Mumbai Court February 1908 Judgments
Hazarimal Fakirchand Vs. Namdev Rakhmaji
Court: Mumbai
Decided on: Feb-20-1908
Reported in: (1908)10BOMLR296
Lawrence Jenkins, C.J.1. No reference in this case lies, because no order can be made under the second paragraph of Section 294 of the Code of Civil Procedure. That section is perfectly clear. The first paragraph of that section requires the permission of the Court to enable the holder of a decree to bid for property. If he gets that permission and gets it without qualification, then the amount due on the mortgage may, if he so desires, be set off. But it may be one of the terms on which permission to bid is granted that there should not be this right of set off. That seems to be the case here. It is clear then that the Subordinate Judge has no power to direct a set-off.2. We are obliged to the pleaders who have assisted us with their arguments in this case....
Tag this Judgment!Ali Miyan Mahomedbhai Vs. B.B. and C.i. Ry.
Court: Mumbai
Decided on: Feb-15-1908
Reported in: (1908)10BOMLR306
Macleod, J.1. The plaintiff has filed this suit against the B.B & C.I. Railway Co. to recover certain moneys and Government Paper which he says are recoverable by him under a contract made with the Company by the firm of Abdul Kadur Alimiyan of which he is the surviving partner. The defendant Company admits that Rs. 3451-14-0 are due under contract referred to in the plaint and that Government Paper of the nominal value of Rs. 2,000 were deposited as security for performance of the contract, but have refused to admit the plaintiff's right to recover them under the following circumstances. One Abdul Kadur Banumiyan tendered for the supply of cotton waste to the Company for the year 1902 in the name of Abdul Kadur Allimiyan. His tender was accepted as also subsequent tenders for the years 1903-4 and 5. In October 1905 he tendered in the first person for the supply of waste cotton and miscellaneous articles on four forms supplied to him by the Company at their office (Exhibit F). The prac...
Tag this Judgment!Juggannath Harilal Vs. Tulra Kera
Court: Mumbai
Decided on: Feb-14-1908
Reported in: (1908)10BOMLR314
Lawrence Jenkins, C.J.1. This is an appeal by the plaintiff from a decree dismissing his suit with costs on the ground that it is an interpleader suit, and so not maintainable.2. In my opinion the learned Judge has been misled by the terms in which the suit evidently was describel before him, for to treat it as on y a suit of interpleader is to disregard paras (d) (e) and (g) of the prayor to the plaint. Those paras contain in substance a claim for redemption, and that in the circumstances is the appropriate remedy (cf. Vyvyan v. Vyvyan (1861) 4 De G. F.& J. 183. The dismissal of this suit might possibly result in the loss to the plaintiff of his right to reJeem and that no one could have intended.3. The decree of the first Court must therefore be set aside. It is now conceded that the first four defendants have no such right as was claimed by them, and it is agreed that the principal and interest payable to the filth defendant up to the institution of the suit is iis. 2400-3-0 on the ...
Tag this Judgment!Sheikh Adam Vs. Balaji Krishnaji
Court: Mumbai
Decided on: Feb-14-1908
Reported in: (1908)10BOMLR509
Chandavarkar, J.1. It is admitted that the respondent Krishnaji Mahadev Modak having died in January 1907. the appellant applied to this Court more than six months after the date of the respondent's death to bring on record the deceased's sons and heirs as his legal representatives. The application was, however, granted ex parte, delay having been excused, subject to objections by the said legal representatives. At the hearing of this second appeal, these representatives have in an affidavit raised the objection that the appellant became aware of the respondent's death soon after it occurred and that there are no reasonable grounds for excusing the delay in making the application.2. The appellant's pleader in answer relies on the ruling of a Full Bench (consisting of three Judges) of the Madras High Court in Susya Pillai v. Aiyakannu Pillai (1906) L.R.R. 29 Mad. 529, in which it has been held that the period of limitation for bringing in the representative of a deceased respondent; in ...
Tag this Judgment!Pestonji Jivanji Vs. Edulji Chinoy
Court: Mumbai
Decided on: Feb-12-1908
Reported in: (1908)10BOMLR287
Arthur Wilson, J. 1. The controversy out of which this appeal arises lies between various members of the Parsi community, and relates to certain land situated in the Secunderabad Cantonment, on a portion of which stands a Parsi Tower of Silence.2. In or about the year 1895 the respondents, purporting to act on behalf of the Parsi community, resolved to erect on the land in question a second Tower of Silence in addition to that already there. The appellants objected to this proceeding, claiming, as descendants, and representatives in title, of the original founders.3. Negotiations for a settlement having failed, the appellants filed the present suit. They alleged that the founders were in their lifetime the owners of the land in question, and that the property had devolved upon themselves, and they proceeded to complain of the respondents' encroachment.4. The respondents, who wore defendants in the suit, asserted that the land had been granted to the whole Parsi community for a public p...
Tag this Judgment!Vishnu Dhondi Vs. Babaji Bahiru
Court: Mumbai
Decided on: Feb-12-1908
Reported in: (1908)10BOMLR505
Chandavarkar, J.1. The only point of law arising on this second appeal is whether the co-parceners of a joint Hindu family are entitled to maintain a suit, to which the provision of Section 47 of the Dekkhan Agriculturists' Belief Act apply, on the strength of a Conciliator's certificate obtained under Section 46 of the Act by only one of those co-parceners, who was either the managing member of the family at the time the certificate was obtained, or, who, though not manager, obtained it with the consent and on behalf of the joint family, acting as its agent.2. The rule of Hindu law is that a joint family is represented in all transactions or concerns with the outside world by its Karta (manager), provided they are for the benefit or necessity of the family ; and that any co-parcener, who does not occupy that position of manager, can represent and bind the family in such transactions or concerns, provided he was either previously authorised to represent it, or, in the absence of such a...
Tag this Judgment!Aga Sheralli Vs. Bai Kulsum Khanum
Court: Mumbai
Decided on: Feb-12-1908
Reported in: (1908)10BOMLR717
Lawrence Jenkins, C.J.1. We have taken advantage of an error apparent on the face of the record to grant the application for review sought by the appellants who were unsuccessful before us on the first hearing of their appeal. We were the more ready to do this as we were told that there were now additional materials in the shape of further and more accurate translations of works by commentators who had discussed the question with which we are concerned.2. That question is, whether under the Shiya Law the succession in the case of descendants of paternal uncles and aunts is stirpital or capital. On the former occasion we held that it was stirpital.3. The heirs by consanguinity under the Shiya Law of inheritance fall into three classes. In the first clas3 are, first the parents, and secondly children and other lineal descendants. In the second class there are first grand parents and ascendants and secondly brothers and sisters and their descendants. And in the third class come paternal a...
Tag this Judgment!Emperor Vs. Datta Khetar Desai
Court: Mumbai
Decided on: Feb-11-1908
Reported in: (1908)10BOMLR284
ORDER1. For the reasons given by the District Magistrate the Court quashes the conviction and sentence and directs that the fine, if paid, be refunded....
Tag this Judgment!Dhikajlal Panachand Vs. Hormusji Edulji Bottlewalla
Court: Mumbai
Decided on: Feb-11-1908
Reported in: (1908)10BOMLR301
Lawrence Jenkins, C.J.1. We are of opinion that having regard to the summons and what is therein stated it was not open to the plaintiff to obtain a decree before the returnable date. We think that this conclusion is not only required by the terms of the summons but is in accordance with the provisions of the Code with which the Rules are consistent in this respect. At the same time the plaintiff has followed a course which has been permitted by the office for a great number of years and it would be hard to cast upon him costs of this appeal.2. So the order we make as to the costs will be that all costs of the suit and appeal up to this date, including the costs of the motion, will be costs in the cause as between the plaintiff and defendants 4 and 5.3. We set aside the decree that has been passed against defendants 4 and 5.4. This order is in both the appeals....
Tag this Judgment!Rajendralal Maneklal Vs. Surat City Municipality
Court: Mumbai
Decided on: Feb-11-1908
Reported in: (1908)10BOMLR498
Knight, J.1. The facts of this case are set forth in the able and elaborate judgment of the learned First Class Subordinate Judge. Briefly, the plaintiff sues to recover damages from the Surat Municipality on account of injury done by storm water to certain garden land of his known as the Gopitalao, alleging that it was owing to the negligence of the Municipality that the water first broke into his garden, and that having broken in, it did not drain off.2. The negligence alleged is of three kinds: firstly, improper and inadequate construction of the sluice gate known as the Macca dam ; secondly, defendant's refusal or omission to drain the water off the garden by means of a disused culvert that once connected it with the main ditch; and, thirdly, defendant's failure to keep the ditch cleared from obstruction and the sluice ga|te in proper working order.3. Now, the first of these allegations is demonstrated to be unsustainable by the plaintiff's own expert witness, as the learned Subord...
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