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Shri Vishwambhar Pandit Alias Nana Maharaj Vs. Vasudev Pandit Alias Baba Maharaj - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom37
AppellantShri Vishwambhar Pandit Alias Nana Maharaj
RespondentVasudev Pandit Alias Baba Maharaj
Excerpt:
.....142 of the constitution. said powers under article 142 of constitution is not available to the high court. hence no protection can be granted by high court even in cases relating to admissions. - , page 300.) the district judge has practically, by the view he has taken of the requirements of the law, failed to exercise the jurisdiction vested is him......the discretion of the court or judge, but upon the proof of the particular case out of which such power arises.'2. if any discretion is given by section 9 of the regulation as to the exercise of the power thereby conferred, it is not that of exercising the power or not at pleasure when the occasion arises, but only of determining whether the occasion has arisen in the. particular case. (see maxwell on statutes, 2nd ed., page 300.) the district judge has practically, by the view he has taken of the requirements of the law, failed to exercise the jurisdiction vested is him. when the application was made, he should have considered (1) whether the right of succession to the property in question was disputed between two or more claimants, and (2) whether none of them had taken possession. if.....
Judgment:

Birdwood, J.

1. We are of opinion that the District Judge has wrongly held in this case that the words of Section 9 of Regulation Till of, 1827 are not directory or mandatory, but permissive. The use of the words 'may appoint' in this section does not imply that the District Court has any discretion in a proper case to appoint or not to appoint an administrator. The principles to be applied to the construction of the section is that laid down by the Curt of Common Pleas in MacDougall v. Paterson 11 C.B. 755 773 where it was said that 'when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized, to exercise the authority when the case arises, and its exercise is duly applied for by a party interested, and having the right to make the application; and that the exercise of such power depends, not upon the discretion of the Court or Judge, but upon the proof of the particular case out of which such power arises.'

2. If any discretion is given by Section 9 of the Regulation as to the exercise of the power thereby conferred, it is not that of exercising the power or not at pleasure when the occasion arises, but only of determining whether the occasion has arisen in the. particular case. (See Maxwell on Statutes, 2nd ed., page 300.) The District Judge has practically, by the view he has taken of the requirements of the law, failed to exercise the jurisdiction vested is him. When the application was made, he should have considered (1) whether the right of succession to the property in question was disputed between two or more claimants, and (2) whether none of them had taken possession. If he found both these points in the affirmative, he should have proceeded to appoint an administrator. We reverse his order and return the cane that the application may be disposed of according to law.

3. Costs of this application to be dealt with by,the District Judge when he finally disposes of the case.


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