Mumbai Court March 1908 Judgments
Shidappa Ryawappa Vs. Venkaji Krishna
Court: Mumbai
Decided on: Mar-31-1908
Reported in: (1908)10BOMLR550
Batchelor, J.1. The facts necessary for the determination of this appeal lie in small compass, and are not open to ambiguity. In both Courts below the plaintiff's suit has been dismissed as barred under Article 11 of the Limitation Act inasmuch as it was instituted more than a year after an order passed under Section 335 Civil Procedure Code, against the plaintiffs' stepbrother, Virupakshapa. That order was made in favour of the defendants 4 and 5, to whose possession Virupakshapa had offered obstruction. Both lower Courts have held that the plaintiffs are bound by the order under Section 335 on the ground that they were represented by Virupakshapa in the miscellaneous proceeding which resulted in that order. The only question in appeal is whether the plaintiffs are so bound or not. It appears to me that they are not bound.2. The question must turn upon the circumstances in which the order was made, and I must therefore refer briefly to those circumstances. In January 1898 the Court sa...
Tag this Judgment!Bhurabhai Jamnadas Vs. Bai Ruxmani
Court: Mumbai
Decided on: Mar-28-1908
Reported in: (1908)10BOMLR540
Batchelor, J.1. A preliminary objection was raised by the Honourable Mr Gokaldas that under the Provincial Small Cause Courts Act no second appeal lay, but it appears to me clear that this is a 'suit relating to a trust' within the meaning of Article 18 of Schedule II of the Act, so that a second appeal is competent.2. The only other question debated is whether, as the first Court held, the suit falls under Section 10 of the Limitation Act and so is within time, or whether, as the lower appeal Court has decided, the suit does not fall under this section, in which case it would admittedly be barred by time.3. Section 10 of the Limitation Act requires as conditions precedent to its applicability, first, that the suit should be against a person in whom property has become vested in trust for a specific purpose or against his legal representatives or assigns, and, secondly, that the suit should be for the purpose of following such property in his or their hands. The question is whether the...
Tag this Judgment!In Re: Muse Bagas Abheram
Court: Mumbai
Decided on: Mar-26-1908
Reported in: (1908)10BOMLR563
Batchelor, J.1. We think the order made by the learned Magistrate in this case must be set aside. It purports to be made under Sections 1153 and 137 of the Criminal Procedure Code. But the Magistrate was met at the outset of his inquiry by a claim of ownership on behalf of this petitioner.2. Now when a claim of that kind is made, the Magistrate has to see whether it is a boma fide claim on the part of the maker or is a mere pretence to oust his jurisdiction. In the latter case of course the jurisdiction will not be ousted, but in the former case the Magistrate's proper course is to stay his hand and to allow the dispute to be settled in the Civil Courts. See for instance Luckhee Narain Banerjee v. Ramkumar Mukherjee I L R (1888) Cal. 564.3. In this case the learned Magistrate, instead of considering whether the claim was a bona fide claim from the point of view of the petitioner, proceeded to appreciate the evidence which the petitioner had tendered ; and, in so doing, we think that he...
Tag this Judgment!Shankar Shamrao Vs. Shankaragandayya
Court: Mumbai
Decided on: Mar-23-1908
Reported in: (1908)10BOMLR538
Batchelor, J.1. The appellant here is the judgment-debtor-mortgagor, and the decree had been obtained against him before the introduction of the Dekkhan Agriculturists' Relief Act into the Dharwar District.2. That decree provided for payment of the mortgage-debt in three instalments, and it was ordered that if default were made in the payment of any instalment, then the mortgagee was to be empowered to bring the property to sale.3. Default having been made, an application was presented by the mortgagee for the sale of the property. This application was granted by the First Class Subordinate Judge at Dharwar.4. In appealing from that order the judgment-debtor has taken two points before us. In the first place it was said that, inasmuch as the Dekkhan Agriculturists' Relief Act had been extended to the Dharwar District when this application in execution came before the Subordinate Judge, he should have reconsidered the whole matter under Section 15(b) of the Dekkhan Agriculturists' Relie...
Tag this Judgment!Hansraj Vs. Sundar Lal and Dwarka Das
Court: Mumbai
Decided on: Mar-18-1908
Reported in: (1908)10BOMLR581
Macnaghten, J.1. The parties to these two appeals or their predecessors in title have been in litigation now for more than twenty years. The subject of litigation is the property of a joint Hindu family engaged in business, with branches in different parts of the country. Part of the family property is situated in British India ; part in native States. The litigation Avas begun, in 1886, in the Court of the Political Agent at Sehore, in Bhopal, by a suit for partition of so much of the family property as was within his jurisdiction. The next proceeding was a suit for partition, commenced in 1888, in the Court of the ' District Judge of Karnal, in the Punjab.2. In August 1897, after prolonged litigation, the parties to the Punjab suit nominated Mr. S. Clifford, Divisional Judge of Delhi, sole arbitrator to decide the matters in dispute in the suit. The arbitrator was to determine what joint property moveable and immoveable, except the immoveable property outside British India, was to be...
Tag this Judgment!T.P. Petherpermal Chetty Vs. R. Muniandy Servai
Court: Mumbai
Decided on: Mar-18-1908
Reported in: (1908)10BOMLR590
Atkinson, J.1. In this ease an action was originally brought by R. Muniandy Servai, claiming through his deceased brother Chellum Servai, who was himself heir and administrator of one Muniandy Maistry, against T. P Petherpermal Chetty, the uncle and predecessor of the appellant (hereinafter called ' Petherpermal the elder') and two formal defendants, R M. A.R. L Muthia Chetty and P. R. M. P. Chinnia Chetty, to recover possession of a certain tract of paddy land about 2,500 acres in extent, known as Government Waste Land No. 1, situate in Tamanaing Circle, Kungyangon Township, Hanthawaddy District, Lower Burma. One Arunachellam Chetty claimed to be an incum-brancer on these lands as equitable mortgagee by deposit of the title deeds for a sum of Rs. 14, 568-12-0,2. On the 11th June 1895, Chellum Servai executed a deed purporting to be a conveyance on sale of the above-mentioned lands to Petherpermal Chetty the elder, a money lender residing in Rangoon, in consideration of the sum of Rs. ...
Tag this Judgment!Khushaba Mansing Vs. Chandrabhagabai
Court: Mumbai
Decided on: Mar-11-1908
Reported in: (1908)10BOMLR536
Batchelor, J.1. The first point taken in this appeal is a point of law and depends upon the argument that under Sections 122 and 123 of the Transfer of Property Act, there can be no good acceptance of a gift of immoveable property until the transfer has been effected by a registered instrument as required by the law. It seems to matter little whether the acceptance required is the acceptance of the gift or of the transfer. For, as we understand the argument, there is neither gift nor transfer until the transaction is embodied in a registered instrument.2. Now the facts of this case show that, although there was an acceptance by the plaintiff during the life-time of the donor, this acceptance occurred while yet the instrument of gift remained unregistered. We are therefore invited to say that there has been no valid acceptance.3. But the precise point occurred in the case of Nand Kishore Lal v. Suraj Prasad I L R (1902) 20 All. 392 where it was held that the gift of immoveable property ...
Tag this Judgment!Yakub Ebrahim Sayani Vs. Bat Rahimatbai
Court: Mumbai
Decided on: Mar-10-1908
Reported in: (1908)10BOMLR346
Beaman, J.1. I understand that I am now asked to decide only one point before referring the account to the Commissioner, that is Avhether the defendant is liable for Rs. 4,000 said to have been borrowed from Hirbai by Fazul on the 11th May 1901? 2. Defendant's first objection is under Section 87 of the Negotiable Instruments Act. He contends that there has been a material alteration in the promissory note, and therefore that it is void and the plaintiff cannot sue on it. This implies that Ex. B is a promissory note. As to that, although it is in form a promissory note, there can I think be no doubt that neither party to it had any intention of putting it in circulation or using it as a negotiable instrument. It is written in Hirbai's book and is plainly meant to be no more than an acknowledgment of indebtedness I am further of opinion that there was no such material alteration as in the intention of the section would make it void. I am not to be understood as saying that altering a dat...
Tag this Judgment!Jamasji Shapurji Lala Vs. Sorabji Kawasji Bapasola
Court: Mumbai
Decided on: Mar-04-1908
Reported in: (1908)10BOMLR579
Russell, J.1. This is an application made on behalf of the insolvent that certain future commissions, which it appears are payable as premia in respect of Policies of Insurance which were effected through the instrumentality of the insolvent when he was in the employ of the Oriental Life Insurance Co., should be handed over to him. An application was made to Mr. Justice Beaman with regard to an accumulated sum of such commission which was in the hands of the Official Assignee and he held (and the Court of Appeal confirmed his decision) that the sum was an asset of the insolvent and therefore vested in the Official Assignee and that no order could be made.2. As I have said the present application deals with future commissions as they accrue due.3. I asked Mr. Manker under what section he applied and he could only refer me to Section 27 of the Insolvent Debtors Act. But it seems to me that section has no application to the present case. The material part of the section is as follows :-If...
Tag this Judgment!Sir Jehangir Cawasji Jehangir Vs. the Hope Mills Ltd.
Court: Mumbai
Decided on: Mar-03-1908
Reported in: (1908)10BOMLR488
Chandavarkar, J.1. We are of opinion that the order appealed from ought to be aside.2. A preliminary point has been raised by the learned Counsel for the respondent that no appeal lies from that order upon the ground that it was made under either Section 206 of the Civil Procedure Code or Rule 305 of this Court's Rules.3. In order to bring the order under Section 206 of the Code it is necessary that the application was made to bring the decree into conformity with the terms of the judgment or to correct or rectify a clerical or arithmetical error found in the decree. Now, it is not pretended by the counsel for the respondent that the decree or order was defective on the ground of a clerical or arithmetical error; nor has it been argued that there was any inaccuracy to bring the decree within the terms of Rule 305. What has happened is that while the decree contemplated an account being taken between the parties, it was silent on the question as to how that account was to be taken, whet...
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