Skip to content


Khando Narayan Kulkarni Vs. Apaji Sadashiv Kulkarni - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1878)ILR2Bom370
AppellantKhando Narayan Kulkarni
RespondentApaji Sadashiv Kulkarni
Excerpt:
bombay hereditary offices act iii of 1874 - jurisdiction--suit for declaration of right to officiate as sole representative of a branch of a vatandar family. - .....by bombay act iii of 1874. in special appeal it is urged that the jurisdiction of the ordinary civil courts over such cases, having been previously established and exercised in numerous decisions, could not be withdrawn except by an express enactment which the vatandars act does not contain. though the collector may have full power, it is argued, to determine who shall officiate and even who shall be recognized as amongst the class of those capable of officiating, yet, as to the abstract rights of the sharers inter se, the civil courts may pronounce still as they did formerly before the passing of the new act.2. the plaintiff claims a right to perform the duties of an hereditary office to the exclusion of the defendant. such duties, section 24 of the vatandars act says, shall be.....
Judgment:

West, J.

1. In this case the owner of an eighth of a kulkarni's vatan sues the owner of another eighth share for a declaration of his right to officiate as the sole representative of the particular branch of the vatandar family to which they both belong. The lower Courts have rejected the claim as one of which their cognizance was barred by Bombay Act III of 1874. In special appeal it is urged that the jurisdiction of the ordinary civil Courts over such cases, having been previously established and exercised in numerous decisions, could not be withdrawn except by an express enactment which the Vatandars Act does not contain. Though the Collector may have full power, it is argued, to determine who shall officiate and even who shall be recognized as amongst the class of those capable of officiating, yet, as to the abstract rights of the sharers inter se, the civil Courts may pronounce still as they did formerly before the passing of the new Act.

2. The plaintiff claims a right to perform the duties of an hereditary office to the exclusion of the defendant. Such duties, Section 24 of the Vatandars Act says, shall be performed 'by the representative vatandars.' Section 25 makes it the duty of the Collector to determine 'what persons shall be recognised as representative vatandars,' and in several following sections rules are prescribed for the performance of this duty under different circumstances. According to Section 40, Clause 1, when there is a rotation of office-holding amongst the vatandars, as the plaintiff says there is in this case, the Collector is to call on the registered vatandars to elect an officiate on the occurrence of each vacancy. If a proper election be not made, the Collector is to take other steps for providing for the vacant office. The requisite investigations are, according to Section 73, to be recorded in writing; and by Section 77 an appeal is provided from the Collector to the Revenue Commissioner. Section 72 makes the investigation a judicial proceeding for the purposes of Sections 193 and 228 of the Indian Penal Code.

3. Although, therefore, the provisions of an Act which transfers a class of determinations from the ordinary Courts to Executive Officers are in some cases to be construed restrictively, [see Winter v. Attorney-General of Victoria L.R. 6 P.C. 378, it appears to us that in the present instance the intention of the Legislature to transfer the jurisdiction from the ordinary Judges to the Collectors is too clear to be doubted. The Collector was formerly a merely executive officer, with a certain legal importance attaching to his acts under Sections 19 and 20 of Regulation XVI of 1827, but subject to control in the performance of those acts by the Civil Court. He has now been made a Judge for the particular purposes of the Vatandars' Act. His jurisdiction in that character could not be interfered with so long as it was exercised in the way provided by the Act. See Caledonian Railway Co. v. Sir Wm. Carmichael L.R. 2 Sc. Ap. 56, the principle of which is involved in the cases of Buroda Pershad v. Gora Chund 12 Cal. W.R. 160, Heera Chund v. Shama Churn 12 Cal. W.R. 275, and Ram Tarak v. Dinanath Beng. L.R. 184, It is only essential that he conform to the mode of exercising his statutory power prescribed by the law which confers it. [See per Sir G. Jessel, M.R., in Taylor v. Taylor L.R. 1 Ch. D. 426.

4. It appears to us, then, that the civil Courts have no power to give to the plaintiff the declaration that he seeks, because not only can they not afford a consequential remedy, but because they can no longer establish a right which the Collector would be bound to respect. Every vatandar now is as against other co-vatandars placed as regards the civil Courts in the same position that the rightful claimant to a vadilki, or right of eldership, formerly occupied. As the fact of being vadil gave to him in whom the quality was vested no preferential right beyond what appertained to the vatandars generally, so now the relations of all the vatandars inter se with reference to their recognition as representatives are placed entirely at the disposal of the Collector. The decision in Abaji v. Niloji 2 Bom. H.C. Rep. 342, therefore, applies to this case. That decision was recognized as binding in Ningangavada v. Satyangavda 11 Bom. H.C. Rep. 232, although another case was pointed to in which the right of action and the jurisdiction of the Court were recognized where the active enforcement in detail of the decree sought would devolve on another authority [Sadat Alikhan v. Khajeh Abdul Gani 11 Beng. L.R. 203. In such a case a right would be constituted which the other authority would have to respect; here, however, emphatically the Courts might pronounce in favour of the plaintiff's sole right according to custom and prescription to officiate as kulkarni, still as both parties are admittedly and equally co-vatandars, the Collector, and the Collector alone, could admit either or both of them to the class of representatives capable of officiating under the present law. This he would have to do on an investigation made by himself, and according to his own judgment, not according to the view taken by this Court. Its decree in favour of the plaintiff would thus be purely abortive. The establishment of the new jurisdiction thus excludes the older one, and the claim was rightly rejected. We confirm the decree of the District Court with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //