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.) The plaintiff, therefore, filed the present suit against the Province of Bombay alleging that the order made by the Commissioner on September 17, 1938, was illegal, unjust and ultra vires. He also asked for refund of part of the amount of the penalty already paid by him and for an injunction restraining the defendant from recovering the remaining amount of penalty from him. The Province of Bombay filed a written statement, contending, inter alia, that there was a transfer in favour of the plaintiff's brothers within the meaning of Bombay Act II of 1863, that the plaintiff failed to give notice as required by Section 5, Clause (3), of the Act, and that the Commissioner was competent to make the order.