Macpherson, J.:— This is an application for the appointment of a receiver to the property of the shrine of Tarakeswar. The late Mohunt died on the 10th or 11th March 1893, and the suit in connection with which this application is made was brought on the 21st March following to establish the Plaintiff's fight of succession.
The present application for receivership was made on the 11th September. It was preceded by an earlier application which was rejected on the 7th April, and the grounds on which the present application is made, differ from those on which the previous one was made. This application was heard in part before another Judge during the vacation, but could not be completed; and there has been a good deal of discussion as to the reasons which have led to no action being since taken. It appears that there was a suit in the Hooghly Court brought by the Defendant for probate of a Will of the late Mohunt, which he had propounded, and all the records of this suit were sent to Hooghly in connection with that case and have only been returned during the last few days. I am not prepared to say that the omission to prosecute the application was due to any laches on the part of the Plaintiff, and it may be that without the records and during the pendency of the probate suit, it might have been difficult to bring it on earlier. I am further induced to think it was not owing to their laches, by the circumstance that when the Plaintiff in January last asked me to send for the records in order that this case might be expedited, the application was opposed by the Defendant.
A good deal has been made of the interval which has elapsed, and it was pressed for the Defendant that nothing had since happened to justify them in proceeding with the application, and that the terms of the injunction served on the Defendant had been strictly complied with, Mr. Woodroffe, in answer to this argument, wished to read certain affidavits affirmed on the 2nd October last; but as the Defendant did not admit having received copies of those affidavits or notice that they would be made use of, I thought it better to deal with this application on the materials which were brought forward in September last.
The Will, which the Defendant propounded, has since been found to be a forgery. This does not dispose of the suit which is pending in this Court, and the most that could be said is, that it deprives the Defendant of one of the titles on which he may possibly rely. There is of course the further question whether the Defendant is a proper person to be left in charge of the property pending this litigation.
The suit is contested substantially on two grounds, first, that there is no jurisdiction in this Court, and secondly, that the Plaintiff has no title. The question of jurisdiction which depends on there being some property within the jurisdiction of the Court is, of course, one which cannot now be determined. I think I must deal with this matter as if this Court had the jurisdiction, which it has indeed exercised in connection with this suit up to the present time.
As to the Plaintiff's title, it is urged that the plaint, as I understood the argument, does not disclose a good or sufficient title, that it is not an honest plaint and not a plaint on which the Plaintiff would be likely to succeed.
I think it is unnecessary and it would be improper to subject it to any minute criticism, and that it is not necessary to Bay more than that it does seem to me to disclose a title, which, if the Plaintiff can establish it, would be a good one.
I think also that the Plaintiff has, on the materials before me made out a fair primâ facie case. He is admittedly the chela of the deceased Mohunt. It was admitted by the deceased Mohunt in a document on which the Defendant relies that he was the senior chela; and it appears from that document and other undisputed facts that he did not as Mohunt for about three years, during which time the late Mohunt was undergoing a term of imprisonment.
Whether the Plaintiff has lost his position as chela, whether he was removed by the late Mohunt and whether there could be any renunciation, are all questions to be determined in the future, and I think I need not do more than now consider whether he has made out a case which might give him a fair prospect of success.
As to the circumstances under which it is said to be necessary to appoint a receiver, it is shown, and indeed it is undisputed, that in August last the Defendant removed from the muth at Tarakeswar a very large amount of property consisting of gold and silver articles and a considerable sum of money.
The parties, of course, differ as to the object with which this property was removed. I can only say I am not prepared on the affidavits to accept the Defendant's version, and I think the mere circumstance that such a large amount of property was removed, and under circumstances which might fairly give rise to suspicion, during the pendency of a suit in which the question of title to that property would be determined, is in itself a sufficient ground for the appointment of a Receiver. A further question is raised as to whether all the property claimed in the plaint belonged to the shrine or was the personal or acquired property of the late Mohunt. This question also cannot be determined at present; but it is of the less importance now as the title which the Defendant set up to it under the Will, and by which he possibly might have held it although his claim to the mohuntship failed, has disappeared.
It has been somewhat strongly pressed that as there is a possibility of the suit coming on for trial at an early date, it would be inconvenient to appoint a Receiver.
I think it is difficult to say when the case will come on, and I think that under the circumstances to which I have referred, it is desirable that an arrangement for the protection of the property should be made at once. I order therefore that a Receiver be appointed for the custody of the immoveable property belonging to the shrine, and to collect and receive the offerings. He can make what arrangements he likes.
The conduct of the daily sheba is not to be interfered with, and the Receiver is to pay for these out of the offerings he receives.
The Receiver is to be put in possession of the moveable property belonging to the shrine.
There will be liberty reserved to the Plaintiff to move - to extend the rule on fresh materials if he can show that the rents are not being realised by the Defendant.
The question of who is to be Receiver can be settled between you or you can come to the Court again if you do not agree.
The question of the costs of this application is reserved.
Mr. U.L Bose, Attorney for the Plaintiff.
Messrs Sen & Co., Attorneys for the Defendant.
S.R.D