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Krishnaji Pandurang Vs. Gajanan Balvant Kulkarni - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in2Ind.Cas.489
AppellantKrishnaji Pandurang
RespondentGajanan Balvant Kulkarni
Excerpt:
power to levy toll assigned by a foreign state - tipnis pansare right--immoveable property according to hindu law--nibandha--penalty or tax--jurisdiction of british indian courts to entertain the suits in respect of immovable property situate outside british territory. - .....of toll leviable on paddy exported from the territory of the punt suchiv to pen via umber khind in british territory. the respondent alleged in his plaint, and it is found proved by both the courts below, that, under a grant from the peshwas, who were the rulers at that time of the territory now owned by the punt suchiv, the respondent has acquired the right in that territory to levy a certain rate or cess on all imports into and exports from it. it goes by the name of the tipnis pansare right.2. it is admitted before me that the cause of action arose in foreign territory, but it is contended that the suit lies in our courts because the defendant resides in british jurisdiction. what the respondent claims, however, is an allowance granted by the peshwa in permanence, and such an.....
Judgment:

Chandavarkar, J.

1. The action in this case was brought by the respondent to recover a certain sum of money from the appellant on account of toll leviable on paddy exported from the territory of the Punt Suchiv to Pen via Umber Khind in British territory. The respondent alleged in his plaint, and it is found proved by both the Courts below, that, under a grant from the peshwas, who were the rulers at that time of the territory now owned by the Punt Suchiv, the respondent has acquired the right in that territory to levy a certain rate or cess on all imports into and exports from it. It goes by the name of the Tipnis Pansare right.

2. It is admitted before me that the cause of action arose in foreign territory, but it is contended that the suit lies in our Courts because the defendant resides in British jurisdiction. What the respondent claims, however, is an allowance granted by the Peshwa in permanence, and such an allowance, whether secured on land or not, being, according to Hindu law, nibandha, has been held to be immovable property: The Collector of Thana v. Hari Sitaram 6 B. 546; 559. This immovable property is situate, in the eye of law, in a foreign State, because, on the facts found, the right to levy the toll which the respondent claims is found to arise in the territory of the Punt Suchiv. To this state of facts the principle of the decision of this Court in Keshav v. Vinayak 23 B. 22 applies. It has been held there that a Court in British India has no jurisdiction to try a suit for the determination of a right to or interest in immovable property situated outside British India, when the right is denied. In the present case the respondent's claim has been contested by the appellant, and, though the suit is for a money claim it is in reality a claim to immovable property situate outside British territory.

3. Our-Courts no doubt have jurisdiction to try actions relating to such property where the persons against whom relief is sought are living within the jurisdiction, but that is 'upon the ground of a contract or some equity subsisting between the parties respecting immoveables situated out of the jurisdiction.' See the notes to Penn v. Lord Baltimore (1750) W. and T.L.C. (7th Edition) p. 768. There is no contract or equity here. On the other hand, what the respondent claims and what is found on the evidence is that the ruling power of a foreign State has assigned to the respondent the right of that power to levy toll on certain articles in that territory. 'The action is in the nature of an action for a penalty or to recover a tax; it is analogous to an action brought in one country to enforce the revenue laws of another. In such case it has always been held that an action will not lie outside the confines of the last mentioned State: 'Sydney Municipal Council v. Bull (1909) 1 K.B. 7. 12.

4. For these reasons the decree of the Court below must be reversed and the claim rejected with costs throughout on the respondent.


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