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Somchand Bhikhabhai Vs. Chhaganlal Khubchand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Application No. 222 of 1910
Judge
Reported in(1911)13BOMLR207
AppellantSomchand Bhikhabhai
RespondentChhaganlal Khubchand
Excerpt:
.....to collector's illness--consent invalid.;in a suit filed under the provisions of section 92 of the civil procedure code 1908, the plaintiffs applied for the consent of the collector who was authorised by the local government in that behalf. the collector having been ill, the consent was signed by the assistant collector who was performing his duties:--;held, that the consent was not valid. - 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..........the duties which are imposed upon collectors by government resolution under section 93 of the code are duties of a very special nature, the discharge of which often requires serious consideration, and we have not been referred to any authority to justify the argument that where these duties are imposed upon the collector they may be discharged by his subordinate. objection was taken on behalf of the defendants to the suit as not having been authorized by the proper officer. the district judge, however, came to the conclusion that because mr. wiles, as assistant collector, was discharging the functions of the collector under the provisions of section 11 of the land revenue code in revenue matters, he was, therefore, entitled to discharge his functions with reference to suits filed.....
Judgment:

Basil Scott, Kt., C.J.

1. This suit was filed in the District Court of Broach, ostensibly under the provisions of Section 92 of the Civil Pro cedure Code, by certain persons interested in a certain charity property situate within the jurisdiction of that Court. Being a suit in the mofussil the consent of the Advocate-General was not necessary provided the consent of a Collector, or other officer of the Local Government, authorized previously by the Local Government, had been obtained.

2. The plaint bears the endorsement: 'Permission is granted under Sections 92, 93 of the Civil Procedure Code. G. Wiles, for Collector.'

3. Now the person authorized by Government Resolution to Consent to the institution of suits in the District of Broach is the Collector; and Mr. Wiles, who is the Assistant Collector, appears to have made the endorsement on the assumption that the Collector being ill he was entitled to discharge all his . functions.

4. The duties which are imposed upon Collectors by Government Resolution under Section 93 of the Code are duties of a very special nature, the discharge of which often requires serious consideration, and we have not been referred to any authority to justify the argument that where these duties are imposed upon the Collector they may be discharged by his subordinate. Objection was taken on behalf of the defendants to the suit as not having been authorized by the proper officer. The District Judge, however, came to the conclusion that because Mr. Wiles, as Assistant Collector, was discharging the functions of the Collector under the provisions of Section 11 of the Land Revenue Code in revenue matters, he was, therefore, entitled to discharge his functions with reference to suits filed under Section 92 of the Civil Procedure Code.

5. In our opinion this is an erroneous view, and the learned judge, in entertaining the suit in face of the objection, acted illegally in the exercise of his jurisdiction.

6. We accordingly order the Judge to reject the plaint under Rule 11, Order VII, of the Civil Procedure Code. The opponents must pay the costs of this application.


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