Mumbai Court November 1907 Judgments
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Jamsedji Manekji Kotwal Vs. Haria Daya
Court: Mumbai
Decided on: Nov-28-1907
Reported in: (1908)10BOMLR18
Lawrence Jenkins, C.J.1. This is a suit for an injunction. It has been decided by the District Court that the suit must fail as being barred by Section 244 of the Civil Procedure Code, The bar is said to arise out of the fact that the vendor to the present plaintiff, of the land sought to be protected by the. injunction, obtained in another suit an injunction to the effect now sought.2. Therefore it is said the plaintiff's remedy is not by way of suit but of execution of the former decree.3. The Judge of the-lower appellate Court- appears to rely on Sections 372, 647 and 244 of the Civil Procedure Code. Mr. Mehta has felt that he could not support the decree on that ground. So he has had recourse to Section 232, but at the outset he is met with the difficulty that there has been no transfer of the decree.4. An injunction does not run with the land and therefore there is, in our opinion, in the circumstances of this case, no bar to the plaintiff's' suit.5. The order must, therefore, be ...
Emperor Vs. Kashia Antoo
Court: Mumbai
Decided on: Nov-23-1907
Reported in: (1908)10BOMLR26
Russell, J.1. The point of law which arises in this case does so under the following circumstances.2. The accused Basir Shaik Hassan, a Mahomedan, was found guilty by a Common Jury of offences under Sections 379 and 114 of the Indian Penal Code of theft and the abetment thereof as in Section 114. It appears that the accused when a juvenile was found guilty of theft on the 21st October 1902 and was then sentenced to whipping, and the question now is whether that previous conviction can be put-in evidence against him now. This question depends upon the correct construction to be placed upon Section 75.75. Whoever having been convicted of an offence punishable under Chapter XII or Chapter XVII of this Code with imprisonment of either description for a term of three years or upwards shall be guilty of any offence punishable under either of those chapters with imprisonment of either description for a term of three years or upwards, shall be subject for every such subsequent offence to crans...
In Re: Dalsukhram Hurgovandas
Court: Mumbai
Decided on: Nov-21-1907
Reported in: (1907)9BOMLR1347
1. We think that the objection raised by the learned Government Pleader in showing cause against this rule is sound and must be allowed. Under Section 86 of the District Municipal Act, a Magistrate hearing an appeal of the kind mentioned in the section is merely an appellate authority having jurisdiction given by the Act to deal with the question of a civil liability. He is therefore not 'an inferior Criminal Court' to which alone our revisional jurisdiction under Section 435 applies. For these reasons we must discharge the rule in both the applications....
Mussummat Waliha Vs. Jogeshwar Narayan
Court: Mumbai
Decided on: Nov-20-1907
Reported in: (1908)10BOMLR9
Robertson, J.1. Their lordships are of opinion that this action ought to have been dismissed with costs, and that therefore this appeal should be allowed.2. The suit was one of the simplest and most plain-sailing character, alike in the ground of action and the decree sought. The plaintiffs (the present respondents) claimed to have possession of their mother's property on the ground that she was dead. The Courts held that it was not proved that the lady had died (and indeed there was positive evidence that she was alive). The inevitable inference would seem to be that the suit should be dismissed. The Court which tried the case, however, had very naturally, tried the whole case at once and had to deal with some questions as to the paternity of the plaintiffs, and also as to the validity of certain gifts by the mother. These, however, were merely argumentative steps towards the only decree sought, viz., possession; they were not presented by the plaintiffs as separate and substantive qu...
Bibi Phul Kumari Vs. Ghanshyam Misra
Court: Mumbai
Decided on: Nov-19-1907
Reported in: (1908)10BOMLR1
Robertson, J.1. The sole question in this appeal is what is the proper Court-fee payable on the plaint in the suit. The Act governing the question is the Court-Fees Act (VII of 1870). Proceeding on the theory that what was due was Rs. 20, the appellant stamped her plaint accordingly: her suit was dismiss-ed in the Court of first instance on the ground that her plaint was insufficiently stamped; and this judgment was affirmed by the High Court of Bengal in the judgment now appealed against. The present appeal has been heard ex parte.2. For the right determination of the question at issue it is necessary to ascertain what are the object and the nature of the suit. Now, fortunately, this is not dubious. The plaintiff succinctly and accurately states that the cause of action accrued on 24th April 1899, that being the date of a judgment pronounced against her in the Court of the Subordinate Judge of Purneah in certain execution proceedings. What had taken her into that Court was this : she ...
Raja Gokuldas Vs. Sheth Ghasiram
Court: Mumbai
Decided on: Nov-19-1907
Reported in: (1908)10BOMLR144
Robertson, J. 1. Their Lordships hare examined the decisions of his Board relied upon by the appellants (Maharajah of Bharatpur v. Ram Kanno Dei (1900) L.R. 28 1. A. 35 Rani Sunder Koer v.Rai Sham Krishen (1906) L.R.31 IndAp 9 and find that they fully sustain the contention of the appellants. They will therefore humbly advise His Majesty that the appeal ought to be allowed, the judgment of the Additional Judicial Commissioner reversed with costs and the Order of the Civil Judge restored....
In Re: Dorabji Cursetji Shroff
Court: Mumbai
Decided on: Nov-17-1907
Reported in: (1908)10BOMLR675
Macleod, J.1. By several declarations appearing in the Bombay Government Gazette-of the 21st September 1905, the 5th October 1905, the 12th October 1905, and the 21st December 1905 respectively-under Section 6 of the Land Acquisition Act (I of 1894) the Local Government notified its intentions of acquiring a large quantity of land at Sewree at the expense of the trustees of the Bombay Port Trust for the purposes of sites for Bulk Oil Installations and other trade purposes. It appears that the Port Trust required an area of nearly three lacs of square yards situated in the Sewree district within the red line shown on the plan Ex. 9. The land roughly forms a square. The smaller plots on the West South and East side were cultivated, the rest were either waste or used for salt pans. Exhibit No. 1 is a plan showing the levels of the ground at the time of acquisition and on that plan Mr. Savile, Deputy Engineer of the Port Trust, marked with a blue pencil the area under the level of 89' 2' T...
Emperor Vs. Somabhai Nathabhai
Court: Mumbai
Decided on: Nov-14-1907
Reported in: (1907)9BOMLR1346
1. The learned Magistrate, First Class, has erred in law in deciding the case without taking evidence. He says 'there is no reason to take evidence because the facts are admitted' that make the accused out to have been members of an unlawful assembly. An accused person may admit some or even all of the facts alleged by the prosecution, but if he pleads not guilty, the Court trying him is bound to proceed according to law by examining the witnesses and giving an opportunity to the accused to cross-examine the witnesses for the prosecution and adduce his own evidence. In the present case the accused not only denied the charge in the complaint but appears to have admitted only some of the allegations of the prosecution. That is what we gather from the learned Magistrate's judgment, They have had no trial at all but have been convicted without being heard according to law. We reverse the convictions and sentences and direct the Magistrate to hold a trial according to law....
Bai Fatmabai Vs. Gulam Husen
Court: Mumbai
Decided on: Nov-14-1907
Reported in: (1907)9BOMLR1337
Russell, J.1. This suit was filed by Bai Fatmabai widow of Ebrahim Hassam Mansur deceased against the first four defendants the executors of his will and the second four defendants as his sons and the 9th defendant his daughter and the 10th defendant the Advocate General of 'Bombay, by amendment inter alia to have Clauses 3 and 7 of his will dated the 9th of January 1905 construed by this Court and the shares of the said deceased's heirs ascertained and declared and further and other relief.2. The said deceased was a Sunni governed by Hanafi as was admitted.3. He died on the 11th February 1905, leaving him surviving the parties to the suit other than the Advocate General.4. Clause 7 of his will which I first deal with runs as follows:-7. As to whatever immoveable and moveable properties may remain after my death, after the expenses shall have been deducted and the compartment of the above mentioned shop shall have been sold, out of the same my said heirs are to divide and take, the mov...
Purshottam Narayan Joglekar Vs. Balvant Babaji Gurav
Court: Mumbai
Decided on: Nov-01-1907
Reported in: (1908)10BOMLR13
Heaton, J.1. This reference has been made by the Judge of the Court of Small Causes in Poona in the course of execution proceedings wherein the judgment-creditor caused to be attached three casks of country-liquor which were in the judgment-debtor's shop. These casks were removed to the Court-house and it was presumably the intention of the judgment-creditor to have them sold.2. The Collector at Poona intervened, his intervention taking the form of letters addressed to the Judge. He stated that the liquor should not have been removed without a transport or permit from his office, that it could not be sold without a permit under the Abkari Act, and that the purchaser could not remove it without a permit which the Collector stated he did not intend to give, and he asked that attachment might be removed.3. This has caused the Judge of the Court of Small Causes to feel doubt as to the answers to the following two questions which he has referred to this Court:-1st. Whether country liquor is...
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