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Tarachand Pirchand Vs. Lakshman Bhavani - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1877)ILR1Bom91
AppellantTarachand Pirchand
RespondentLakshman Bhavani
Excerpt:
.....of case would depend upon exercise of discretion by supreme court under article 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. - ' if, being a mirasdar's with rights as such, bhagu, concealing this circumstance, induced lakshman to take up the land and relieve him from the burden of the assessment, he was bound to make good the apparent title which he conferred on lakshman, and so was any one else who came in, like the plaintiff here, by a title created subsequently to the transfer to lakshman......the ordinary presumption operates against him. under the hindu law there must, to constitute a complete title, and therefore a complete transfer of title, be juris et scisince conjunctio according to sir t. strange; but under that law, too, a title may be inferred from possession, so that he who hands over possession gives room for this inference to arise (1 str. h.l. 31; 2 id. 201; coleb. dig. 131 cxiii). the nature of the possession granted, or rather of the right in virtue of which the physical detention of the property is transferred is to be sought in the accompanying agreement, or rather expression of will, on the part of the grantor. here he hands over possession and gives in a razinama in favour of lakshman, not limited by any qualification whatever. it is argued that the.....
Judgment:

West, J.

1. Haibati's son Bhagu, it is clear, passed to the Mamlatdar a razinama of the land in dispute in favour of the defendant Lakshman. Tarachand, as subsequent purchaser of Haibati's rights, now seeks to eject Lakshman, asserting that, as the land is miras, the resignation by Bhagu conferred no more than a precarious right of occupation terminable at the will of Haibati or of the successor to Haibati's interest. It is plain, however, that Bhagu gave up possession of the land in dispute to Lakshman. Lakshman's possession is prima facie evidence of complete ownership throwing the burden, according to Section 110 of the Indian Evidence Act, of showing that it is held on some inferior title, upon him who seeks to dislodge the possessor. Under the English Common Law 'if the defendant pleads livery and seizin from the plaintiff, the plaintiff cannot reply that the livery was conditional without showing the deed, inasmuch as the plaintiff is estopped to defeat his own livery by a naked averment and parol evidence only': 1 Gilb. on Evidence, 86. The creation of a greater interest than a lease of three years, except by a writing, was afterwards prevented by the Statute of Frauds, and hence it comes that the formal delivery of possession does not now in England raise the natural presumption which formerly attended it; but the Statute of Frauds is not in operation amongst Hindus at Nasik and he who delivers possession there, without evidence of anything more, places himself in such a position that the ordinary presumption operates against him. Under the Hindu law there must, to constitute a complete title, and therefore a complete transfer of title, be juris et scisince conjunctio according to Sir T. Strange; but under that law, too, a title may be inferred from possession, so that he who hands over possession gives room for this inference to arise (1 Str. H.L. 31; 2 Id. 201; Coleb. Dig. 131 CXIII). The nature of the possession granted, or rather of the right in virtue of which the physical detention of the property is transferred is to be sought in the accompanying agreement, or rather expression of will, on the part of the grantor. Here he hands over possession and gives in a razinama in favour of Lakshman, not limited by any qualification whatever. It is argued that the Mirasdar's right to resume possession may have been reserved; but to this, if to any case, the maxim applies expressa nocent, non expressa non nocent. If Bhagu intended to reserve any portion of his right, he should have said so. In Church v. Brown (15 Ves. 258, See p. 268) Lord Eldon said: 'The safest rule for property is that a person shall be taken to grant the interest in an estate, which he proposes to convey or the lease he proposes to make; and that nothing which flows out of that interest, as an incident, is to be done away by loose expression, to be construed by facts more loose; that it is upon the party, who has forborne to insert a covenant for his own benefit, to show his title to it.' If, being a Mirasdar's with rights as such, Bhagu, concealing this circumstance, induced Lakshman to take up the land and relieve him from the burden of the assessment, he was bound to make good the apparent title which he conferred on Lakshman, and so was any one else who came in, like the plaintiff here, by a title created subsequently to the transfer to Lakshman. The transfer to Lakshman, therefore, seems to have been complete, and the rights of Bhagu wholly extinguished. For these reasons we confirm the decree of the Joint Judge with costs.


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