Mumbai Court March 1907 Judgments
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Shidlingappa Ganeshappa Vs. Hirasa Tukasa
Court: Mumbai
Decided on: Mar-19-1907
Reported in: (1907)9BOMLR542
Lawrence Jenkins, C.J.1. The question that arises on this appeal is, whether a defendant can plead his own fraud as an effective answer to a claim to immoveable property conveyed by him to a benamidar.2. Hirasa, the second defendant, on May the 24th, 1890, executed in favour of one Hanmantsa a sale-deed of the property in suit. On the 3rd of March 1892 Hanmantsa executed in favour of the plaintiff's father a sale-deed of the same property.3. In 1899 the property was attached in execution of a money decree passed against Hirasa, but on an application presented by the plaintiff's father the attachment was raised in deference to the title apparently created by the sale-deeds.4. The plaintiff has now brought this suit to recover the property on the strength of his title under the sale-deeds and he is met by the defendant's plea that those documents were part of a benami transaction whereby it was intended to shield Hirasa's property from his creditor.5. This intention is established, the f...
Shripati Kundlik Vs. Piraji Pattoji
Court: Mumbai
Decided on: Mar-19-1907
Reported in: (1907)9BOMLR1018
Lawrence Jenkins, C.J.1. In our opinion the decree under appeal should be reversed.2. It is erroneous to speak of Piraji as a person other than the judgment-debtor. He is the judgment-debtor and none the less so because he may have acquired an interest subsequent to the date of the decree passed against him; and it appears to us that the only question is whether Piraji can rely on his new title as an answer to the plaintiff's claim for possession. We think he cannot, for, the defendant has, on the facts found, by availing himself of his position as Khatedar, gained an advantage in derogation of the rights of the plaintiffs.3. In the circumstances we are of opinion that no sufficient ground is made out for restoration of the land to Piraji.4. We, accordingly, reverse the decree and dismiss the plaintiffs' application with costs throughout....
Sidlingappa BIn Ganeshappa and ors. Vs. Hirasa BIn Tukasa
Court: Mumbai
Decided on: Mar-19-1907
Reported in: (1907)ILR31Bom405
Lawrence Jenkins, C.J.1. The question that arises on this appeal is, whether a defendant can plead his own fraud as an effective answer to a claim to immoveable property conveyed by him to a benamidar.2. Hirasa, the 2nd defendant, on May the 24th, 1890, executed in favour of one Hanmantsa a sale-deed of the property in suit. On the 3rd of March 1892 Hanmantsa executed in favour of the plaintiffs' father a sale-deed of the same property.3. In 1899 the property was attached in execution of a money decree passed against Hirasa, but on an application presented by the plaintiffs' father the attachment was raised in deference to the title apparently created by the sale deeds.4. The plaintiff has now brought this suit to recover the property on the strength of his title under the sale-deeds, and he is met by the defendant's plea that those documents were part of a benami transaction whereby it was intended to shield Hirasa's property from his creditor.5. This Intention is established, the fra...
Damodar Nandram Vs. Panalal Madiram
Court: Mumbai
Decided on: Mar-18-1907
Reported in: (1907)9BOMLR540
Lawrence Jenkins, C.J.1. This is an appeal from an order which is expressed to be an attachment of property before judgment by the appointment of a receiver.2. So far as it is expressed to be an attachment presumably the order was passed under Section 483 of the Civil Procedure Code and it appears to us that in this respect the order was erroneous; because that section provides for the attachment of the property of the judgment-debtor; and it is common ground here that this is not the property of the judgment-debtor but is joint property of the partnership.3. This objection however does not apply to the appointment of a receiver which is the proper order to make in a case of this kind and it seems that the provisions of Section 505, Civil Procedure Code, have been complied with.4. There is one irregularity to which we wish to draw attention because it is of common occurrence and it is that the affidavit does not comply with Section 196 of the Civil Procedure Code, Thatsection provides ...
Meghbai Vs. Poonjabai
Court: Mumbai
Decided on: Mar-16-1907
Reported in: (1907)9BOMLR475
Davar, J.1. The plaintiff in Suit No. 458 of 1905 filed this petition praying that she may be allowed to continue this suit in forma pauperis. The matter was fully heard by the Prothonotary who, after recording evidence, delivered judgment on the 5th of February last, refusing to give leave to the plaintiff to continue the suit in forma pauperis. On the 19th of February the petitioner's attorney applied to me in chambers under Rule 80A1 to have the matter adjourned to me. I directed notice of this application to be given to the defendant's attorneys. On the 23rd of February last I heard the defendant's attorney and then made an order adjourning the matter to the Judge in chambers. The matter was fully argued before me on the 4th of March 1907 by Mr. Thakordas for the petitioner and Mr. Jamietram for the respondents. When adjourning the matter into chambers I gave directions at the request of the defendant's attorney to the plaintiff's attorney to file in the Prothonotary's office the g...
Amthalal Bhagvandas Vs. Cursetji Dhanjisha
Court: Mumbai
Decided on: Mar-14-1907
Reported in: (1907)9BOMLR466
Davar, J.1. In this suit a decree for Rs. 2171-10-G and costs and further interest on judgment was passed by Mr. Justice Candy on the 5th of March 1895 against both the defendants. The decree is partly satisfied by payment to the plaintiff of a sum of Rs. 600 which had been paid into Court and of a further sum of Rs. 1200 paid by the 1st defendant to the plaintiff subsequent to the date of the decree. The plaintiff now desires to execute the decree for the unpaid balance against the 2nd defendant. He has obtained a notice from the Prothonotary under Section 248 of the Civil Procedure Code calling upon the 2nd defendant to show cause why the decree should not be executed against him. This notice was first argued before me in Chambers on the 16th of February 1907 when Mr. Inverarity on behalf of the 2nd defendant showed cause against the notice. Erom the affidavit of the 2nddefendant, affirmed onthe7th of February 1907, it appears that in November 1890 one of the creditors of the 2nd def...
Bai Jina Vs. Jina Kalia Kharwa
Court: Mumbai
Decided on: Mar-14-1907
Reported in: (1907)9BOMLR451
Chandavarkar, J.1. It is common ground between the parties to these two second appeals, preferred against the decree of the District Court, at Broach, that they belong to the Kharwa community of Mahomedans, which has formed itself into a caste. The respondent, who is the husband of the first appellant, sued her in the Court of the Second Class Subordinate Judge at Broach, for restitution of conjual rights. The appellant resisted the claim upon the ground that the respondent had been excommunicated by the community to which they belonged and that until he should get himself re-admitted into it, she should not be compelled by the Court to go and live with him as his wife. The Subordinate Judge, having found the excommunica tion proved, allowed the appellant's defence and passed a conditional decree in favour of the respondent in these terms :-The appellant 'do return' to the respondent 'and live with him as his wife' but 'that as a condition precedent to the execution of the decree' the ...
Emperor Vs. Rustomji J. Ghorkhodu
Court: Mumbai
Decided on: Mar-13-1907
Reported in: (1907)9BOMLR363
Chandavarkar, J.1. The wording of Clause (4) of Section 349B is not free from ambiguity and there is considerable force in what Mr. Setalvad has suggested as its proper construction. But assuming, without deciding, that that is the only construction of which the clause is susceptible, the act complained of as a breach of the law on the part of the petitioner must, we think, fall within the other clauses of Section 349B. Mr. Setalvad argues that as his client's building is situate between two streets running parallel, this is a case unprovided for in the Act. In other words, according to the argument, it is a casus omissus. r But it is not permissible to create a casus omissus by interpretation save in some case of strong necessity-See Per Lord Fitzgerald in Mersey Docks and Harbour Board v. Henderson brothers (1888) 13 App. Cas, 595 607 and taking a reasonable view of it, we think a building of this kind must at all events fulfil the conditions prescribed in Clauses 1, 2 and 3 with ref...
Emperor Vs. Babaji Girgauda
Court: Mumbai
Decided on: Mar-13-1907
Reported in: (1907)9BOMLR366
Chandavarkar, J.1. It was irregular on the part of the Magistrate before whom the applicants, now before us, were tried, to have used as evidence the statements made by the witnesses to the Chief Constable during the Police investigation, without complying with the provisions of the law. Section 162, Criminal Procedure Code, lays down that ' no statements made by any person to a police officer in the course of an investigation under this Chapter shall, if taken down in writing, be signed by the person making it, nor shall such writing be used as evidence'; and it also provides 'that when any witness is called for the prosecution whose statement has been taken down in writing as aforesaid, the Court shall, on the request of the accused, refer to such writing and may then, if the Court thinks it expedient in the interests of justice, direct that the accused be furnished with a copy thereof and such statement may be used to impeach the credit of such witness in manner provided by the Indi...
Krishnappa Venkaraddi Vs. Shiwappa Timaraddi
Court: Mumbai
Decided on: Mar-12-1907
Reported in: (1907)9BOMLR530
Lawrence Jenkins, C.J.1. The only question that arises on this appeal is, whether by a sale-deed of the 17th July 1900 immoveable property was transferred to the plaintiff by one Ningappa during the active prosecution of a contentious suit, so as to attract the operation of Section 52 of the Transfer of Property Act. The Suit, No. 460 of 1900, was filed by one Timaraddi on the 18th June 1900 against Ningappa, the present plaintiff's vendor. The evidence according to the District Judge shows 'that on the 14th July 1900 the first summons was returned unserved for want of a pointer-out; that on the 10th July Timaraddi applied that the summons might be served on a different village Hanchinal and that on the 12th July the bailiff reported that Ningappa saw, him and ran away. Eventually substituted service was effected on the 4h August 1900.'2. It will thus be seen that the transfer was after the institution of the suit, but before service of the summons and on this ground the learned Distri...
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