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Bhau Balapa Vs. Nana and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom343
AppellantBhau Balapa
RespondentNana and ors.
Excerpt:
civil procedure code (act xiv of 1882), section 424 - notice--collector joined a patty in respect of minor's property administered by him to protect minor's title--act iii (bom.) of 1874, section 10, effect of certificate under. - - these cases proceed on the ground, and we think rightly, that there must be a distinct act by the collector which is complained of to entitle him to notice as contemplated by section 421. we may remark that in the case already referred to (the collector of bijnor v......collector of bijnor v. manuvar i.l.r. all. 20 a full bench of the allahabad high court held that a collector appointed to act under section 204 of the bengal act xix of 1873 as the agent of the court of wards is a public officer within the meaning of sections 2 and 424 of act x of 1877, (which are substantially the same as the corresponding sections of the code of civil procedure of 1882), and is consequently entitled to notice before an action is brought against him for an act done in that capacity.2. but the question still remains, whether the collector is sued in respect of an act done by him in his official capacity. in anantharaman v. ramasami i.l.r. mad. 317. the collector, who was guardian of the infant defendant by the court of wards, was sued on a promissory note for which the.....
Judgment:

Charles Sargent, C.J.

1. We think that the Judge was wrong in holding that notice should have been given to the Collector as contemplated by Section 424 of the Code of Civil Procedure. That the Collector is a public officer when acting under a certificate granted to him by Act XX of 1864, is virtually settled by authority. In Narsingrav v. Lakshmanrav I.L.R. 1 Bom. 318 it was held that the Collector, who has been appointed to take charge of the estate of a minor under Act XX of 1864, is appointed in his capacity as Collector, and is, therefore, an officer of Government within the meaning of Act XIV of 1869, Section 32. In The Collector of Bijnor v. Manuvar I.L.R. All. 20 a Full Bench of the Allahabad High Court held that a Collector appointed to act under Section 204 of the Bengal Act XIX of 1873 as the agent of the Court of Wards is a public officer within the meaning of Sections 2 and 424 of Act X of 1877, (which are substantially the same as the corresponding sections of the Code of Civil Procedure of 1882), and is consequently entitled to notice before an action is brought against him for an act done in that capacity.

2. But the question still remains, whether the Collector is sued in respect of an act done by him in his official capacity. In Anantharaman v. Ramasami I.L.R. Mad. 317. the Collector, who was guardian of the infant defendant by the Court of Wards, was sued on a promissory note for which the minor's estate was liable : he was held to be not entitled to notice. Again in Shahebzades Shahunshah Begum v. Fergusson I.L.R. All. 20 the official trustee was held not entitled to notice when it was sought by the plaint to compel him to hand over the funds to a person claiming to be a cestui qui trust. These cases proceed on the ground, and we think rightly, that there must be a distinct act by the Collector which is complained of to entitle him to notice as contemplated by Section 421. We may remark that in the case already referred to (The Collector of Bijnor v. Munuvar I.L.R. Cal. 499 the Collector had illegally seized some property. Here the Collector was made a party, not in respect of any alleged illegal act by him, but on the application of the minor's personal guardians, in order to protect the minor's title as set up by the first defendant, and no notice was therefore, in our opinion, required by the section.

3. Passing to the second ground on which the Judge held that the plaint should be dismissed, viz., that the Collector had certified to the Court under Section 10 of Act III of 1874 (Bom.), that the land in question was part of a vatan, and therefore, inalienable, it was held in Shankar v. Babaji I.L.R. 12 Bom. 550 that Sections 9 and 10 must be read with the earlier sections, and are not applicable where the alienation or the decree sought to be set aside is by or against a person other than a vatandar. Here the first defendant, whose interest was purchased by the plaintiff, is admittedly not a vatandar; the Judge ought not, therefore, in our opinion, to have acted on the certificate by setting aside the sale to plaintiff.

4. We must, therefore, reverse the decree of the Court below, and send the case back for disposal. Costs of this appeal to depend on the result.


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