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Govind Mahipat Deshpande Vs. Balkrishna Narayan - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberCivil Revision application No. 105 of 1925
Judge
Reported in(1926)28BOMLR456; 94Ind.Cas.760
AppellantGovind Mahipat Deshpande
RespondentBalkrishna Narayan
Excerpt:
.....high court declined to interfere with an order passed by the collector refusing to issue a certificate, under section 10 of the bombay hereditary offices act, for setting aside an attachment on watan lands under a decree against the deceased watandar.;it is doubtful if the high court would interfere, under section 115 of the civil procedure code, with an order passed by the collector refusing to grand a certificate under section 10 of the hereditary offices act 1874.;the collector of thana v. bhaskar mahadev sheth (1884) i.l.r. 8 bom. 264 doubted. - - 1,460 from the date of suit till the date of realisation on or before june 8, 1921; and that on failure to pay to the defendant as stated above, defendant should apply to the court for recovery of the sum by sale of..........of the aforesaid decree filed a darkhast no. 489 in the civil court at athni and got the aforesaid watan property attached for sale. while the execution proceedings were thusgoing on, the petitioner's father, the original mortgagor, died, and the petitioner, the son of the deceased mortgagor, applied to the district deputy collector for issuing a certificate under section 10 of the watan act stating that the property attached for sale was watan, and, therefore, inalienable, in order to enable the court in which execution proceedings were pending to remove the attachment and any other & process then pending against the watan or any part thereof the district deputy collector made the following order on this application:-in the circumstances reported by the mamlatdar, the prant does not.....
Judgment:

Norman Macleod, C.J.

1. The petitioner's father in this case mortgaged the Kulkarni and Deshpande Watan lands to the opponent under two mortgage deeds, dated June 10, 1913, and August 6, 1914, respectively, the former by himself and as guardian of his minor sons including the petitioner, and the latter by himself alone, for cash consideration, The petitioner's father then instituted Suit No. 33 of 1920 in the Court of the Second Class Subordinate Judge, Athni, against the opponent for Recounts and redemption of the two mortgages under the Dekkhan Agriculturists' Belief Act, The Subordinate Judge allowed redemption and passed an order that the plaintiff should continue to remain in possession of mortgaged land; that the plaintiff should pay to the defendant Rs. 2,210 and defendant's costs in this suit with interest on Rs. 1,460 from the date of suit till the date of realisation on or before June 8, 1921; and that on failure to pay to the defendant as stated above, defendant should apply to the Court for recovery of the sum by sale of sufficient portion of the mortgaged property.

2. The opponent in pursuance of the aforesaid decree filed a Darkhast No. 489 in the Civil Court at Athni and got the aforesaid watan property attached for sale. While the execution proceedings were thusgoing on, the petitioner's father, the original mortgagor, died, and the petitioner, the son of the deceased mortgagor, applied to the District Deputy Collector for issuing a certificate under Section 10 of the Watan Act stating that the property attached for sale was watan, and, therefore, inalienable, in order to enable the Court in which execution proceedings were pending to remove the attachment and any other & process then pending against the watan or any part thereof The District Deputy Collector made the following order on this application:-

In the circumstances reported by the Mamlatdar, the Prant does not think is necessary to issue a certificate under Section 10 of the Watan Act. The applicant should be informed accordingly. It the lands are purchased by strangers the applicant may apply.

3. The petitioner now asks this Court to set aside this order and pass an order for issue of the certificate or such other order or orders as the Court may think proper.

4. In The Collector of Thana v. Bhaskar Mahadev Sheth I.L.R.(1881) 8 Bom. 261 the Court held that the Collector when granting a certificate, under Section 10 of the Bombay Hereditary Offices Act (No. III of 1874), exercises a judicial function, and is subject to the supervision of the High Court: but the High Court will not interfere with his discretion, unless there is violent misuse of authority, obvious bad faith, or reckless disregard, or wanton perversion of the law on his part. In that case the Collector had issued a certificate under Section 10 of the Watan Act, and the application to the High Court was to set aside the grant of a certificate issued by the Collector.

5. In this case the Collector refused to issue a certificate, but it is very doubtful to my mind whether the High Court could, under 8, 115 of the Civil Procedure Code, order the Collector to issue a certificate or set aside a certificate once granted. Eut I do not think that that question need be pursued in this case, as there is no necessity to interfere with the order made by the Collector refusing to grant a certificate, as it certainly, using the words of the case I have just cited, 'was not made in violent misuse of authority, obvious bad faith, or reckless disregard, or wanton perversion of the law' on the part of the Collector. It would only be, if such conduct were proved, that this Court could possibly interfere with an order made by the Collector on an application under Section 10 of the Watan Act, Section 10 states that:-

When it shall appear to the Collector that by virtue of, or in execution of, a deoree or order of any British Court any watan, or any part thereof, or any of the profits thereof, recorded as such in the Revenue records or registered under this Act and assigned under Section 23 of this Act as remuneration of an officiater, has or have, after the date of this Act coming into force, passed or may pasa without the aanotion of Government into the ownership or beneficial possession of any person other than the officiator for the time being; or that any such a watan, or any part thereof, or any of the profits thereof, not so assigned has or have so passed into the ownership or beneficial possession of any person not a watandar of the same atan, the Court shall, on receipt of a certificate under the hand and seal of the Collector, stating that the property to which the decree or order relates is a watan, or part of watan, or that such property constitutes the profits or part of the profits of a watan, or is assigned as the remuneration of an officiator and is therefore inalienable, remove any attachment or other process then pending against the said watan, or any part thereof, or any of the profits thereof, and set aside any sale or order of sale or transfer thereof, and shall cancel the decree or order complained of so or as it concerns the said watan, or any part thereof, or any of the profits thereof.

6. We are only concerned in this case with watan property which may not pass into the ownership of a person who is not a watandar of the same watan. What was in the mind of the Collector when he made his order was that a watandar of the same watan might purchase the property which would be permissible under the Act. If, on the contrary, it was purchased by a stranger, then the applicant might apply for a certificate, and on the issue of that certificate the Court would set aside the sale.

7. We cannot, therefore, interfere with the decision of the Collector which was made in the exercise of his discretion. The rule will be discharged with costs.

Coyajee, J.

8. I am of the same opinion. I share the doubts expressed by my Lord the Chief Justice, but assuming that we had the power of revision in a case of this nature, it is clear this is not a case for our interference under Section 115 of the Code of Civil Procedure.


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