Mumbai Court June 1907 Judgments
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Gangabai Vs. Purshotum Atmaram
Court: Mumbai
Decided on: Jun-29-1907
Reported in: (1907)9BOMLR912
Macleod, J.1. The plaintiff is the owner of a house in Vithal-vadi and sues the defendant the owner of a house abutting the Eastern wall of the house for a declaration that certain windows in that wall are ancient lights and for an injunction to restrain the defendant from interfering with them. It appears that one Nowroji Kapadia the plaintiffs agent in October 1906 received information which led him to suppose that the defendant was going to pull down his house and erect a new one with a ground floor and three upper stories; whereupon he instructed plaintiff's solicitor to write a notice to the defendant on the 30th October warning him against building so as to infringe the plaintiff's rights. To this the defendant made no reply and in my opinion no reply was called for. At that time the defendant's house was as it is shown in red in the plan annexed to the plaint now Ex. C. On the north side of his house the roof sloped down so as to meet plaintiff's wall just below window No. 1 and...
Mustafa Rahim Vs. Motilal Chunilal
Court: Mumbai
Decided on: Jun-27-1907
Reported in: (1907)9BOMLR742
Curiam, J.1. The District Magistrate dismissed the complaint under Section 203 of the Criminal Procedure Code for reasons mainly or largely arising out of his own personal knowledge of the affair or conjecture or out of knowledge he had apparently acquired prior to the making of the complaint. Reasons for dismissing a complaint should be based on inferences or facts arising from or disclosed by (1) the complaint; (2) the examination of the complainant; (3) the investigation, if' any, made under the powers conferred by Section 202 of the Criminal Procedure Code. This provides a wide field. Anything outside it is extra judicial and must be discarded. This conclusion coincides with that arrived at in the case of Ganesh Narayan Sathe ILR (1889) 13 Bom. 590.2. Accordingly we set aside the District Magistrate's order and direct him to dispose of the complaint according to law.3. The matter was referred to inf'argument but we do not think it necessary at this stage to express any opinion as t...
Emperor Vs. Narayen Raghunath Patki
Court: Mumbai
Decided on: Jun-25-1907
Reported in: (1907)9BOMLR789
Russell, Acting C.J.1. The accused in this case one Narayan Raghunath Patki, an Entry clerk in the General Post Office, Bombay, was charged before Russell J. and a common jury that he being an officer of the Post Office, viz. a clerk in the Inland Registration Department, committed theft in respect of a registered letter 477, containing currency notes of the value of Rs. 80 and four Goa lottery tickets, which was in the course of transmission from Ahmedabad to Goa and thereby committed an offence punishable under Section 52 of Act VI of 1898 and was found guilty and sentenced to six years' rigorous imprisonment.2. On the 16th October 1906, the Acting Advocate General Mr. Lowndes certified that a certain document marked as Ex. N and purporting to be the written record of a statement made by one Shankar, a witness for the prosecution in the case and taken down by one Narayanrao, a Police Officer, was wrongly so admitted and there was accordingly an error in the decision of a point of law...
Raja Muhammad Mumtaz Ali Khan Vs. Murad Bakhsh and ors.
Court: Mumbai
Decided on: Jun-20-1907
Reported in: (1907)9BOMLR851
Andrew Scoble, J.1. In the six cases out of which these consolidated appeals have arisen, the plaintiff was Raja Muhammad Mumtaz Ali Khan, the Talukdar of Atraula and the defendants were persons who, either by themselves or their predecessors in title, claimed under proprietary rights in villages in his taluka. These rights are what are known in Oudh as birt, or birt Zemindari rights ; and the question for decision is whether persons holding under this tenure have a heritable and transferable right, as against the talukdar, in the villages in respect of which the birt has been created.2. In Mr. Syke's valuable Compendium of the Law specially relating to the Talukdars of Oudh (p. 173) it is stated that 'there are several descriptions of Birt known in Oudh, but . . . the true Birt is that known as the Bai Birt, created by the Talukdar or proprietor for money paid.' In the Gonda Settlement Report-and the cases now under appeal come from that district-the Bai Birt is spoken of as Birt Zemi...
Tara Hari Shinde Vs. Krishna Bandu Ghodke
Court: Mumbai
Decided on: Jun-19-1907
Reported in: (1907)9BOMLR774
Chandavarkar, J.1. The appellant was plaintiff in the action out of which this second appeal has arisen. She sued to recover possession of the property of her father, Hari Shinde, deceased, alleging in her plaint that he died, leaving three daughters, including herself; and that she was unmarried and the other two married. She claimed the property as heir to the exclusion of her sisters under the rule of Hindu law that an unmarried inherits to her father before his married daughter.2. The appellant's sisters as defendants resisted the claim upon several grounds, one of which, material for the purposes of this second appeal, was that she was a murali prostitute and that, therefore, she was not an unmarried daughter of her father to entitle her to the whole of his property.3. The Subordinate Judge, who tried the suit, found that the appellant was a murali dedicated to The service of the god Khandoba and lived by prostitution. But he held that, as she had never married, she was an unmarri...
Rukhminibai Subraya Vs. Venkatesh Bab Prabhu
Court: Mumbai
Decided on: Jun-19-1907
Reported in: (1907)9BOMLR958
Chandavarkar, J.1. The question of law in this case is whether the present suit is barred under Section 13 of the Civil Procedure Code. The facts material for the point may be stated thus. The appellant mortgaged his property to the respondent in 1884 on the terms that the mortgagor should redeem it on pay. ment of the principal and that the mortgagee should be in possession and enjoy the profits in lieu of interest. It was, in short, a usufructuary mortgage. It is common ground that the respondent as mortgagee went into possession under these terms. In 1901 the appellant tendered the amount of the principal to the respondent but it was not accepted, The appellant in consequence filed a suit under Section 62 of the Transfer of Property Act to recover possession of the mortgaged property and at the same time under Section 83 of the Act deposited the amount of the principal in Court as the amount payable on the mortgage. The Court passed a decree for possession as claimed by the appellan...
Kedarmal Bhuramal Vs. Surajmal Govindram
Court: Mumbai
Decided on: Jun-18-1907
Reported in: (1907)9BOMLR903
Batty, J.1. This case was originally before the late lamented Mr. Justice Tyabji who following his own decision in Mitilal v. Surajmal (l904) 6 Bom. L.R. 1041 : I.L.R. 30 Bom. 167 held that payment if claimable from the defendant was to be in Bombay and that leave could therefore be given under clause 12 of the Letters Patent.2. This case, however, on appeal was referred back that the following issue, viz. whether the moneys if any due to the plaintiff are payable in Bombay, be tried as a preliminary issue.3. The Advocate General contended that the ruling in Motilal v. Surajmal, above mentioned, practically sufficed for the disposal of this case and that the onus was on defendant to show that precedent did not apply. I considered however that it was for plaintiff to show that his case is one within the jurisdiction of the forum which he has selected Moreover plaintiff cannot even rely on the precedent cited, without showing that the facts are essentially the same in both cases. A large...
In Re: Ali Mahomed Gulam Hoosein
Court: Mumbai
Decided on: Jun-13-1907
Reported in: (1907)9BOMLR737
Heaton, J.1. The admitted facts are that the applicant's house in Chukla Street which comprised several stories was burnt in February 1906 so that nothing remained but the four walls of the ground floor. In rebuilding the house the front wall was pulled down to the plinth and the other three to some six feet or so above the plinth. The applicant then proceeded to build and has built to a height greater than is allowed by Section 349B of the City of Bombay Municipal Act (Bombay Act III of 1888) if that section applies. He has been convicted by the Chief Presidency Magistrate of an offence under Section 471 of the Act for contravening the provisions of Section 349B. That section runs: 'subject to the maximum prescribed by Section 349 A the height to which a building may be erected or raised shall be regulated by the width of the street on which it abuts in accordance with the following rules etc.' If the building 'abuts on' the street and has been 'erected or raised' within the meaning o...
Emperor Vs. Tapidas Durlabhdas
Court: Mumbai
Decided on: Jun-12-1907
Reported in: (1907)9BOMLR732
Chandavarkar, J.1. The appellant has been convicted by the Chief Presidency Magistrate under Section 486 of the Indian Penal Code. The first question raised by the appellant's counsel is whether the appellant's trade mark is a counterfeit of the complainant's and secondly, if it is, whether the appellant has acted innocently. As to the first question, the law as to trade marks is quite clear. 'No trader has a right to use a trade mark so nearly resembling that of another trade as to be calculated to mislead incautious purchasers' Johnston v. Orr Ewing (1882) 7 App. Cas. 219. On the question of such resemblance the eye is the judge. We have had the two rival soaps in this case placed before us and no doubt there are some distinguishing marks between the two ; still, upon the whole, we think that it is impossible to come to any other conclusion than that the appellant's trade mark is an imitation of the other. The decided eases show that it is not necessary that there should be a resembl...
Nabakumari Debi Vs. Behari Lal Sen
Court: Mumbai
Decided on: Jun-05-1907
Reported in: (1907)9BOMLR846
Arthur Wilson, J.1. The suit out of which this appeal arises was brought by a landlord against his tenant to eject the tenant, on the ground that the latter was a mere tenant at will. The defence was that the tenant held a tenure of a permanent character and was not liable to be evicted at will. The sole question on this appeal is which of these views is correct.2. The Subordinate Judge, Second Court, of the twenty?four Pergunnahs, who tried the case, gave a decree in favour of the plaintiff, who is now represented by the respondents; and the High Court supported that decision. Hence the present appeal.3. There is no question that the tenure or holding, whatever may be its nature, had been in existence for about 80 years and probably much more, when the suit was instituted. The rent was an almost nominal one and had never been enhanced, though the value of the holding, as measured by its sale price, had greatly increased. It had been sold again and again by kobalas purporting to convey...
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