Court : Mumbai
Reported in : (1907)9BOMLR247
Batty, J.1. It does not appear whether the notice issued in this case was issuedunder Section 131 Ors. 135 District Municipal Act, (Bombay Act III of 1901). If it was issued under the former section which provides a penalty, Section 155 would not apply. That section might apply if the notice were under Section 135. The notice does not mention the section under which it was intended to be issued. If the notice was issued under Section 131, the opinion of the Municipality that the vegetation was rank and noisome would be an insufficient ground for conviction, since Section 131 renders the owner liable for non-compliance, not when the Municipality considers vegetation to be rank or noisome, but only when the vegetation is actually so. Thus before a conviction could be had for non compliance with a notice under Section 131 the prosecution would have to establish affirmatively the objectionable character of the vegetation. In the present case no such evidence appears to be on the record. Le...
Tag this Judgment!Court : Mumbai
Reported in : (1907)9BOMLR254
Batty, J.1. The question in this appeal is whether Ex. 22 was compulsorily registrable or not and whether, if compulsorily registrable, it was admissible in evidence under Section 49 Of the Registration Act, III of 1877. The decisions relied on by the lower appellate Court no doubt indicate that mere recitals of past transactions, if not operative in themselves, would not be compulsorily registrable under Section 17, Clause (b) and it is not now disputed that instruments acknowledging receipt of money paid in satisfaction of such a right as is referred to in Clause (b) and not acknowledging receipt of moneys paid as the consideration for the extinction of such a right by a new act of will, would not be compulsorily registrable. Similarly endorsements or receipts acknowledging satisfaction of a mortgage by the payment of the whole mortgage money, would not be compulsorily registr able under Clause (n) of the same section. But that Clause indicates that an operative instrument which not ...
Tag this Judgment!Court : Mumbai
Reported in : (1907)9BOMLR229
Batty, J.1. The arcused are eartmen employed to carry hemp and have been convicted of criminal breach of trust in respect 1907 of hemp entrusted to them as carriers.2. To establish the essential elements of such offence it would have been necessary to show at least that some of the property entrusted to them could not be accounted for by them. But no Parabhu evidence admittedly has been adduced to show shortage in their Batty J. deliveries and therefore the corpus delicate is not established. The letters said to have been received from persons not called as witnesses, were not admissible in evidence at all. The fact that a considerable quantity of hemp was found in the possession of the accused may no doubt give rise to grave suspicion in the circumstances, but inasmuch as it has not been proved that any hemp belonging to the complainant was stolen, or that the hemp found in the possession of the accused was hemp belonging to the complainant no presumption against the accused can be le...
Tag this Judgment!Court : Mumbai
Reported in : (1907)9BOMLR370
Davar, J.1. This is an Originating Summons taken out by Mr. Nanu Narayan Kothare, the sole surviving executor of and trustee under the will of, the late Chanda Ramji against the Advocate-General of Bombay wherein he prays for sanction of the Court to divert a portion of the residue of the estate dedicated under the will of his testator to the 'Nek Sewa' of the Thakorji to more useful charitable purposes as he finds that the residue is far larger than is necessary for the efficient performance of the 'Neok Sewa.' He also asks for sanction to certain other proposals for the sale and purchase of property more fully set out in the plaint.2. On the argument of the summons the Advocate-General appeared before me in person and he signified to me his approval of all the proposals made in the plaint and did not suggest any modifications. Since the matter was argued before me I have had the decree in the previous suit, referred to in the course of the argument, placed before me. That decree is a...
Tag this Judgment!Court : Mumbai
Reported in : (1907)9BOMLR252
Batty, J.1. In this case it lay on the appellant to establish affirmatively that the divorce was valid under the Mahomedan law. The Judge who tried the case, decided it on an appreciation of evidence which we do not feel it necessary to discuss For it appears to us that the talak was ineffectual in this particular instance to deprive the wife of her right to inherit, even if the evidence of witnesses to the ceremony be accepted as credible. The Judge observed that the requirements of Mahomedan law are so vague and undefined that he docs not feel justified in saying that Naser was suffering from a death-bed illness at th time of the first talalc. The most recent decision which deals with the essentials or the Marz-ul-mant affecting a talak or a gift, is that of Sarabai v. Rabiabdi I L R (1905) 30 Bom. 537., which follows the case of Fativia Bibeex. Ahmad Baksh I L R (1903) Cal. 319. Three tests are there laid down as to whether illness is to be regarded as death-bed illness. The first c...
Tag this Judgment!Court : Mumbai
Reported in : (1907)9BOMLR165
Chakdavarkar, J.1. The question in this appeal is, whether the appellant, who is a registered holder of one share of the respondent Bank, has, as such, the right to inspect its register of share-holders. Scott J., by whom the appellant's suit for a declaration of the right and an injunction was heard, has dismissed the claim, on the ground that at the date of the suit there was no 'specific dispute or question depending,' in which the appellant was interested, to entitle him to the inspection, but that his sole object was 'to cause annoyance to the Bank officials and particularly to Ahmedbhoy Hubibbhoy, who is one of the directors.'2. Before us, as it was before Scott J., the appellant's case has been put upon the ground of a common law right possessed by every member of a corporate body. According to Section 4 of Act XI of 1876, the respondent Bank is a body corporate, possessing and enjoying 'all the rights, powers and immunities incident by law to a Corporation aggregate, subject ne...
Tag this Judgment!Court : Mumbai
Reported in : (1907)9BOMLR208
Lawrence Jenkins, C.J.1. The question arising on this rule is whether the Small Cause Court can take action under Section 38 of the Presidency Small Cause Act, 1882, in reference to an order passed in a proceeding under Chapter VII of that Act. Section 38 defines the condition on which the Small Cause Court has jurisdiction: it is 'where a suit has been contested, ' and according to the explanation to the section ' every suit shall be deemed to be contested in which the decree is made otherwise than by consent of or in default of appearance by the defendant.'2. In this ease the Full Court has held that the condition has not been satisfied and this is in accordance with the view that has prevailed in that Court for the last two or three years.3. Throughout the Act a distinction is drawn between a suit and a proceeding (see e. g. Sections 14, 69, 71, 72, 73, 74 and 76) and the language of the explanation to Section 14, added by Act 1 of 1895, Section 6, assumes that a proceeding under Ch...
Tag this Judgment!Court : Mumbai
Reported in : (1907)9BOMLR143
Davar, J.1. The plaintiffs in this case are a firm of Marwarry money lender's. The defendant William Gillespie is described in the plaint as manager of the Money Order Department, General Post Office, Bombay.2. The suit was heard ex parte, before me last Tuesday as a Short Cause. The plaintiff Poma Dongra, in the course of his evidence stated that on the previous Tuesday, when the suit was on board, the defendant was in Court and asked him for time to pay, that he refused to give time and the defendant left saying he would file his petition in insolvency, that the suit was subsequently O.C.J. called on but was adjourned because affidavit of service had not, 1907 then been filed.3. In their plaint the plaintiffs state that on the 19th of July 1904 Poma they lent to the defendant Rs. 500 and the defendant executed Gillespie a promisory note promising to repay the sum with interest at- one anna per Rupee per mensem. This works out the rate of Davar J. interest at 75 per cent per annum.4. ...
Tag this Judgment!Court : Mumbai
Reported in : (1907)9BOMLR225
Batty, J.1. The question whether the District Magistrate's order directing the commitment of this case to the Sessions should be set aside depends mainly upon the construction that is to be placed on the words of Section 210, Criminal Procedure Code. That section requires that a charge should be framed and commitment made only when the Magistrate is satisfied that there are sufficient grounds for committing. It is urged that this phrase is tantamount to the language used in Queen Empress v. Namdev Satvaji I L R (1887) 11 Bom. 372 and Empress v. Varjivandas I L R (1902) 27 Bom. 84 : 4 Bom. L.R. 779, which, according to the contention for the Crown, implies that there are sufficient grounds when the facts alleged by witnesses would suffice for the conviction if those witnesses were believed. The language in both those judgments, however, requires that the witnesses should be credible. We think, with reference to the wording of the present Code, a Magistrate can hardly be said to be satis...
Tag this Judgment!Court : Mumbai
Reported in : (1907)9BOMLR244
Batty, J.1. We are unable to accept the view taken by the Fourth Presidency Magistrate that the word 'residing' or 'resident'' should be interpolated in Section 110, Criminal Procedure Code, between the words 'any person' and 'within.' It seems to us that the Legislature has advisedly adopted the particular phrase used, to exclude the necessity of proving anything approaching permanent residence and to leave it in the power of the Magistracy to deal with what are perhaps the mostdangerous habitual criminals who wander from place to placeand have no well-known residence where the police or theMagistracy could be sure at any time of finding them.2. We also think that the Presidency Magistrate, not having disbelieved the evidence adduced before him, ought not to have discharged the persons brought before him on the ground that that evidence was insufficient or vague for the purposes of Section 110, Criminal Procedure Code. It is thoroughly established by the evidence, if credible, as the ...
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