GAVRISHANKAR BHAISHANKAR THAKOR Vs. MADHAVSANGJI JESANGJI

JUDGEMENT

(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.