being also payable for the rent of punja lands.

As regards the rent payable between January and April 1919 under these rent deeds, the defendants Nos. 4, 5 and 6 have made default to the following extent respectively, according to the tenor of the lease deeds. The 4th defendant has defaulted to pay about Rs. 4714 of the rent due by him, the 5th defendant has made default to the extent of about Rs. 5554. 6th defendant has made default to the extent of about Rs. 5052. The rent deeds provide that if default is so made, the temple can enter into possession without reference to the term of 7 years (ending on the 30th January 1925) mentioned in the rent deeds. The plaintiff had appealed for the appointment of a receiver in January 1919 itself. Mr. C. V. Viswanatha Sastriar the then Subordinate Judge passed an order on that petition on the 4th February 1919. Paragraph 9 of the order is as follows:—“I therefore order defendants 4, 5 and 6 to pay out of the rents due by them” (to the trustees) “under their respective lease deeds 450 kalams each to defendants 1, 2 and 3. The rest of the rents due to them” (that is the trustees) “will have to be paid by them into Court. The paddy rent due by them will be converted into money, the paddy being sold by them (after giving proper notice to plaintiff) to the person who offers the highest price. The money rent due by them will also be paid into Court. In case the defendants 4, 5 and 6 do not obey, they render themselves liable to be removed from possession and a receiver will have to be appointed in respect of the properties”. As I said, this order was passed on the 4th February 1919. The defendants 4, 5 and 6 have committed the further defaults in making payments in accordance with this order, to the extent of fifteen thousand and odd rupees, as already stated. So a further application was made by the plaintiff for the appointment of a receiver and Mr. Viswanatha Sastriar's successor passed the order dated 7th October 1919 against which these appeals have been filed. No doubt, as the Subordinate Judge says “the matter has to be decided on facts made out prima facie and not by entering into details at this stage. The defendants 4 to 6 have not acted up to the Order of February 1919 in which they are warned that a receiver would be appointed and that they would be ejected if they did not obey the orders. Their excuse for disobedience is that they hoped against hope that they would be able to obtain from the Samba harvest sufficient paddy to pay the rents due by them, according to the rent deeds executed by them but they found that they were able to realise only much less and that according to the custom in the Tanjore District, they were entitled to call upon the temple to harvest the crops which were below the usual yeild, to give the lessees some portion and to take the balance as fully satisfying the temple's claims for rent of that year. Treating the matter on the broad facts made out prima facie, I am not inclined to hold that the defendants 4, 5 and 6 have put forward a sufficient excuse for disobeying the order or February 1919. On the covenants in the rent deeds, they can be ejected and that temple can enter upon the lands in their possession. Having regard to these facts, the Subordinate Judge thought that the interests of the temple trust were being jeopardised, by the quarrels “between the trustees and by the lessees taking advantage of such quarrels to withhold the rents (a very large sum) due by them to the trust. He therefore considered (to use the language of O.40, R. 1 in Civil Prcedure Code that it was just and convenient’ to have a receiver appointed, so that the larger portion of the extensive income of the temple may be directed and turned into channels, so as to be useful and beneficial to the temple, namely for the discharge of the debts, etc.’ As regards the questions, (1) whether the defendants 1 to 3 are the real lessees themselves, (2) whether the plaintiff consented to the lease, as alleged by the defendants and (3) whether the leases were granted for much lower rents than are reasonable, all these questions cannot be answered even provisionally, at this stage on the records, as they stand. But on the broad ground that clearly the interests of the trust are anyhow being jeopardised, I think the appointment of a receiver is desirable, so long as the defendants 4 to 6 are trying to withhold the rents due by them to the temple, assuming in favour of the defendants, that the rent deeds executed by therefore valid. The grounds urged by them for withholding paymennt of the large balance of rents due by them being prima facie of a very weak character, the only modifications in the lower Court's order which I am therefore inclined to make is that if the defendants 4, 5 and 6 give sufficient security for the arrears due by them respectively, that is, (approximately) Rs. 4,714, Rs. 5,554 and Rs. 5,052 and also for the kuruvai rents due by them on the 30th November, namely (approximately of the value of Rs. 1,050, Rs. 1,625, and Rs. 1,225 respectively) within one week of the date of the receipt of the order herein to the satisfaction of the Subordinate Judge of Kumbakonam, the order appointing a receiver shall remain in suspense. The Subordinate Judge shall have power to extend the time on good grounds, for a further period not exceeding one week. If they pay the amounts of all these rents within the 31st January 1920 into Court, the order appointing a receiver will stand cancelled. The security to be given by each of the defendants 4, 5 and 6 will be separate and the suspension or cancellation of the receiver order will also take effect separately, in favour of the particular defendant, who gives security and as regards the respective lands in his possession separately.

As regards O. 40, R. 1 (2), Civil Procedure Code, the Court has full power to put the receiver appointed by it in possession of properties, removing any of the parties to the suit from such possession. A party has always the right to “remove” himself from possession, even if O. 40, R. 1 (2) applies to a case where possession is not with a 3rd party. O. 40, R. 1 (2) prevents the Court from ejecting a person not a party to the suit, unless some one or all of the parties to the suit have such a right. This was held by myself and Tyabji, J., in A.A.O No. 8 of 1912. That plaintiff, even if he succeeds can only get joint possession with defendants 1, 2 and 3 and does not pray for ejecting them has in my opinion nothing to do with the power of the Court to appoint a receiver to take possession of the properties on behalf of all the parties, or a single party who might be entitled to possession in the result. See Venkata Rajagopalu Surya Row v. Basivi Reddi(1), where Oldfield, J. and myself held that at the instance of a simple mortgage decree-holder, who was not entitled to possession at all, a receiver can be appointed in an appropriate case dispossessing the owner.

The defendants 4 to 6 shall not remove the paddy harvested from the lands included in their respective leases, from the thrashing floor, before they furnish security. The application to appoint the defendants 1 to 3 themselves as receivers is in any event rejected and their appeal (A. A. O. No. 291 of 1919) is dismissed. The Lower Court's order as to costs will stand. The parties will bear their respective costs in this Court. The cases are adjourned for further orders for two weeks for the Lower Court to report if security has been furnished.

Spencer, J.—Mr. K. Srinivasa Aiyangar who appeared for the defendants 5 and 6 who are the appellants in appeal against order No. 290 of 1919 conceded that he had no objection to the appointment of a receiver for the collection of rents provided that the leases under which his claimants are in occupation of certain portions of the suit properly were not annulled pending the result of the suit and provided that actual possession was not taken by the receiver. It is a curious thing that in this suit in which the plaintiff sued for having certain lease deeds declared to be nominal transactions not binding on the temple and for getting them cancelled, he (the plaintiff) should now invoke the authority of those very same lease deeds, which in his plaint he impugned as collusive and invalid and should seek to enforce that condition of the leases which provides that on failure to pay the rent by the due date, the lessors may enter upon the lands without taking the permission of the lessees and may regard the lease deed as cancelled. The plaintiff cannot be allowed to blow hot and cold. If the lease deeds are valid, then the suit fails and must be dismissed and the application for the appointment of a receiver must go with it. If the lease deeds are invalid, then the plaintiff must show by what right he claims to enter into the actual possession of the temple lands, in opposition to the will of the majority of the trustees, without notice and without bringing a suit for ejectment of the persons in present occupation. By the appointment of a receiver a court is not authorised to remove from the possession or custody of property any person whom any party to the suit has not a present right to remove (See O. 40, R 1, Cl. 2, Civil Procedure Code. The words “any person” are sufficiently wide and in my opinion should not be confined to persons who are not parties to the suit, as was held in an unreported case of this Court (A. A. O. No. 8 of 1912). But even if this is implied by the words, I consider that it would not be “just and convenient” that a plaintiff should by a side wind, so to speak, through the means of an interlocutory application get more than he could get, if he finally succeeded in this suit. The power to enter upon the land by the receiver is one that would have to obtained by a decree in a suit for ejectment against the lessees of defendants 1 to 3, unless, the lessees agreed to surrender possession voluntarily.

The plaintiff and defendants 1 to 3 are hereditary trustees. One trustee has no right to eject another trustee at his pleasure. He must with leave of the Advocate General bring a suit for removing the other trustees or for framing a scheme for management of the trust. Till this is done, he has no present right to remove them from the possession of the suit properties. The present suit is only for a declaration of the plaintiff's title to joint possession with defendant 1 to 3. He cannot be given a relief that would be inconsistent with that prayer in paragraph 22 (b) of his plaint. The receiver when appointed would be invested with such powers, as now exist in the parties and he cannot be given any higher rights than the parties at the present time possess against their tenants. The term of the present lease deeds has not expired and it would require the concurrence of the majority of the trustees to alter them. Such objections cannot be overcome by the mere device of making the tenants parties to this declaratory suit. I am of opinion that in the present state of things the receiver should not be put in actual possession of the property.

The difficulties which arose owing to the alleged failure of crops have led to the present application of the appointment of a receiver owing to defendants 4 to 6 falling into arrears with their rent. In the previous proceedings the former Subordinate Judge put defendants 4 to 6 on terms and ordered that if the defendants did not pay certain sums into Court, a receiver would have to be appointed in respect of the properties. As they did not appeal against the order and as they have made default, owing as they allege to failure of crops, they cannot entirely be excused from the consequences of their default, and therefore I am prepared to agree with my learned brother that the order of the Lower Court as to the appointment of a receiver may be upheld, subject to the condition stated in his judgment, that if the parties give proper security within a week, that order will stand vacated. But I think that if the condition is unfulfilled and a receiver is appointed he should not be allowed to disturb the actual possession of defendants 4 to 6, nor does the lower Courts' judgments appealed against provide for doing so. I agree that the appeal of defendants 1 to 3 to be themselves appointed receivers should be dismissed.

These appeals coming on for final hearing this day, after receipt of the reports called from the Subordinate Judge of Kumbakonam, in pursuance of the order contained in the above judgment and of the order of this Court herein dated 2nd December 1919 suspending till 31st January 1920 the order of’ the Court of the Subordinate Judge of Kumbakonam, dated 7th October 1919, in I. A. No. 491 of 1919, in O. S. No. 9 of 1919 appointing a receiver only in respect of the land leased to the appellants in A. A. O. No. 290 of 1919 (Defendants Nos. 5 and 6 in O. S. No. 9 of 1919) and not suspending the said order of the Lower Court as regards the lands leased to the appellant in A.A.O No. 293 of 1919 (4th defendant in O.S No. 9 of 1919) and calling for a report from the Subordinate Judge of Kumbakonam to be submitted within 7th February 1920, as to whether all or any of the suit defendants Nos. 4, 5 and 6 have paid the amounts the arrears of rents due by them mentioned in the above judgment, the Court delivered the following

JUDGMENT

By our order of 27th October 1919, it was not intended to decide that the lessees are liable only for the amounts mentioned approximately therein, or that they may not be liable for interest. Nothing has been decided on the question of mutual liabilities or rights.

As the amounts mentioned in the order have been deposited by the defendants Nos. 4, 5 and 6, the order appointing a receiver is set aside, as regards the lands in the possession of these defendants alone.

There will be no order as to costs in A.A.O Nos. 290 and 291 of 1919. The plaintiff will get his costs in A.A.O No. 293 of 1919 from appellant therein.

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C.KDecree varie.