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Keshavlal Hiralal Vs. Mayabhai Premchand - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMumbai
Decided On
Case NumberFirst Appeal No. 111 of 1905
Judge
Reported in(1907)9BOMLR204
AppellantKeshavlal Hiralal
RespondentMayabhai Premchand
Excerpt:
.....1877 applied to the case, there was no good faith on the part of the plaintiff in regard to the pauper proceedings. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several companies - he left behind his daughters, s and j - he was suffering from various diseases including some neurological ones - for his treatment, he used to frequently visit united states of america accompanied by his wife and daughter - by reason of a will, he is said to have bequeathed 50% of his property to s and 50% to j in a letter addressed to the 1st respondent, viz., s, he is purported to have recorded that the he had given all his shares to her - will was not only unnatural but was surrounded by a large..........the respondents has attempted to distinguish that case from this by relying on the decision of the privy council in skinner v. orde (1879) l.r. 6 i.a. 156. the observation of the privy council on which reliance is placed has reference to a state of facts different from those in the case now before us or to the case of keshav ramchandra v. krishnarao venkatesh (1895) i.l.r. 20 bom. 508. as pointed out in the judgment of their lordships the application there to be allowed to sue as a pauper contained all the materials of a plaint. while the enquiry into the applicant's pauperism was proceeding, he withdrew his prayer to be allowed to sue in forma pauperis and paid the court-fees leviable as on a plaint. the privy council, under those circumstances, held that the application, which was.....
Judgment:

Chandavarkar, J.

1. We think that this suit must be held to be time-barred having regard to the decision of this Court in Keshav Iiamchandra v. Krishnarao Venkatesh (1895) I.L.R. 20 Bom. 508.

2. The learned Advocate-General for the respondents has attempted to distinguish that case from this by relying on the decision of the Privy Council in Skinner v. Orde (1879) L.R. 6 I.A. 156. The observation of the Privy Council on which reliance is placed has reference to a state of facts different from those in the case now before us or to the case of Keshav Ramchandra v. Krishnarao Venkatesh (1895) I.L.R. 20 Bom. 508. As pointed out in the judgment of their Lordships the application there to be allowed to sue as a pauper contained all the materials of a plaint. While the enquiry into the applicant's pauperism was proceeding, he withdrew his prayer to be allowed to sue in forma pauperis and paid the Court-fees leviable as on a plaint. The Privy Council, under those circumstances, held that the application, which was pending and had never been disposed of, should be treated as a plaint filed on the date of its presentation. The decision proceeded substantially upon the ground that the application for leave to sue in forma pauperis, being alive when the applicant paid the Court-fee, became a plaint as from the date of its filing. That ground has no application to the present case, where the petition for leave to sue as a pauper was heard on the merits and dismissed. In such a case there was no application alive at the date of the payment of the Court-fee on which such payment could operate so as to give it the retrospective effect of a plaint.

3. That is the essential difference between the two eases. We think that the present case is on all fours with that in Kashav Ramchandra v. Krishnarao Venkatesh I L R (1895) 20 Bom. 508 by which we are bound. It is to be observed that that decision has been followed by the Calcutta and Allahabad High Courts.

4. But it is argued for the respondent that he is entitled to deduction of time under Section 14 of the Limitation Act. It is doubtful whether that section can apply to a case like the present. The Court before whom the question of pauperism of the respondent was tried, cannot be said, without straining the meaning of the section, to have been unable to entertain that civil proceeding, because of defect of jurisdiction or other cause of a like nature. But even supposing the section did apply, we are unable to hold that there was good faith on the part of the plaintiff in regard to the proceeding. The Subordinate Judge dismissed the application on the ground that the plaintiff was not a pauper and that he had concealed from the Court material facts as to his property. In fact the respondent in prosecuting the proceeding attempted to mislead the Court. His conduct negatives all suggestion of good faith.

5. We reverse the decree and dismiss the suit.

6. The appellant should have the costs of this appeal from the respondent. We make no order as to the costs in the lower Court.


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