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Trimbak Bawa Alias Bhau Bawa Vs. Narayan Bawa - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1883)ILR7Bom188
AppellantTrimbak Bawa Alias Bhau Bawa
RespondentNarayan Bawa
Excerpt:
temple endowments - management--execution sale--limitation act xv of 1877, schedule ii, article 12. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in rejecting arbitration petition filed by appellant on ground of lack of jurisdiction. .....first defendant, to enforce his claim to one-third share of the management of the lands. in this suit vithoba obtained a decree that he should have the exclusive management every third year, but he was ordered to pay costs. to enforce payment of his costs, hari bawa, in execution of the above decree, attached the one-third share of vithoba in the management of the lands, which was sold at auction to a marwadi in january, 1870, for 160 rupees, and afterwards re-sold to the second defendant, trimbak, another son of hari, in may, 1870, for 200 rupees. the 160 rupees were more than sufficient to pay the costs, and the balance was paid to vithoba. the object of the present suit, filed in august, 1879, by vithoba's son, is to recover his share of the management of the land as against trimbak.....
Judgment:

Charles Sargent, Kt., C.J.

1. It is not in dispute between the parties that the lands in question were originally granted in 1815 to one Baloba Bawa and his descendants for the purpose of maintaining the worship of the God (Shri Vithoba Dev) of a temple. In 1866 a suit was brought by plaintiff's father, Vithoba, one of Baloba's sons, against Hari (another son of Baloba) and his son, the first defendant, to enforce his claim to one-third share of the management of the lands. In this suit Vithoba obtained a decree that he should have the exclusive management every third year, but he was ordered to pay costs. To enforce payment of his costs, Hari Bawa, in execution of the above decree, attached the one-third share of Vithoba in the management of the lands, which was sold at auction to a Marwadi in January, 1870, for 160 rupees, and afterwards re-sold to the second defendant, Trimbak, another son of Hari, in May, 1870, for 200 rupees. The 160 rupees were more than sufficient to pay the costs, and the balance was paid to Vithoba. The object of the present suit, filed in August, 1879, by Vithoba's son, is to recover his share of the management of the land as against Trimbak and Ganu, another son of Hari, who claims the exclusive management. Now, it was scarcely disputed that the management of the property of the temple, in other words the 'trust' reposed in the judgment-debtor, could not be attached and sold in execution of a decree against him. But it was argued that as the sale to the Marwadi in January, 1870, was not set aside within a year, the right to treat it as void by the plaintiff was barred by Clause 12 of Act XV of 1877. Whether Vithoba himself could have got himself re-instated in the management without bringing a suit to set aside the sale within a year from the order confirming it, it is not necessary to decide, as we think that in endowments of this nature, where the founder has vested in a certain family the management of his endowment, each member of such family succeeds to the management, to use technical language, per formam doni, and that, therefore, on Vithoba's death the plaintiff's right to succeed to the management in this case was quite unaffected by any proceedings in execution against Vithoba during his life. The decree must, therefore, be confirmed with, costs of appeal on appellant.


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