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Gavrishankar Bhaishankar Thakor Vs. Madhavsangji Jesangji - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 290 of 1923
Judge
Reported inAIR1925Bom175; (1925)27BOMLR88
AppellantGavrishankar Bhaishankar Thakor
RespondentMadhavsangji Jesangji
DispositionAppeal dismissed
Excerpt:
.....that in such a case the immediate successor should be under the disability of mortgaging beyond his own life, at any rate in cases where the estate is still under management when he succeeds to it. no charge would be created on the estate, and supposing the successor plunged wildly into debt after the management was restored to him, then it would be quite practicable to nave me estate once more restored to management under the earlier sections of the act so that it cannot be effectively argued against the above construction of the act that it would still leave an unrestricted power of creating unsecured debts, all of which a creditor could enforce to the full by attaching the property and so indirectly effecting the very object that a secured mortgage would do 7. under these..........section 9 it is for the manager (who is usually the talukdari settlement officer) to mortgage or charge a property so long as the management continues. 4. next, when we come to section 28, which deals with the position when the management is ended, it will be seen that the words there are 'a thakur,' and that accordingly the language is changed from that in section 26 which refers to 'the owner' and from that in section 27 which refers to 'the debtor.' 5. in my opinion in the present case madhavsangji is a thakor who within the meaning of section 28 has been restored under section 26 to the 'possession of property.' if the legislature had intended to confine the operation of section 28 to the original debtor (e. g. shivsangjee), i think that instead of the words 'a thakur' in section.....
Judgment:

Marten, J.

1. The short point in this case is whether Madhavsangji, the deceased defendant, was a Thakor within the meaning of Section 28 of the Broach and Kaira Incumbered Estates Act 1881 (Bom. Act XXI of 1881) and accordingly prevented from mortgaging beyond his own life except with the sanction of the Commissioner. It is said that he id not such a Thakor because the estate in question was taken under management in the lifetime of his brother Shivsangjee, and that accordingly he (Madhavsangji) is not under the same disabilities as his deceased brother would undoubtedly have been under Section 28 on restoration to possession of his property.

2. Now in this case it is stated that there was a liquidation scheme under Section 20 and that the management was afterwards terminated under Section 26. Accordingly under the provisions of that section not only did the management terminate, but the owner was also restored to the possession and enjoyment of the property under management Then the next Section 27 provides for what is to happen if the original debtor dies after the publication of the order of management and before the management has been terminated. That section applies to the present case. In that case the management continues, and the successor becomes subject to the same disabilities as his predecessor under Section 9 (b) and (c), viz., that he cannot mortgage, charge, lease or alienate the property under management, or grant valid receipts for the rents and profits. But on the other hand he is not debarred like his predecessor under sub-section (a) of that section from entering into any contract involving him in pecuniary liability.

3. Stopping there, what the Act provides is that pending management a successor may contract unsecured debts, but cannot create any charge on the property. And there is one good reason for this, viz., that under the concluding words of Section 9 it is for the manager (who is usually the Talukdari Settlement Officer) to mortgage or charge a property so long as the management continues.

4. Next, when we come to Section 28, which deals with the position when the management is ended, it will be seen that the words there are 'a Thakur,' and that accordingly the language is changed from that in Section 26 which refers to 'the owner' and from that in Section 27 which refers to 'the debtor.'

5. In my opinion in the present case Madhavsangji is a Thakor who within the meaning of Section 28 has been restored under Section 26 to the 'possession of property.' If the legislature had intended to confine the operation of Section 28 to the original debtor (e. g. Shivsangjee), I think that instead of the words 'a thakur' in Section 28 the legislature would have used the words 'the debtor' as in Section 27. And I can see very good reasons why the successor should be prohibited from mortgaging beyond his own life, although he may be allowed to incur unsecured debts. After all in the case now under consideration the estate has already been under management once, and it may well have been thought prudent by the legislature that in such a case the immediate successor should be under the disability of mortgaging beyond his own life, at any rate in cases where the estate is still under management when he succeeds to it.

6. As regards the unsecured debts the position is different. No charge would be created on the estate, and supposing the successor plunged wildly into debt after the management was restored to him, then it would be quite practicable to nave me estate once more restored to management under the earlier sections of the Act So that it cannot be effectively argued against the above construction of the Act that it would still leave an unrestricted power of creating unsecured debts, all of which a creditor could enforce to the full by attaching the property and so indirectly effecting the very object that a secured mortgage would do

7. Under these circumstances I think the judgment of the lower Court is correct, and that the appeal should be dismissed with costs.

Fawcett, J.

8. I agree. The meaning of Section 28 seems to me to be too clear to permit of the ingenious argument which has been put forward before us by Mr Coyajee for the appellant. There is no ambiguity to justify the Court in going outside the plain meaning of the words in their natural sense, and in trying to ascertain the intention of the legislature from other provisions of the Act. There is also a dear decision of this Court in Parshottam v. Chhatrasangji (1919) 19 Bom. L.R. 545 where a similar contention was overruled without hearing the respondent.


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