Mumbai Court January 1903 Judgments
Kanhayalal Bhikaram and ors. Vs. Narhar Laxmanshet Vani
Court: Mumbai
Decided on: Jan-23-1903
Reported in: (1904)ILR27Bom193
Chandavarkar, J.1. The law is well established that, though once a mortgage always a mortgage and no clog can be placed by the mortgagee on the mortgagor's equity of redemption, it is open to both of them to enter into a contract subsequent to the mortgage for the sale of the mortgaged property to the mortgagee. That principle was enunciated by the Court of Appeal in England in the case of Lisle v. Reeve (1902) 1 Ch. 53 where Vaughan Williams, L.J., said: I did not understand the defendant's counsel to dispute that it is competent for a mortgagee to enter into an agreement to purchase from the mortgagor his equity of redemption. The only objection to such an agreement is, that it must not be part and parcel of the original loan or mortgage bargain. The mortgagee cannot, at the moment when he is lending his money and taking his security, enter into an agreement, the effect of which would be that the mortgagor should have no equity of redemption. But there is nothing to prevent that bein...
Tag this Judgment!Mahomed Isub and anr. Vs. Bashotappa BIn Takappa
Court: Mumbai
Decided on: Jan-22-1903
Reported in: (1904)ILR27Bom196
Batty, J.1. In this case the plaintiff having in a previous suit obtained a decree against two brothers, now appellants, for possession under Section 9 of the Specific Relief Act, was resisted by a third brother, Ahmad Saheb, the original defendant in the present suit, and in accordance with Section 331 of the Code of Civil Procedure (Act XIV of 1883) the claim was numbered and registered as a suit between the decree-holder as plaintiff and the obstructing claimant as defendant. The issues that properly arose in such a suit under the provisions of that section were whether the person obstructing was in possession on his own account or on account of some person other than the judgment-debtor; and no question of title between the plaintiff and his judgment-debtors requiring the decree against them to be re-opened could possibly be adjudicated upon in such a proceeding. The joinder of the judgment-debtors was admittedly an irregularity. But the lower Appellate Court abstained, or apparent...
Tag this Judgment!Jehangir Rustomji Divecha Vs. Bai Kukibai and ors.
Court: Mumbai
Decided on: Jan-15-1903
Reported in: (1904)ILR27Bom182
Russell, J.1. The applicant is one of the executors named in the will of the deceased. Leave has been reserved to him to apply for probate.2. The point of law raised by Mr. Lowndes is a novel one as far as I have been able to discover, his argument being that the applicant has not an interest sufficient to support his citation. This involves the question as to what is the position of an executor in India.3. By Section 3 of the Indian Succession Act (X of 1865) 'executor' is defined as a person to whom the execution of the last will of a deceased person is, by the testator's appointment, confided. Section 179 of that Act, which agrees with the fourth section of the Probate and Administration Act (V of 1881) provides that 'the executor of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.' Section 179 applies to Parsis: see Parsi Succession Act (XXI of 1865), Section 8. The effect of Section 179 is to put the ...
Tag this Judgment!Sitaram Apaji Kode Vs. Shridhar Anant Prabhu and ors.
Court: Mumbai
Decided on: Jan-15-1903
Reported in: (1904)ILR27Bom189
Chandavarkar, J.1. The principal question of law argued in this second appeal is whether, where property is mortgaged to one person and that person subsequently dies, leaving two or more heirs jointly entitled to his estate, payment made by the mortgagor of the amount due on the mortgage, to one of those heirs, without the concurrence of the rest, amounts to a valid discharge to the mortgagor. The District Judge has held that it does, relying on the authority of the ruling of the High Court of Madras in Barber Maran v. Ramana Goundan (1897) 20 Mad. 461. That decision is based upon the English case of Wallace v. Kelsall (1840) 7 M. &. W. 264 and the last paragraph of Section 38 of the Indian Contract Act, which provides that 'an offer to one of several joint promisees has the same legal consequences as an offer to all of them.'2. So far as this Madras decision proceeds upon the English law, its correctness may well be doubted, having regard to the decision of Farwell, J., in Powell v. B...
Tag this Judgment!Balaji Narayan Gokhale Vs. Nana BIn Babaji Ghatge and ors.
Court: Mumbai
Decided on: Jan-13-1903
Reported in: (1904)ILR27Bom186
Chandavarkar, J.1. The principal ground on which the decision in this second appeal turns, and on which the District Judge has rejected the claim of the plaintiff for possession, is that the decree for foreclosure obtained by the plaintiff in March, 1890, in terms of an award is not binding on defendant 3 (Narahari) and defendant 4 (Dayanu) who were minors at the date of the award. It is found that the family to which these two defendants belonged consisted of themselves and their brothers, Ganu and Nans (defendant 1), when the reference to arbitration was made, and that Ganu and Nana were adult members of the family at the time. It is not contended, nor has the Districts Judge found, that in an undivided Hindu family consisting partly of minors, the manager of it has no right to refer any matters in dispute to arbitration even though such reference be for the benefit of the family. In Jagan Nath v. Mannu Lal (1894) 16 All. 231 Edge, C.J., held that as a father in a joint Hindu family ...
Tag this Judgment!Chintaman Nilkant and anr. Vs. Gangabai and ors.
Court: Mumbai
Decided on: Jan-09-1903
Reported in: (1904)ILR27Bom184
Chandavarkar, J.1. The first point urged in this appeal is that Gangabai having died and no legal representative of hers having been brought on record the appeal abated, and that, therefore the Appellate Court had no jurisdiction to deal with the decree passed against Gangabai.2. No doubt under Sections 362 and 582, Civil Procedure Code, the appeal abated so far as Gangabai was concerned, but under Section 544, Civil Procedure Code, Anpurnabai had a right to appeal independently of the provisions of Section 362 and 582 of the Civil Procedure Code, if her defence was common to her and Gangabai, and the mere fact of her having been joined with Gangabai would not take away her right to appeal. It was held in Chandarsang v. Khimabhai (1897) 22 Bom. 718, that 'decree having been passed against the defendants, it was open to any one of them to appeal against it if the ground of appeal was common to all defendants and it was open to the lower Appellate Court to deal with the appeal under Sect...
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