Mumbai Court December 1905 Judgments
Emperor Vs. Sakharam Ganu
Court: Mumbai
Decided on: Dec-23-1905
Reported in: (1906)8BOMLR120
Lawrence Jenkins, K.C.I.E., C.J.1. The accused was charged under Section 376 of Indian Penal Code with the rape of a girl.2. He was convicted by the first Court.3. On appeal to the Sessions Judge, that conviction was set aside on the ground that the girl had consented.4. The Sessions Judge, however, convicted the accused under Section 366 and passed sentence on him.5. In our opinion it was wrong of the Judge to have proceeded under Section 366 because a charge under that section involved different elements and different questions of fact from a charge under Section 376.6. On the ground, therefore, that there has been an irregularity in the procedure of the Sessions Judge, we set aside his order except so far as it involves an acquittal under Section 376.7. But we express no opinion as to further proceedings being taken under Section 366 or 497.8. The accused is, therefore, discharged and the fine, if paid, must be refunded....
Tag this Judgment!In Re: Manekji Cawasjee
Court: Mumbai
Decided on: Dec-20-1905
Reported in: (1906)8BOMLR85
Chandavarkar, J.1. The applicants claim as mortgagees of the insolvents and an order has been made at the instance of one of the opposing creditors for their examination as witnesses, under Section 36 of the Indian Insolvency Act. Mr. Davar, appearing for them, prays that the order should be set aside, upon the ground that the object of the examination is not any benefit to the insolvents' creditors or estate but simply to obtain information regarding the title of the applicants so as to enable the opposing creditors through the Official Assignee to utilise it against them in a suit which is threatened. The learned Advocate General, who appears for the opposing creditor, disputes Mr. Davar's locus standi on the ground that a person, for whose examination as a witness an order has been made under Section 36, has no right to object to it. In support of his contention the learned Advocate General relies upon the decision of this Court in In the matter of Nursey Kessowji ILR (1879) 3 Bom. ...
Tag this Judgment!In Re: Mowjee Liladhar
Court: Mumbai
Decided on: Dec-19-1905
Reported in: (1906)8BOMLR32
Aston, J.1. In case No. 371/S. of 1905, in the Court of the Second Presidency Magistrate, Mowji Liladhar charged Tulloeksey Thackersey with criminal breach of trust in respect of hundis alleged to have been given to him by complainant Mowji as master of Tullocksey, and charged Likhawdas with abetment of the said alleged offence.2. The Second Presidency Magistrate who tried the case came to the conclusion that the charges were false and made out of malice and wero supported by Mowji and a witness Murarji by perjury.3. The Second Presidency Magistrate sanctioned the prosecution of Mowji for offences under Sections 211 and 195, Indian Penal Code and of Murarji under Section 195, Indian Penal Code the perjury alleged being their evidence in the case. to the effect that Tullocksey was employed as a Moonim (in this new business or in the firm) on a salary of Rs. 600 a year. Besides according sanction as above the Second Presidency Magistrate ordered Mowji and Murarji to be sent to the Court ...
Tag this Judgment!Shaw Wallace and Co. Vs. Gordhandas Khatao
Court: Mumbai
Decided on: Dec-18-1905
Reported in: (1906)8BOMLR56
Lawrence Jenkins, K.C.I.E., C.J.1. The principal question in this appeal is as to the power of the Court to receive this suit. The plaintiffs are Messrs. Gordhandas Khatao and Mulraj Khatao and Mr. N.C. Macleod the Official Assignee and Assignee of the estate and effects of certain traders, who until recently carried on business under the name and style of Vishram Ebrahim & Co.2. The defendants are described in the heading to the plaint as ' The firm or partnership of Shaw Wallace & Co. as it was constituted on the 13th September 1898 and the partners in the said firm on that date. '3. According to the allegations in the plaint the first and second plaintiffs and Vishram Ebrahim & Co. on the 22nd August 1898 entered into an agreement with the defendants, Shaw Wallace & Co., who committed a breach of the agreement entitling the plaintiffs to sue them in respect thereof. In the 16th para of the plaint it is alleged, the defendants carry on business in Bombay. Part of the cause of action ...
Tag this Judgment!Hemchand Devchand Vs. Sakarlal Chhotamlal
Court: Mumbai
Decided on: Dec-18-1905
Reported in: (1906)8BOMLR129
Arthuh Wilson, J.1. The first of these appeals arises out of a suit instituted in the Court of the Assistant Political Agent of Sorath Prant in Kathiawar (the term Prant meaning an administrative district). The grounds of the plaintiff's claim, so far as it has now to be noticed, were that in February 1893 he had advanced money to the late Darbar Shri Vala Naja Manaiya, a shareholder in the Chief ship or Talukdari of Jetpur Chital in Kathiawar, for the purpose of paying off debts due by the latter, who was a talukdar of the sixth class, and that the plaintiff had acquired possession ; that Vala Naja died in May 1901; and that the plaintiff's rights as mortgagee had been interfered with or threatened by the nominal defendant as manager for the substantial defendants, the successors of the deceased Chief. The plaintiff prayed for a declaration of his rights and an injunction. In effect therefore the suit was one to enforce a mortgage made by a deceased Chief against his successors. The A...
Tag this Judgment!Narayan Bhagwant Vs. Shriniwas Trimbak
Court: Mumbai
Decided on: Dec-14-1905
Reported in: (1906)8BOMLR226
Lawrence Jenkins, K.C.I.E., C.J.1. This is a suit brought to recover two years' arrears of income, and the defence is that the plaintiff is not entitled to that income.2. The plaintiff bases his right on an adoption by Rangoobai in 1903. Rangoobai was married to Trimbuk. Trimbuk had a brother Appa with whom he was joint. Appa died on the 12th of January 1880. Trimbuk disappeared in 1868.3. It is therefore necessary to determine whether Trimbak predeceased Appa. For, if so, then, according to the defendants' contention, the adoption will be invalid.4. The lower appellate Court has held that it is not proved that Trimbak did predecease Appa.5. Exception is taken to that finding ; it is contended that it is in contravention of the provision of Section 108 of the Evidence Act, and in disregard of the evidence in the case.6. We are clearly of opinion that it cannot be said that the Judge has disregarded any evidence. We therefore have merely to consider whether the Judge was bound, as a mat...
Tag this Judgment!Sarabai Vs. Rabiabai
Court: Mumbai
Decided on: Dec-09-1905
Reported in: (1906)8BOMLR35
Batchelor, J.1. The plaintiff, who is a Mahomedan lady named Sarabai, was formerly the wife of the deceased Haji Adam Haji Sidick, a Cutchi Memon Mussulman, and now brings this suit against the estate for maintenance and residence as his widow. By an amendment of the plaint she has also put forward an alternative claim based upon the will of the deceased Adam. The defendants are a widow and daughter of Adam and the executors appointed by this will. They resist the claim on the ground that the plaintiff was validly divorced by Adam according to Mahomedan Law. Upon this point the plaintiff's case is that she has no knowledge of any such divorce and that if in fact she was divorced, then the divorce is invalid under Mahomedan Law.2. The following are the issues on which the parties went to trial:-1. Whether the plaintiff was validly divorced by the deceased?2. If so, whether she is entitled to maintenance and/or residence and/or any right under the will ?3. If she is entitled to maintenan...
Tag this Judgment!Vithu Govinda Vs. Ramji Yelluji
Court: Mumbai
Decided on: Dec-05-1905
Reported in: (1906)8BOMLR19
Lawrence Jenkins, K.C.I.E., C.J.1. This case comes before us by way of revision under our general jurisdiction from a decision of a Mamlatdar who is said to have committed a material error in procedure in that he disregarded provisions of Section 11 of the Indian Oaths Act 1873.2. The principal question at issue in the suit was what he the plaintiff or the defendant was in possession.3. It has been decided by a Full Bench decision of the High Court in Calcutta in Maniram Deb v. Debi Charan Deb (1869) 4 B. L.R. 97 that ' a statement by a witness that a party is in possession is in point of law, admissible evidence of the fact that such party was in possession '; and if it is evidence of the fact, then under s' 11 of the Oaths Act it is conclusive proof of the matters stated.4. What the meaning of 'conclusive proof' is for the purpose of the Evidence Act is laid down in Section 4 of that Act, where it is said : ' When one fact is declared by this Act to be conclusive proof of another, th...
Tag this Judgment!Emperor Vs. HusseIn Noor Mahomed
Court: Mumbai
Decided on: Dec-05-1905
Reported in: (1906)8BOMLR22
Lawrence Jenkins, K.C.I.E., C.J.1. The accused in this case have been convicted as being persons found playing for money against the provisions of Section 12 of the Bombay Prevention Gambling Act 1887 in a railway carriage forming part of a through special train running between Poona and Bombay.2. The only question is whether it was in a public place that the accused were so playing. This depends on the meaning the word 'place' has in Section 12 of the Act. The word 'place' is, I think, qualified by the word 'public' and having regard to its context and its position in that context, it must, in my opinion, mean a place of the same general character as a road or thoroughfare, else it was pointle (sic) to use the words street or thoroughfare as they are there used To the Railway track as such the public have no right of access except as passengers in the Company's train. Therefore I need not seriously consider the suggestion that the accused were found playing in a public place, because ...
Tag this Judgment!Shivlingappa Basappa Vs. Chanbasappa Fakirappa
Court: Mumbai
Decided on: Dec-01-1905
Reported in: (1906)8BOMLR16
Lawrence Jenkins, K.C.I.E., C.J.1. The plaintiff sues to obtain possession of a house, alleging a sale-deed executed in his favour by defendant No. 1.2. The first Court held the sale deed not proved.3. The lower appellate Court did not go into that question, but considered that Section 305 of the Civil Procedure Code, furnished an answer to the suit.4. From that decision the present appeal is preferred.5. As the lower appellate Court came to no finding on the issue whether or not the plaintiffs sale deed was proved, we must deal with this appeal as though the sale-deed had been proved.6. Prima facie, a sale-deed executed by one person in favour of another operates to convey to that other the interest of the executant in the property the deed purports to pass. But to prevent frauds on decree-holders it is provided by Section 276 of the Civil Procedure Code that 'when an attachment has been made by actual seizure or by written order duly intimated and made known in the manner aforesaid, ...
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