VISHNU VISHWANATH PARANJPE Vs. GOVERNMENT OF BOMBAY

JUDGEMENT

(1.) THIS second appeal raises a question under Bombay Act II of 1863, and the facts necessary to understand the question are these.

(2.) PLAINTIFF Vishwanath and his two brothers Keshav and Krishnaji were members of a joint Hindu family. These three brothers were possessed of considerable property consisting of houses, lands and a grocery shop. They had also an interest in ajaliagir village called Vadner and that interest was that they were to receive a sum of Its. 1,555-5-4 out of the revenues of the village. It appears that in 1938 there was a dispute between them about the division of the ancestral and jointly acquired properties and the dispute was referred to arbitration. The arbitrator made an award and an award decree was passed on October 25, 1937. That decree was registered on January 8, 1938. It appears that the award decree was to some extent modified by a compromise between the parties in suit No.210 of 1936. After the award decree the two brothers Keshav and Krishnaji made an application to have their names entered in the revenue records and their names were accordingly entered. From that order plaintiff Vishwanath preferred an appeal to the Commissioner, Central Division, and on September 17, 1938, he made an order imposing upon the plaintiff a penalty equal to the amount of the nazrana of both the brothers for his failure to inform the Government of what was said to be a transfer, as required by Section 5, Clause (3), of the Act. The plaintiff preferred an appeal to the Revenue Tribunal, but his appeal was unsuccessful.

(3.) UPON this appeal it is contended that the lower Courts were wrong in holding that there was in this case a transfer within the meaning of Section 16, Clause (G), of Bombay Act II of 1863. In order to understand this contention it is necessary to set forth the material part of the consent decree. It is as follows :. . The whole village of Mouje Vadner Dumala, taluka Nasik is a jahagir village and therein that is to say in the amount of Rs. 2,460, a share of Rs. 1,555-5-4 belongs to the parties, viz. the three brothers, the same being made up of Rs. 1,463-5-4 and Rs. 92 under the mortgage in possession.-------------------Out of Rs. 1,555-5-4 which the said village would yield to them as vasul, Rs. 92 in respect of the jahagir under mortgage should be independently taken by Vishvanath. Plaintiff and defendant No. 2 have no right over the same. The balance of the amount should be equally distributed by the three brothers Vishvanath Ganesh, Keshav Ganesh and Krishnaji Ganesh amongst themselves and arrangements should be made by Vishvanath Ganesh by ordering the village Patil talathi to pay Keshav Ganesh and Krishnaji Ganesh their respective shares by separate (Potebandi ). This part of the decree has been construed to mean an alienation within the meaning of Section 16, Clause (G), of Bombay Act II of 1863. Section 16, Clause (G), runs as follows: The word 'transfer' shall, for the purposes of this Act, be taken to mean the permanent alienation of land by assignment, gift, sale, deed or other instrument, or otherwise howsoever, and also mortgage of the same under which possession shall have pased or is to pass to the mortgagee.