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Shankar Babaji Kulkarni Vs. Dattatraya Bhiwaji - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 229 of 1914
Judge
Reported inAIR1915Bom262; (1915)17BOMLR725; 30Ind.Cas.925
AppellantShankar Babaji Kulkarni
RespondentDattatraya Bhiwaji
Excerpt:
.....to be the eldest son, or nearest heir, and it is a question which is not by the words of the act reserved for the exclusive determination of the collector. 5. it has been argued that the second part of the declaration prayed in the plaint, namely, a declaration that the plaintiff is entitled to have his name entered in the place of ramchandra in the register is clearly a matter which would be beyond the jurisdiction of the court......of a decree or order of a competent court, satisfy the collector that he is entitled to have his name registered as the nearest heir of such deceased vatandar in preference to the person whose name the collector has ordered to be registered, the collector may, subject to the foregoing provisoes, caus the entry in the register to be amended accordingly.4. therefore, in connection with this question of heirship under the deceased vatandar, the act, as it stood before the amendment, and as it now stands since the amendment, recognises the possibility of the production of a decree of a competent court upon the question of heirship affecting the entries in the vatan register.5. it has been argued that the second part of the declaration prayed in the plaint, namely, a declaration that the.....
Judgment:

Basil Scott, C.J.

1. In this case the plaint stating the death of a Vatandar named Ramchandra alleged 'that the Kulkarni Vatan is to be continued in the eldest family; that the defendant No. 1 whose name was entered in the Register was not of the eldest family, and that the plaintiff was, and that in consequence of the defendants' objection the plaintiff's name was not entered in the Vatan Register. Therefore, the plaintiff brings this suit praying for a declaration (a) that he, the plaintiff, being of the eldest family, is the nearer heir of Ramchandra than the defendant; and (b) that the plaintiff has a right to have his name entered in the place of Ramchandra with respect to the Kulkarni Vatan at Bhalvani, he being of the eldest branch.'

2. The lower Courts have held on the authority of Raoji v. Genu I.L.R. (1896) 22 Bom. 344 that they have no jurisdiction to entertain the suit, and it has therefore been dismissed. In our opinion their decision is not correct. Raoji v. Genu related to Section 25 of the Bombay Hereditary Offices Act (Bom. Act III of 1874). On the. other hand, Rahimkhan v. Dadamiya (1909) 11 Bom. L.R. 1339, which was distinguished in the lower appellate Court, related to Section 36 of the Bombay Hereditary Offices Act. In that case it was said :

The conclusive determination of the question whether the statutory condition of eldership or heirship is satisfied becomes therefore a matter of importance to a person claiming to be the eldest son, or nearest heir, and it is a question which is not by the words of the Act reserved for the exclusive determination of the Collector. This view of Section 36 was taken by this Court in Dalpat Jogidas v. Punja Zipa (1909) 11 Bom. L.R. 1342, f.n., where, upon review, it was held that a suit for a declaration that the plaintiff was the nearest heir of a deceased representative Vatandar was maintainable notwithstanding that it was manifest that the declaration was sought for the purpose of establishing a fact which would enable the plaintiff to have his name entered in the Vatan Register.

3. Those decisions were passed upon Section 36 of the Act before it was amended in 1910. Section 36 then provided that: 'A certificate of heirship or a decree of a competent Court shall, until revoked or set aside, be a conclusive proof of the facts stated or determined in such certificate or decree. 'Reference to 'a certificate of heirship, or a decree or order of a competent Court' is no longer in the same language. Whether or not the new reference has a different effect is a matter which we do not propose to determine. The amended Act provides that:

If at any time any person shall by production of a certificate of heirship, or of a decree or order of a competent Court, satisfy the Collector that he is entitled to have his name registered as the nearest heir of such deceased Vatandar in preference to the person whose name the Collector has ordered to be registered, the Collector may, subject to the foregoing provisoes, caus the entry in the Register to be amended accordingly.

4. Therefore, in connection with this question of heirship under the deceased Vatandar, the Act, as it stood before the amendment, and as it now stands since the amendment, recognises the possibility of the production of a decree of a competent Court upon the question of heirship affecting the entries in the Vatan Register.

5. It has been argued that the second part of the declaration prayed in the plaint, namely, a declaration that the plaintiff is entitled to have his name entered in the place of Ramchandra in the Register is clearly a matter which would be beyond the jurisdiction of the Court. Let that be granted, it does not prevent the plaintiff from getting relief under the first head to which upon the authorities he is entitled. We are not prepared to agree with the learned Judge of the appellate Court that a declaration under the first head, 'as it would not be binding upon the Collector, would not serve any purpose whatever.' As above stated, we do not propose to express any opinion as to the effect of the words of Clause 3 of the proviso to the amended section. Being of opinion that the Court has jurisdiction to give the relief asked for in the first paragraph of the prayer, we set aside the decree of the lower appellate Court and remand the case for trial. Costs costs in the cause.


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