Mumbai Court September 1906 Judgments
Kalidas Lalbhai Vs. Tribhuwandas Bhagwandas
Court: Mumbai
Decided on: Sep-28-1906
Reported in: (1906)8BOMLR869
Louis P. Russell, Acting C.J.1. We have no doubt whatever in this case that the question, whether the document should have been stamped as an instrument of partition as defined in Section 2, Clause (15) of the Stamp Act, must be answered in the affirmative.2. It appears that one Bhagwandas Tapidas died in 1900 after having made a will and a codicil. He left behind him a son and two grandsons by a predeceased son. Then it appears that there were disputes between the son and the grandsons, and by a submission paper, the disputes were referred to arbitration, and it appears from that submission paper that Balvantrao Tripurshankar and Thakorram Kapilram were not to divide the property but to make an award.3. Accordingly they made their award; and the question that arises is, whether that award direcs a partition or not.4. Now with regard to that we have only to refer to the terms of the award itself.5. It begins by saying 'we divide as below. The parties should act accordingly.' It further...
Tag this Judgment!Emperor Vs. Nandeyappagowda Shiddangowda
Court: Mumbai
Decided on: Sep-26-1906
Reported in: (1906)8BOMLR851
Aston, J.1. In this case the Magistrate who tried and convicted the accused was satisfied on the evidence in the case that the accused set fire to some rubbish in his own field in such close proximity to a Government forest that he knew he was likely to cause destruction by fire to Government property, if he did not take precautions to prevent the spreading of the fire he had lit and he took no real precaution. The conclusions arrived at by the Magistrate on the statement of the accused himself, establish the offence of mischief. Under the definition of mischief in Section 425, Indian Penal Code, ' whoever with intent to cause or knowing that he is likely to cause wrongful loss or damage causes destruction of any property, commits mischief.' And under the explanation to that section it is sufficient if he knows he is likely to cause damage to any person by injuring any property. So that, even if we went into the facts, I see no reason to come to a different conclusion from that arrived...
Tag this Judgment!Emperor Vs. Punamchand Hirachand
Court: Mumbai
Decided on: Sep-25-1906
Reported in: (1906)8BOMLR847
Aston, J.1. In this case the Magistrate having decided to discharge the accused recorded at the same time that he ordered the discharge of the accused his conclusion that the case was one in which subject to any objection which the complainant might urge against making the direction, the complainant ought to be ordered to pay compensation for making a frivolous and vexatious complaint. Ha then, as the law requires, under Clause (a), Section 250 Criminal Procedure Code, recorded, and considered the objection which the complainant urged against making the direction and then under Clause (b) of that section added to his order of discharge a direction that the complainant pay compensation. We are asked to hold that this procedure was illegal because the Magistrate did not make the direction as to compensation a part of the order as to discharge before the complainant was given opportunity as required by law to adduce his objection to such direction being made. The case of Safdar Husain ILR...
Tag this Judgment!Raghavji Vizpal Vs. Narandas Parmanandas
Court: Mumbai
Decided on: Sep-25-1906
Reported in: (1906)8BOMLR921
Chandavarkar, J.1. This suit is brought by a firm trading under the name and style of Raising Amerchand for the declaration of a lien or charge upon five Government Promissory Notes, each of the nominal value of Rs. 1000, and upon all interest payable in respect thereof for the sum of Rs. 6124-7-9 and further interest due to the firm on account of moneys lent to the first defendant, Narandas Parmanandas. The plaintiffs also pray that the defendants may be ordered to indorse the said Notes so as to enable the plaintiffs to sell them and apply the sale proceeds towards satisfaction of the claim.2. The said Notes stand in the name of one Fulkore Bai, deceased, step-mother of the first defendant, as survivor of Parmanand Virji. The plaintiff's case is shortly this :-The plaintiffs having advanced Rs. 46,000 to the first defendant in March 1893, the latter as securities for the loan deposited the title deeds of his house in Bazar Gate Street, certain ornaments and the Notes in question. The...
Tag this Judgment!In Re: a Deaf and Dumb Man
Court: Mumbai
Decided on: Sep-20-1906
Reported in: (1906)8BOMLR849
Aston J.1. The summary mode in which the trial has been conducted seems to us to be inconvenient the case being one in which the accused was deaf and dumb. The record contains no indication that any attempt was made to find out whether the accused had any friends or relatives who were accustomed to communicate with him. The Magistrate should have made enquiries about his antecedents and ordinary mode of life and the manner in which he was communicated with in the ordinary affairs of life. This should now be done. A retrial will be necessary if it is found that the accused can be made to understand the proceedings. We accordingly order under Section 341 that the conviction and sentence be set aside and; the case must be re-tried by the Magistrate having regard to the above remarks....
Tag this Judgment!Pandurang Jaswant Vs. Sakharchand Malji
Court: Mumbai
Decided on: Sep-20-1906
Reported in: (1906)8BOMLR861
Beaman, J.1. This is a second appeal arising out of execution proceedings in the following circumstances. Sakharam was the original owner of a house and a Chawl. He mortgaged both to Sundrabai. Subsequently he mortgaged the Chawl only to Pandurang. Sundrabai sued on the mortgage, and got a decree for sale. Pandurang was not made a party to that decree. One day, before the day fixed for making that decree absolute, Pandurang filed a suit against Sakharam and Sundrabai praying as against Sundrabai for marshalling, and as against Sakharam for sale of his equity of redemption. The Court on this decreed that Sakharam should pay to Pandurang the full amount found due on his puisne mortgage, and as to Sundrabai the Court decreed that in execution of her mortgage decree she should sell first the house, and if the proceeds were insufficient to satisfy her claim, then the Chawl. Accordingly the house was sold first, and as it did not realize enough to pay off Sundrabai, the Chawl was next sold t...
Tag this Judgment!Narayan Ganpatbhat Vs. Timmaya Subhaya
Court: Mumbai
Decided on: Sep-19-1906
Reported in: (1906)8BOMLR807
Aston, J.1. Respondent No. 2 had before the passing of the decree in an original suit, become liable as surety for the due performance of part of the decree. The decree in the original suit was passed in January 1893. The first Darkhast application which was made to execute the decree under Section 253, Civil Procedure Code, as against the surety was in 1902.2. The appellant seeks to take advantage of the previous application for execution made as against the judgment-debtor in order to prevent the bar of limitation. Article 179, Expln. 1, para 2, sets out that 'where the decree or order has been passed jointly as against more persons than one, the ap-plication if made against any one or more of them, or against his or their representatives, shall take effect against them all. ' It has been argued that although the decree in question was not in fact passed jointly against the judgment-debtor and the surety, the appellant should be allowed to take advantage of this provision and to trea...
Tag this Judgment!Chunilal Maneklal Gandhi Vs. Kirpashankar Bhagwanji Vyas
Court: Mumbai
Decided on: Sep-18-1906
Reported in: (1906)8BOMLR838
Lawrence Jenkins, K.C.I.E., C.J. 1. Though several questions are raised in this suit and have been decided in the lower Courts, we think there is only one on which we ought to express an opinion ; and that is, whether the present suit lies?2. The acting District Judge has held that it does not, and he has come to that conclusion because in his opinion malice is necessary to such a suit, and he holds that there is no malice.3. The case appears to us to be one to which the language of Lord Chief Justice Abbot in Cullen v. Morris (1819) 2 Sta. 577 is peculiarly applicable. It may be said here, as it was said there, thatthe Officer is to a certain degree a ministerial one but he is not so to all intents and purposes; neither is he wholly a judicial Officer, his duties are neither entirely ministerial nor wholly judicial, they are of a mixed nature. It cannot be contended that he is to exercise no judgment no discretionwhatsoever... the greatest confusion would prevail if such a discretion ...
Tag this Judgment!Tyeb Beg Mahomed Vs. Allibhai Mangalji
Court: Mumbai
Decided on: Sep-18-1906
Reported in: (1906)8BOMLR803
Lawrence Jenkins, K.C.I.E., C.J.1. This application arises out of proceedings under Chapter VII of the Presidency Small Cause Courts Act.2. An order was made under that Chapter in favour of the opponent before us.3. The applicant before us on the 17th of April applied for a rule to show cause why that order should not be set aside on the ground that he was not served with a summons before the order was passed.4. A rule was granted but it was subsequently discharged by the Fourth Judge of the Small Cause Court.5. From the memo, now furnished to us, the learned Judge represents that he was influenced, first, by the opinion held by him in deference to previous decisions in the Small Cause Court that Section 108 of the Civil Procedure Code did not apply; secondly, that even if Section 108 applied, any order by him would be infructuous; and thirdly, that the Court, not being a Court of Record, had not power to set aside an ex parte order, even though it was wrongfully obtained.6. This last ...
Tag this Judgment!Bhimrao Ramrao Vs. Ayyappa Yellappa
Court: Mumbai
Decided on: Sep-18-1906
Reported in: (1906)8BOMLR858
Aston, J.1. The order under appeal was passed on the 25th February, 1899, in execution proceedings. The proper remedy of the party not satisfied with that order was to appeal to the District Court: Gowri v.Vigheahvar I L R (1982) 17 Bom. 49. The period of limitation for such an appeal, as provided by the Limitation Act, is thirty days. The proceeding actually taken by the present appellant was however a suit filed on the 24th February, 1900, and on the 30th September, 1903, it was decided, in the first appeal in that suit, by the District Judge that the suit was barred by Section 244, Civil Procedure Code, i.e., it was pointed out to the appellant, in this very litigation, that he had gone to a wrong Court and taken wrong proceedings.2. Nevertheless the appellant, instead of taking the right course and appealing at once from the order of 25th February 1899, waited until the 4th January 1904, when he filed in the District Judge's Court his appeal against that order. He also appealed to ...
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