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Khursedji Rustomji Colah Executor of Dossibai, Widow Vs. Pestonji Cowasji Bucha - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1888)ILR12Bom573
AppellantKhursedji Rustomji Colah Executor of Dossibai, Widow
RespondentPestonji Cowasji Bucha
Excerpt:
small cause court - jurisdiction--gift--incomplete gift--suit by executor to recover promissory notes on ground that the gift of them to defendant was incomplete--act xv of 1882, section 18 - - the last decision, however, cannot well be supported on any other ground......to go into the question whether there had been an incomplete gift of the moneys represented by the notes, he held, on the authority of barton v. gainer 3 h. & n., 387 and rummens v. hare l.r., 1 ex. div., 169 that the defendant had the right to retain the notes.2. those cases are, doubtless, decisions that where there is evidence of a gift to the defendant of the paper writing constituting the security, an action of detinue will not lie at common law in england for the recovery of such paper writing, on the ground that there is an imperfect gift of the moneys which are the subject of the security. in such actions at common law as lord cairns points out in rummens v. hare l.r., 1 ex. div., 169 there is no question with regard to the right to the money secured by the paper writing, but for.....
Judgment:

Charles Sargent, C.J.

1. This reference arises out of a suit by an executor in the Small Cause Court to recover from the defendant two Government notes, of the nominal value of Rs. 2,000, standing in the name of the testatrix, alleging that the defendant had removed them from the testatrix's box during her illness. The defence set up was that the notes had been given by the testatrix to the defendant as a reward for past services. The Judge of the Small Cause Court says that the defendant's evidence on this point was very unsatisfactory, and that he could not rely on it. However, he held, Upon the whole of the evidence, that there was evidence of a gift of the notes to the defendant; but being of opinion, as it would seem, that he had not jurisdiction, to go into the question whether there had been an incomplete gift of the moneys represented by the notes, he held, on the authority of Barton v. Gainer 3 H. & N., 387 and Rummens v. Hare L.R., 1 Ex. Div., 169 that the defendant had the right to retain the notes.

2. Those cases are, doubtless, decisions that where there is evidence of a gift to the defendant of the paper writing constituting the security, an action of detinue will not lie at common law in England for the recovery of such paper writing, on the ground that there is an imperfect gift of the moneys which are the subject of the security. In such actions at common law as Lord Cairns points out in Rummens v. Hare L.R., 1 Ex. Div., 169 there is no question with regard to the right to the money secured by the paper writing, but for the detention of the paper writing only. However, in a Court of equity the question is regarded from a wider point of view. In Searle v. Law 15 Sim., 95 the plaintiff, who was the holder under an incomplete voluntary assignment of turnpike securities and shares, sought for a declaration that he was beneficially entitled to them, and the Court having found that he was not so entitled ordered him to deliver them up. Again in In re Richardson; Shillito v. Hobson L.R., 30 Ch. Div., 396 it was held that the defendant could not retain possession of a title-deed which had been given to him, as it could not be separated from the equitable mortgage created by its deposit, of which there had been no valid and complete gift to the defendant. Lastly, in In re Hancock; Hancock v. Berrey 36 W.R. 710 . a mortgagee of a share in a certain sum of consols delivered the mortgage-deed to a third person, intending to make a gift of the mortgage, but which was not completed, and the Court directed the defendant to restore the deed to the representative of the mortgagee.

3. In the first two of these cases in equity there were special circumstances which may prevent their being regarded as authorities for holding that a Court of equity will, in all cases of an incomplete gift, direct documents of title to be handed over to the person beneficially entitled to them. The last decision, however, cannot well be supported on any other ground. Nor is it possible to draw any real distinction between a mortgage-deed in that case and the Government promissory notes in the present one. They are both the documents of title upon which the creditor must rely to enforce his claim-in the one case against his mortgagor, and in the other against Government. We think, therefore, that the plaintiff, in a Court competent to deal with all the rights of the parties, ought to succeed, if there was no complete gift of the moneys secured by the notes.

4. It was argued, however, that a Court of Small Causes cannot deal with the question in its entirety, as to do so would be virtually to declare the defendant to be a trustee for the plaintiff, thus making a declaratory decree, which is excluded from the competency of the Court by Section 19, sub.-cl. (s) of Act XV of 1882. But that clause refers to a declaratory decree properly so called, and not to one in which the declaration is merely introductory to the relief sought. Again, it was contended that the jurisdiction of the Small Cause Court is confined to suits where the right sought to be enforced would have been the subject of a suit on the plea side of the Supreme Court. The jurisdiction of the Small Cause Court under the Acts IX of 1850 and XXVI of 1864 was doubtless held to be so limited (except as specially provided by Section 32) in Bai Jadav v. Tribhuvandas Jagjivandas 9 Bom. H.C. R 333 . That conclusion was arrived at on the language of Section 25 of the Act of 1850,which gives jurisdiction to the Small Cause Court in suits where the debt or damage claimed or value of the property in dispute is not more than Rs. 500. The language of Section 2 of Act XXVI of 1864 was more comprehensive, but the Court notwithstanding held that 'the object of the Legislature in passing Act XXVI of 1864 was to increase the money limits of the jurisdiction of the Court, not to enlarge the class of suits on which it had jurisdiction. The language, however, of Section 18 of Act XV of 1882, which now determines the jurisdiction of the Small Cause Courts, is quite general, and gives jurisdiction to the Courts to try 'all suits of a civil nature' when the amount of value of the subject-matter does not exceed Rs. 2,000, subject only to the exceptions in Section 19, none of which have any application to the present case, which raises only the question whether there has been an incomplete gift of the moneys secured by the notices. We have, therefore, no doubt that the Court of the Small Causes has jurisdiction to entertain the plaintiffs claim, on the ground that there was an incomplete gift, and must answer the question referred to us in the, affirmative.


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