TMI Blog1977 (11) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... irs and they inherited the said property on the death of Smt. Mahmood Jahan Begum. It is also stated in the plaint that the defendant No. 1 was claiming the said property on the allegations that it was a waqf property under a deed of Waqf dated 9-11-1966 and that he was the Mutwalli thereof. According to the plaintiff-respondent No. 1 the said deed of Waqf was invalid on the ground that it was obtained under undue influence and that the land on which the aforesaid building was constructed being a leasehold land could not be dedicated under the Mohammadan law. The Waqf deed was assailed on sundry other grounds as well. 3. The defence of defendant No. 1 Syed Ahmad Jawwad was that Smt. Mahmood Jahan Begum executed the deed of Waqf out of her own free will on 9-1-1966 and that he was the Mutwalli under the said deed of Waqf. He, therefore, claimed to be in rightful possession as Mutwalli over the Waqf property. He raised some other pleas also in defence which are not relevant at present for the disposal of the appeal. 4. The plaintiff-respondent No. 1 moved the application for appointment of Receiver under Order 40, Rule 1 C.P.C. which was allowed by the then Civil Judge by his o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as that the defendant No. 1 had wrongfully charged ₹ 100/- per month claiming to be his remuneration as Receiver, although the amount fixed by the court was ₹ 75/-per month only. It was pointed out that the defendant No. 1 had charged extra amount of ₹ 100/- per month on the basis that he was entitled to that allowance in his capacity as Mutwalli in addition to the remuneration of ₹ 75/-per month granted to him in his capacity as Receiver by the orders of the trial court as modified by this Court in first appeal. The further allegation was that defendant No. 1 Syed Ahmad Jawwad had not deposited any amount in court in obedience to the order of the trial court and confirmed by this Court, even though there was a clear direction to that effect in the order of appointment of Receiver, and that almost the entire income of the property had been spent by him for his own purposes. 8. That application came up before a division Bench of this Court which by its order dated 12-8-1974 transferred the said application for disposal to the court below. After hearing the parties the court below passed the impugned order, removing Syed Ahmad Jawwad from the office of Rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant No. 1 was not mala fide and this was sufficient justification for the court to approve such expenditure after scrutiny on merits. 10. On the other hand, the contention of the respondents was that the powers of the Receiver in the instant case were confined to those expressly mentioned in the order and hence the appellant No. 1 acted illegally in incurring those expenses and he was not entitled either to incur those expenses on his own accord nor should the court approve of any such expenditure. It was also stated that the Receiver was clearly guilty of misconduct and that he had flagrantly violated the direction of this Court contained in the order of the appointment of Receiver and hence he had fully rendered himself liable to removal. 11. In order to appreciate the controversy it may be noted that the appellant No. 1 was a Mutwalli of the alleged Waqf and at a later stage of the present dispute he himself had been appointed a Receiver of the property in suit. We have already extracted the operative portion of the order of the Civil Judge dated 20-9-1973 in which about five functions of the Receiver were expressly set out. They included realisation of rent from all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by a court because eventually every case must be decided on its own facts and therefore whatever inferences are arrived at with regard to the powers and functions of the Receiver appointed in the present case they naturally flow from the facts and circumstances of this case alone. A look at the various orders passed by this Court according to the sequence of events leaves no room for doubt that the Receiver was appointed in order not only to perform the five functions specified at the conclusion of the order but since ultimately the person appointed as Receiver was also the Mutwalli of the alleged Waqf he was permitted to become Receiver by this Court on the basis that he would also manage the property in dispute as Receiver. It is not disputed that the property of the alleged Waqf consisted only of the house in dispute and the realisation of its rental income, its repairs, incurring expenses on that account and maintenance of accounts etc. were all entrusted to the Receiver. This in substance amounted to investing the Receiver with the management of the property. It is true that Order 40, Rule 1 C.P. C. indicates the various functions and powers which may be conferred on a Rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which he derives his appointment, his possession is exclusively the possession of the Court, the property being regarded as in the custody of the law, in gremio legis, for the benefit of whoever may be ultimately determined to be entitled thereto. In Seshayya v. Narasimhacharyulu AIR1955Mad252 the legal consequences flowing from the appointment of a person as Receiver under Order 40 Rule 1 were summed up as under: A receiver may be asked to de various things by a court. There may be cases, where the receiver does every conceivable thing, and there may be cases where he does only a very few things. But, in every case, where he is appointed as general receiver under Order 40 Rule 1, he is a receiver and officer of court in respect of the 'property', and when possession is passed to him either physically or legally, by operation of law, as where the party himself is made receiver, it is obvious that the possession is no longer with the original party. If the origin of the concept of Receiver is analysed it will be found that the functions of Manager and those of Receiver were closely inter-twined. In Woodroffe's Law Relating to Receivers , Sixth Edition, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' would necessarily include such management, of the property and performing such multifarious duties as the exigencies of the situation may require. Sri Varma, learned counsel for the appellants, submitted that the duties relating to the repairs etc. of the property in question were distinct functions of the appellant No. 1 as Mutwalli and should be considered separately from the specific function assigned to him by the court as stated in its order of appointment. The contention is untenable. In a situation like the one before us it appears to us that substantially those functions which were formerly exercisable by Syed Ahmad Jawwad as Mutwalli now merged into the comprehensive role which devolved on him in the capacity of a Receiver. It would also not be conducive to justice to hold that when a property became 'custodia legis', then discretion should still be left to any other person or authority for meddling or dealing with the property in a manner which may not be in conformity with what the court intended while passing an order for the appointment of a Receiver. It, therefore, follows that even where an order of appointment of Receiver is not exhaustive and explicit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e controversy in the present case is concerned. In the Calcutta case one of their Lordships, namely Biswas, J. remarked that it was the duty of the Mutwalli to defend the waqf estate against hostile claims and a mere statement that he asked for funds from the Receiver but did not obtain any, was not sufficient to exonerate him. Obviously their Lordships of the Calcutta High Court had no occasion to discuss the duties and functions of a Mutawalli who was also appointed a Receiver. Thus, on the facts of the present case we are satisfied that the general function of managing the property had to be performed by the Mutawalli Receiver and we must repel the contention that the duties of the Receiver as stated in the order were not intended to embrace these functions. But as we have already observed, since they were not specifically stated in the order it was the duty of the Receiver to ask for leave of the court before incurring any expenditure in the discharge of such functions. We are also of the opinion that since in substance the effect of the order of appointment of Receiver was that the duties of Syed Ahmad Jawwad as Mutawalli merged in those of the Receiver he was only entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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