GOVIND VASUDEO KULKARNI Vs. NARAYAN BALWANT KULKARNI

JUDGEMENT

(1.) WE think this case comes within the decision in Damodar Gopal Dikshit v. Chintaman. Balkrishna Karve 17 B. 42 9 Ind. Dec (N.S.) 28, cited with approval in Bhikaji Hari V/s. Radhabai 21 Ind. Cas. 181 : 37 B. 700 : 15 Bom. L.R. 802. In the latter case the plaintiff sued the defendants alleging that they were both sharers in the kulkarni watan, and that the defendants had received profits of the office and had not paid to the plaintiff her share for a certain number of years. The defendant admitted that he had received the profits, and admitted that the plaintiff was a sharer, but only disputed the quantum of her share. The suit was held to be a suit for money had and received by the defendant for the use of the plaintiff, and was a suit of a Small Cause Court nature in respect of which no second appeal lay.

(2.) IN this case we are asked to hold that the suit came within Art. 13 of the Second Schedule of the Provincial Small Cause Courts Act as it was a suit to enforce payment of the allowance or fees respectively called malikana and hakk, or of cesses or other dues when the cesses or dues are payable to a person by reason of his interest in immoveable property, or in an hereditary office or in a shrine or other religious institution. This is not a suit to enforce payment of the allowance for which the kulkarni watan in question was commuted. That allowance has been recovered from its source, and this is only a dispute between persons claiming to divide it. The plaintiff was entitled to sue the defendant for money had and received. Consequently there was no appeal to the District Court if the Trial Judge had Small Cause Court powers, and if he had not such powers then although the District Court was competent to hear an appeal, there would be no second appeal. IN any event the second appeal, should be dismissed with costs in favour of respondent No. 1