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Dossibai Framji Markar Vs. Cooverbai Hormasji Markar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Application No. 49 of 1908
Judge
Reported in(1908)10BOMLR758
AppellantDossibai Framji Markar
RespondentCooverbai Hormasji Markar
DispositionAppeal dismissed
Excerpt:
presidency small cause courts act (xv of 1882), section 19(k)-suit to enforce arrears of annuity-suit to enforce a trust.; a suit to enforce the arrears of an annuity payable under a will and to which the executors have assented, is cognizable by the presidency small cause court; it does not fall under section 19(k) of the presidency small cause courts act, 1882. - .....cause court for the arrears of annuity.3. it is contended before us that the small cause court had no jurisdiction to try the suit by reason of the prohibition contained in section 19(k) of act xv of 1882, which removes from the jurisdiction of that court suits to enforce a trust.4. we are of opinion that this is a suit in the nature of a suit in trover such as that which was the subject of discussion in williams v. lee (1745) 3atk. 223, or a suit for money had and received by the defendants for the use of the plaintiff, and we do not think it is a suit of the nature contemplated in clause (k) of section 19.5. we, therefore, dismiss the application.
Judgment:

Basil Scott, C.J.

1. In this case the defendants, who were executors under the will of a Parsee gentleman named Framji Cawasji Marker, have assented to a certain annuity payable to the plaintiff and paid it for a period of fifteen years after the testator's death.

2. Then for the period between the 1st of June 1905 and 31st of July 1907, they did not pay. She accordingly sued them in the Presidency Small Cause Court for the arrears of annuity.

3. It is contended before us that the Small Cause Court had no jurisdiction to try the suit by reason of the prohibition contained in Section 19(k) of Act XV of 1882, which removes from the jurisdiction of that Court suits to enforce a trust.

4. We are of opinion that this is a suit in the nature of a suit in trover such as that which was the subject of discussion in Williams v. Lee (1745) 3Atk. 223, or a suit for money had and received by the defendants for the use of the plaintiff, and we do not think it is a suit of the nature contemplated in Clause (k) of Section 19.

5. We, therefore, dismiss the application.


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