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Gangaram Bhiku Mahadik Vs. Bapusaheb Daulatrao Mahadik - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai
Decided On
Case NumberFirst Appeal No. 95 of 1921
Judge
Reported in(1922)24BOMLR826; 67Ind.Cas.965; 84Ind.Cas.508
AppellantGangaram Bhiku Mahadik
RespondentBapusaheb Daulatrao Mahadik
DispositionAppeal dismissed
Excerpt:
.....and they would not be concerned with any question which might arise between the plaintiff and his cousins with regard to the income of the property. 154 but that case is only an authority for this proposition that where a co-sharer is a manager of the family property and has issued a notice on a tenant calling upon him to pay enhanced rent, he cannot maintain a suit by himself and in his own name, to eject a tenant who has failed to comply with the notice......property in the satara district alleged to belong to the plaintiff. it is admitted that the suit property belongs to the plaintiff's family. but the defendants claimed that they have been in possession of the suit property as the descendants of one dhondi, who, it is asserted, was the dasiputra of janrao. it is admitted that there in no decisive evidence in favour of that assertion; and no doubt there would be very great difficulty in proving the connection between dhondi's mother and jaarao, considering the time chat has elapsed. but it has been urged upon us that there are surrounding circumstances from which we must necessarily infer that dhondi was a dasiputra. the descendants of dhondi have used the same family surname as the plaintiff. they have been living in the family.....
Judgment:

Norman Macleod, C.J.

1. The plaintiff in this suit is a Sardar and Jahagirdar in the Gwalior State. His estate is in the management of the Court of Wards, and he has filed this suit through the Court of Wards against the defendants to recover possession of certain property in the Satara District alleged to belong to the plaintiff. It is admitted that the suit property belongs to the plaintiff's family. But the defendants claimed that they have been in possession of the suit property as the descendants of one Dhondi, who, it is asserted, was the dasiputra of Janrao. It is admitted that there in no decisive evidence in favour of that assertion; and no doubt there would be very great difficulty in proving the connection between Dhondi's mother and Jaarao, considering the time chat has elapsed. But it has been urged upon us that there are surrounding circumstances from which we must necessarily infer that Dhondi was a dasiputra. The descendants of Dhondi have used the same family surname as the plaintiff. They have been living in the family wada in the village of Ninam since the time of their ancestors. They have not paid any rent. They have paid assessment direct to Government, and reliance was placed on a letter written by Daulatrao, the father of the plaintiff, to Laxman, defendant No. 3, using such terms which would ordinarily be used to a relation, and not a stranger.

2. Now it may be even assumed that Dhondi was the illegitimate son of Janrao, and that the possession of his descendants of this property in the Satara District was the natural consequence of that connection, but it does not follow that Dhondi was the issue of a permanent mistress; and we agree with the very careful analysis of all the circumstances urged by the appellants of the learned Judge in the Court below, that they are not sufficient to enable the Court to conclude that Dhondi was a dasiputra.

3. Against the circumstances which are relied upon as leading to an inference that Dhondi was a dasiputra, there are these facts that the third defendant in 1910 executed a rent-note at Gwalior in favour of the plaintiff's father, and that in 1915 defendants Nos. 1 and 2 executed at Satara a rent-note in favour of the present plaintiff.

4. It was suggested that these rent-notes were obtained by improper means, but there is no evidence to warrant a finding to that effect. It is not suggested that the defendants have ever dealt with the property as their own, and as the Judge remarks, when the Record of Rights was prepared, they put forward no proprietory rights of their own, and that fact must go very much against them.

5. Then it was urged that the suit must fail for non-joinder of proper plaintiffs. Undoubtedly in the pedigree Madhavrao and Keshavrao are members of Janrao's family, the junior branch, being first cousins of the plaintiff. From the evidence of the plaintiff's Mukhtyar it seems that Madhavrao and Keshavrao were drawing an allowance of Rs. 300 a month, each from the estates composing the Jahagir. The Jahagir, we have been told, is very valuable, the income being estimated at Rs. 75,000 a year, and the fact that these two members of the junior branch are only drawing Rs. 300 a month each, seems to show that it is recognised in Gwalior that the elder branch of the Jahagirdar's family has permanent rights to the revenues of the Jahagir. However that may be, the fact remains that the rent-notes were signed by the defendants in favour of the plaintiff, and that by itself would entitle the plaintiff to sue for possession if the defendants refuse to comply with the terms of the rent-notes. Not only that, but they have set up their own title against the title of the plaintiff. We do not think in these circumstances the suit is bad because the plaintiff has sued alone without joining Madhavrao and Keshavrao, Such a non-joinder cannot in any way prejudice the defendants as they would not be liable to have any demand made upon them for rent by Madhavrao and Keshavrao, and they would not be concerned with any question which might arise between the plaintiff and his cousins with regard to the income of the property.

6. In Bando v. Jambu : (1910)12BOMLR801 the plaintiff sued to recover on a promissory note, but Mr. Justice Chandavarkar at p. 809 dealt generally with the rights of one member of a Hindu family to sue on a contract made with an outsider when the contract was made to that member alone. The learned Judge says (p. 809):-

The law is that where credit is given to an individual member in a Hindu family, by an outsider, in respect of a contract, whether it be of money-lending, or of letting, the contract is one on which that member alone is entitled to sue. The principle of the decision in Gurushantapp v. Chanmallappa I.L.R. (1899) 24 Bom. 123 has been followed as regards leases executed in favour of a single coparcener in a joint Hindu family. There is a ruling to that effect in Sayad Fatulla vatad sayad Kamlodin v. Bala bin Shivaya Gavda (1884) P.J. 33 where it was held that 'he who passes a Kabulayat to one of two or more who have a common interest cannot free himself from his liability by payment to another unless that other is the agent of the one with whom he has contracted. The defendant having attorned to the nephew exclusively and had enjoyment undisturbed by the nephew in consequence, must pay him,' That principle has been followed in a series of cases, which will be found in our Printed Judgments and also in the Law Reports.

7. Reliance is placed by the appellants on Balkrishna v. Mora I.L.R. (1896) 21 Bom. 154 But that case is only an authority for this proposition that where a co-sharer is a manager of the family property and has issued a notice on a tenant calling upon him to pay enhanced rent, he cannot maintain a suit by himself and in his own name, to eject a tenant who has failed to comply with the notice. It is clear that when the question of demanding enhanced rent arises, it would be to the prejudice of the tenant if one member of the joint family could issue a notice to enhance and, if that was not obeyed, sue in ejectment by himself. If that were allowed the tenant might be open to a succession of suits by Various members of the family of a similar kind. No question of the sort arises in this case since, as we have pointed out, the defendants are in no way prejudiced by the plaintiff suing alone, and in no case could there be any chance of their being troubled by another suit filed by the other members of the family. We think, therefore, that the judgment of the Court below was right and the appeal must be dismissed with costs.


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