Court : Mumbai
Reported in : (1907)ILR31Bom534
1. In the year 1902 the plaintiffs heroin had a grain shop at Poona and the defendants are the G. I. P. Railway, During May 1902 the plaintiffs' agent went to Wadi to buy grain which he sent to Poona for sale there. The plaintiffs sue to recover from the defendants Rs, 655-11-0 and interest thereon as damages amounting to Rs. 174-2-9 in all Rs. 829-13-9. The sum of Rs, 655-11-0 is in the plaint sought to be recovered as the excess amount claimed and received by the Railway Company at Poona in respect of various parcels of grain sent from Wadi to Poona on different dates in Juno and July 1902, the details of which arc set out in the plaint. The dates of the excess amounts being received are as follow:Rs. 187-5-0 received 12th July 1902." 62-6-0 received 16th July 1902." 406-0-0 received 25th July 1902.______________Rs. 655-11-0.The plaint was filed on 10th July 1905.2. The learned Judge of the Small Cause Court at Poona raised the following preliminary issue. Whether the suit was not ma...
Tag this Judgment!Court : Mumbai
Reported in : (1907)9BOMLR1034
Beaman, J.1. It will be convenient to descend from the general to the particular. As to the arguments founded on the maxim omnia prcesumuntur etc., it is to be observed that so far it cannot be said with certainty that there has been any spoliation. Should the explanation offered by the defendant prevail, it might be difficult for the plaintiff to rest anything on this ground. But taking it for the moment to be as the plaintiff alleges, nothing material to the present purpose follows. The English Courts have gone a great way notably in such cases as Anneelsy v. Anglesea and Wardour v. Beresford : but in this case there is really no room for any presumption at all. I mean of course upon any fact relating to the stamp objection. Asking the Court to presume, (d) that the papers were stamped or (b) that they contained matter which might have refuted the objections, is asking the Court to presume that which, it knows, as far as in these circumstances it is safe to say that anything can be c...
Tag this Judgment!Court : Mumbai
Reported in : (1907)9BOMLR885
Louis P. Russell, Acting C.J.1. This matter has been referred to us by the Subordinate Judge of Kumta purporting to act under Section 617 of the Civil Procedure Code.2. It appears that an award had been passed between Haridas Dayal and one Subraya Nagapa in respect of a mortgage-deed of landed property by private arbitration without the inter, vention of the Court and Haridas applied that the award be filed under Section 525 of the Civil Procedure Code. The award deals with the mortgage lands.3. Subraya appeared in person and stated that he had no objection to have the award filed.4. The application was numbered and registered as a suit Haridas being the plaintiff and Subraya the defendant.5. The first question is whether this application to file the award relates to land under Section 10, Clause (i) of the Bombay Record of Rights Act IV of 1903.6. Mr. Mulgaonkar as amicus curies for Haridas said he would not contest this point and in that, we think, he was right as the award obviously...
Tag this Judgment!Court : Mumbai
Reported in : (1907)9BOMLR896
Chandavarkar, J.1. The first question is whether an appeal from the Mamlatdat's orders refusing sanction lay to the District Court. Mr. Rao has argued that the appeal lay to the Collector as the principal Court of original jurisdiction to whom the Mamlatdar is subordinate under the present Mamlatdars Act, because under that Act the Mamlatdar's Court is a Revenue Court. The Act does not define the Mamlatdar's Court as a Revenue Court Before it came into force a Mamlatdar's Court for the purposes-of the Mamlatdars' Act, Bombay Act III of 1876, had been treat ed by the decisions of this Court as a Civil Court. That had been the law before the present Act came into operation. The Legislature must be taken to have been aware that such was the law; and if the Legislature had intended to abrogate that law, it would have expressed its intentions in clear words. No such intention has been expressed in the Act and we cannot imply it without something in the provisions to warrant the implication....
Tag this Judgment!Court : Mumbai
Reported in : (1907)9BOMLR936
Louis P. Russell, Acting C.J.1. This is an application by the decree-holder under Section 622 of the Code for this Court to exercise the jurisdiction conferred thereby.2. The decree-holder got his decree and was resisted, he says, by a person other the judgment-debtor and accordingly an application was made to the Subordinate Judge under Section 331. He, however was mated to go in to the question.3. The point that now arises before us is whether an appeal lies from that order or not for, if an appeal lies, then I apprehend this application under Section 622 would be incorrect.4. Now in two cases viz. Fonindro Deb Raikut v. Rani Jugodishwari Dabi ILR (1886) cal. 235 which was followed in Gopal v. Fernandas ILR (1802) Mad. 127 it was held that an appeal would lie from an order under Section 331 and the reason for the decision in both those cases is that the claim under Section 331 must be treated for all purposes as if it were a plaint; and inasmuch as by Section 2 of the Civil Procedure...
Tag this Judgment!Court : Mumbai
Reported in : (1907)9BOMLR1026
Chandavarkar, J.1. The Subordinate Judge has disposed of this application, for modification of the decree by making the decretal amount payable by instalments, upon the ground that the application was made too late. It is not clear what the Subordinate Judge means by the application being made 'too late'-whether he thinks that the application is barred by limitation under Article 175, Schedule II of the Limitation Act, or that it is made at a late stage of the case. If the former is the meaning, Section 15 (b) of the Dekkhan Agriculturists' Relief Act gives a discretionary power to the Court to make the decretal amount payable by instalments in the course of any proceeding in execution of a decree for redemption, foreclosure or sale. Here, as is admitted before us by the respondent's pleader, there is a decree absolute for sale, but the property has not been sold by the Court in execution of it and therefore it has not gone out of the hands of the mortgagor. He has still an equity of r...
Tag this Judgment!Court : Mumbai
Reported in : (1907)9BOMLR893
Chandavarkar, J.1. We are of opinion that the appeal is barred by limitation, the period of six months prescribed in the Limitation Act having expired and it being more than one year since the case was disposed of in the Sessions Court. We have power to excuse the delay under Section 5 of the Limitation Act. That section ' gives the Courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words sufficient cause receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant' Krishna v. GhatJiappan I L R (1889) Mad, 269 . The question, therefore, is whether there has been negligence or inaction in this case on the part of Government. The affidavit of the District Magistrate shows that he notified intention to move for an appeal against the acquittal at the time of h...
Tag this Judgment!Court : Mumbai
Reported in : (1907)9BOMLR895
Curiam, J.1. It is clear from an examination of this case that the Magistrate who tried the prisoners used as evidence against them statements made by the prosecution witnesses before the Police, by comparing them with their depositions and as a result of that comparison convicted the prisoners. That was illegal. See Section 162 of the Code of Criminal Procedure. The convictions and sentences are quashed and we direct that the petitioners, if in jail, be set at liberty....
Tag this Judgment!Court : Mumbai
Reported in : (1907)9BOMLR1192
Collins, J.1. The plaintiffs in this cases, Shahzadi Begam and Puti Begam, claimed to be the heirs of one Mir Amir Ali Khan, who died on the 30th October 1897 intestate. The claim was opposed by the now respondent, who contended that the deceased had left no heir and that his estate had escheated to the Government. There were numerous other claimants whose cases were successively dismissed by the District Judge of Dacca. He decided, however, that the plaintiffs had proved their case and granted administration accordingly. On appeal by the Secretary of State to the High Court at Fort William, the decision of the District Judge was overruled. Hence the present appeal. Since this appeal was entered, viz., on the 9th June 1904, Shahzadi Begam died and by an Order of the High Court of the 16th May 1905, on the application of the respondent, the appeal was allowed to proceed at the risk of the surviving appellants, viz., Puti Begam and two other persons who had purchased from the plaintiffs ...
Tag this Judgment!Court : Mumbai
Reported in : (1907)9BOMLR872
Robertson, J.1. The questions raised by this appeal relate to the succession of Goolam Ariff, a wealthy Mahomedan resident of Rangoon, Who died on 16th May 1902. He left a will dated 19th April 1902, by which he bequeathed his property to his heirs according to Mahomedan law. The controversy between the parties is concerned with the validity of certain deeds of gift, dated 2nd April 1902, by which he conveyed to certain of his minor children and wives a certain number of undivided 2,000th shares in certain valuable properties. These deeds are attacked by the executor of the will on two main grounds, the first relating to the physical condition of the deceased at the date of execution, the second founded on the law of Mushua which is said to forbid them. (The attack on the deeds as 'colourable' so entirely failed, that it is unnecessary to do more than state that it was made.)2. The first of these is a pure question of fact; the two Courts have concurred; and each judgment is supported ...
Tag this Judgment!