Mumbai Court February 1908 Judgments
Bai Diwali Vs. Girdhar Govindram Patel
Court: Mumbai
Decided on: Feb-28-1908
Reported in: (1908)10BOMLR577
1. The decision of the District Court proceeds on the assumption that the doctrine of res judicata has some application to the case. But that is not so.2. Section 13 of the Civil Procedure Code from its very terms cannot apply, and though that section is not exhaustive the rule on which it is founded can have no application here, because Section 20 of the Dekkhan Agriculturists' Relief Act contemplates that even when a decree has been passed which does not allow of instalments, the Court shall have power to allow instalments in execution.3. The order must be set aside and the case must go back for disposal by the learned Judge who must consider whether apart from the ground on which he has proceeded, the instalment should or should not be granted.4. Costs of this appeal will abide the result....
Tag this Judgment!Janardana Vishnu and Ravji Mangesh Vs. Anant Laxmanshet
Court: Mumbai
Decided on: Feb-27-1908
Reported in: (1908)10BOMLR575
Lawrence Jenkins, C.J.1. The only question that arises on this appeal (No. 182 of 1905) is whether the appellant is entitled to piority of payment in respect of the amount due on four instruments being Exhibits 45, 44, 41 and 42. Of these Exhibits 45 and 44 were executed in 1847, 41 in 1848, and 42 in 1868; and the appellant claims the benefit of them. He also claims the benefit of the mortgage created by an instrument Exhibit 43.2. The lower appellate Court has decided against the appellant relying on Rajmal v. Shivaji. (1902) L.R. R. 27 Bom. 154. But that case really is not applicable as the decision cited by the learned Assistant Judge turned altogether on the fact that it was conceded and had to be conceded in the absence of registration that the document there under consideration did not create a charge.3. It seems to us therefore that we are in no way concerned with the doctrine which forbids anything that would amount to a clog on the equity of redemption.4. All we have to consi...
Tag this Judgment!Balwant R. Natu Vs. Secretary of State
Court: Mumbai
Decided on: Feb-26-1908
Reported in: (1908)10BOMLR531
Batchelor, J.1. The course of this litigation is described in Balvant v. Secretary of State ILR (1905) 29 Bom. 480 : 7 Bom. L.R. 497. The case then came on appeal before a Division Bench consisting of Russell and Batty JJ., who after a long judgment dealing with various points sent down for trial the issue whether the land in dispute was comprised within the area to which the grant extended or formed part of the unassessed waste excluded from the grant.2. The District Court has returned a finding that the land in dispute was included in the grant to the Inamdar.3. The case again came before the same Bench, when it was directed to stand over for one month to afford the defendant an opportunity of producing evidence, if he so desired, in rebuttal of that which had already been adduced by the plaintiffs on the subject of possession.4. The defendant did not avail himself of this opportunity, and so the appeal now comes for final disposal before the present Bench. The only question before u...
Tag this Judgment!Soonabai Vs. Tribhovandas N. Malvi
Court: Mumbai
Decided on: Feb-25-1908
Reported in: (1908)10BOMLR337
Lawrence Jenkins, C.J.1. In favour of the competence of these appeals there is the direct authority of the Madras High Court in Seshagiri Row v. Nawab Askur Jung Aftab Dowla ILR (1902) Mad. 502, and though much has been forcibly urged against this view, we ought, 1 think, for the sake of uniformity to accept thin case as the basis of our decision and hold that an appeal lies.2. Then had the learned Judge power under Section 380 of the Civil Procedure Code to order the plaintiff to give security. Though the suits are not exclusively for money, each will, if the plaintiff succeeds, result in a decree for money on the relief sought, and, I. therefore,think comes within the section, and there is no ground for holding that in making the orders under appeal the learned Judge exceeded the just Lmute of his discretion.3. This appeal must, therefore in each case be dismissed with costs.Batchelor, J.4. These are appeals from an order of Davar J. requiring the piaiulill' appellant under Section 3...
Tag this Judgment!Tehilram Girdharidas Vs. Kasmibai
Court: Mumbai
Decided on: Feb-25-1908
Reported in: (1908)10BOMLR403
Lawrence Jenkins, C.J.1. On the 7th of April 1904 Mahomedali Abdul Husein Goriawala executed in favour of the plaintiff a mortgage of immoveable property in Bombay, and the purpose of this suit is to restrain the defendant from interfering with the exercise by the plaintiff of the power of sale contained in the mortgage deed. The interference is admitted, and is sought to be justified by the defendant on the ground that she has a charge on the mortgaged property under Section 55(4)(b) of the Transfer of Property Act.2. Macleod J. has passed a decree in the defendant's favour and dismissed the suit with costs. The plaintiff now appeals from that decree. The charge claimed by the defendant is in respect of unpaid purchase money due under an instrument of transfer executed by her in favour of Mahomedali, the plaintiff's mortgagor, on the 3rd of April 1903, whereby the ownership of the mortgaged property passed to Mahomedali as the buyer.3.The actual consideration named in the instrument o...
Tag this Judgment!Tehilram Girdharidas Vs. Kashibai
Court: Mumbai
Decided on: Feb-25-1908
Reported in: 1Ind.Cas.614
Lawrence Jenkins, K.C.I.E.C.J.1. On the 7th of April 1904 Mahomedali Abdul Husein Goriawalla executed in favour of the plaintiff a mortgage of immoveable property in Bombay, and the purpose of this suit is to restrain the defendant from interfering with the exercise by the plaintiff of the power of sale contained in the mortgage deed. The interference is admitted and is sought to be justified by the defendant on the ground that she has a charge on the mortgaged property under Section 55(4)(b) of the Transfer of Property Act.2. Macleod, J., has passed a decree in the defendant's favour and dismissed the suit with costs. The plaintiff now appeals from that decree. The charge claimed by the defendant is in respect of unpaid purchase money due under an instrument of transfer executed by her in favour of Mahomedali, the plaintiff's mortgagor, on the 3rd of April 1903, whereby the ownership of the mortgaged property passed to Mahomedali as the buyer.3. The actual consideration named in the i...
Tag this Judgment!Haji Bibi Vs. H.H. Sir Sultan Mahomed Shah
Court: Mumbai
Decided on: Feb-24-1908
Reported in: (1908)10BOMLR327
Russell, J.1. Since this point was raised by the Advocate General, and considering as I do that it is one of very great importance to the parties and is also one with regard to which I have been unable to find any direct authority either in India or under the English practice (and I have searched all the authorities I could think of) I carefully considered it. In the first place itappeals no me that it must be a question for the discretion of this Court to decide. I am seized of this case and it is ray duty to see that the case is tried in a fair and proper manner without prejudice or injury to either side as against the other.2. Now I have been unable to find any definition of the word 'plaintiff'' under the Indian, procedure; but I find, in the Judicature Act in England a section, viz. Section 100, which says that the word ''plaintiff' ' shall include every person asking any relief otherwise than by way of counter claim as a defendant) against any other person by any form, of proceed...
Tag this Judgment!Mulla Abdul Hai Vs. Khatija Bgam
Court: Mumbai
Decided on: Feb-24-1908
Reported in: (1908)10BOMLR514
Chandavarkar, J.1. The first point urged in this second appeal is that the respondent was not entitled to appeal to the District Court against the finding of the Subordinate Judge, that there had been no previous partition between the parties as alleged by the defendants. The question arises under the following circumstances. The appellant having sued for partition and the respondent in answer having raised the plea that there had been a previous partition, the Subordinate Judge found on that question in favour of the appellant and referred the further matters in the suit, such as the making of a partition, to certain persons appointed as Commissioners. The Subordinate Judge adopted their report and passed a final decree. The respondent appealed not only against the decretal directions but also against the Subordinate Judge's preliminary finding. It is contended that that finding amounted either to a decree or order within the meaning of the definitions of those terms in the Code of Ci...
Tag this Judgment!Gangaram Keval Vs. Nagindas Khushaldas
Court: Mumbai
Decided on: Feb-24-1908
Reported in: (1908)10BOMLR519
Chandavarkar, J.1. This was a suit brought by the respondent to administer the estate of his debtor Tribhuvan. Tribhuvan was made a party defendant with his other creditors, and the plaintiff prayed that as the estate of the first defendant was valued at only Rs. 3,500 whereas the debts amounted to Rs. 11,000, it was necessary that the estate should be administered by the Court and that the assets should be realized and rateably distributed amongst the creditors. The Subordinate Judge raising the issue whether such a suit was maintainable decided it in the negative. The District Judge on appeal, has, however, come to a different conclusion relying on certain observations in the decision of this Court in Bai Meherbdi v. Maganchand I L R (1904) 29 Bom. 96 : 6 Bom. L.R. 853. But those observations apply to the estate of a deceased person, and morever, it must be remembered they applied to the estate of a deceased Parsi. Therefore, the decision cannot be treated as an authority on the ques...
Tag this Judgment!Ardeshir Mancherji Kharadi Vs. Assistant Collector
Court: Mumbai
Decided on: Feb-24-1908
Reported in: (1908)10BOMLR517
Chandavarkar, J.1. We think we must allow the preliminary objection raised for respondent No. 1 that no appeal lies. Several issues were raised before the District Judge but he has disposed of only three of them which deal with the question of the gross sum payable as compensation. But the question has yet to be determined to whom the amount so determined must be paid, and until that is determined, it cannot be said that there is a final award as contemplated by the Act, against which alone an appeal can be preferred. On these grounds we dismiss the appeal with separate sets of costs....
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