Mumbai Court February 1909 Judgments
Mavsing Bechar and ors. Vs. Emperor
Court: Mumbai
Decided on: Feb-25-1909
Reported in: 2Ind.Cas.480
Chandavarkar, J.1. The preliminary point urged in this appeal is that the trial having been as a matter of fact conducted by the Sessions Court as one with the aid of assessors, as far as the charges for the offences of which the appellants have been convicted are concerned, the learned Sessions Judge has erred in the law, in that he omitted to take the opinions of the jurors as assessors in the manner required by the Criminal Procedure Code and to write a judgment. It may be that, as Mr. Shah for the appellants states, throughout the trial both the Judge and the pleaders understood the trial to be one with the aid of assessors, for the purposes of the charges above mentioned. But, however that be, as a matter of fact, after the learned Judge had charged the Jury he asked for their verdict, on all the charges in the manner required by the provisions of the Code of Criminal Procedure relating to Jury trials. At that moment the appellants' pleader might have intervened and asked the Judg...
Tag this Judgment!Umed Babar Vs. Khushalbhai Kevalbhai
Court: Mumbai
Decided on: Feb-22-1909
Reported in: 2Ind.Cas.426
1. What is called by the parties a relinquishment by the 2nd defendant's father was in substance a partition of the family property between him and his co-parceners, and it is none-the-less a partition within the meaning of that term in Hindu law though instead of receiving his share of the property as it existed then, the 2nd defendant's father received the money value of it. It is urged that, that partition is not binding on the 2nd defendant because the latter was a minor then and the deed, Exhibit 38, contains no express words to show that his father and his co-parceners intended to include the 2nd defendant's share in his father's share. But the rule of Hindu law is that at a partition among the members of a joint family, each member is presumed to represent not only himself, but also his sons and the son takes his share through his father as being included in the share allotted to his father. That is the meaning and result of the text: 'Among sons by different fathers, the allotm...
Tag this Judgment!Krishnaji Pandurang Vs. Gajanan Balvant Kulkarni
Court: Mumbai
Decided on: Feb-12-1909
Reported in: 2Ind.Cas.489
Chandavarkar, J.1. The action in this case was brought by the respondent to recover a certain sum of money from the appellant on account of toll leviable on paddy exported from the territory of the Punt Suchiv to Pen via Umber Khind in British territory. The respondent alleged in his plaint, and it is found proved by both the Courts below, that, under a grant from the peshwas, who were the rulers at that time of the territory now owned by the Punt Suchiv, the respondent has acquired the right in that territory to levy a certain rate or cess on all imports into and exports from it. It goes by the name of the Tipnis Pansare right.2. It is admitted before me that the cause of action arose in foreign territory, but it is contended that the suit lies in our Courts because the defendant resides in British jurisdiction. What the respondent claims, however, is an allowance granted by the Peshwa in permanence, and such an allowance, whether secured on land or not, being, according to Hindu law,...
Tag this Judgment!Byramji Rustomji Mistri Vs. Heerabai
Court: Mumbai
Decided on: Feb-10-1909
Reported in: 2Ind.Cas.161
Basil Scott, C.J.1. This is an appeal by an attaching creditor from an order passed on a Chamber summons whereby an attachment levied upon a certain house was raised.2. The material facts are as follows:On the 14th of April 1903, Dossabhoy Rustomji Mistri died leaving a will whereby he appointed Byramji Rustomji Mistri, his brother, and Heerabai, his widow (respectively appellant and respondent in this appeal), his executor and executrix.3. At the time of his death he was indebted to Jehangir B. Mistri in the sum of Rs. 1,000.4. The executor and executrix named in the will obtained probate in August 1903 and on the 27th of September 1903 borrowed Rs. 1,000 from Soonabai, widow of Rustomj Jivanji Mistri and mother of the testator, and on the same day with the sum so raised they paid off the debt due to Jehangir B. Mistry.5. Early in 1906, Ruttonbai, the daughter of the deceased, filed suit No. 110 of 1906 in this Court for administration of her father's estate in order to get payment of...
Tag this Judgment!Emperor Vs. Abdulali Sharfali
Court: Mumbai
Decided on: Feb-09-1909
Reported in: 1Ind.Cas.280
Beaman, J.1. At the opening of the trial Mr. Lowndes asked the Court to rule whether, if the accused put in any documents in the course of his cross-examination of the witnesses for the prosecution, he would thereby forfeit his right to the last word. The question thus raised often comes before the Courts. It never would have occasioned me any difficulty but for the old standing distinction drawn in England between documents put in by the accused through prosecution witnesses, and statements elicited in cross-examination from prosecution witnesses, both of which the accused means to use for his defence. The illogicality of this distinction seems, later, to have given rise to a new principle. As far as the particular result, which is here in dispute, is concerned, English Judges now appear to make this the test: if the documents put in by the accused through a witness for the prosecution can fairly be said to take the prosecution by surprise, then the prosecution has the right to reply....
Tag this Judgment!Trimbak Gopal Paricharak Vs. Krishnarao Pandurang
Court: Mumbai
Decided on: Feb-09-1909
Reported in: 2Ind.Cas.419
Chandavarkar, J.1. It is contended for the appellants, on the authority of this Court's decision in Vasudev v. Vamnaji 5 B. 80 that a Civil Court has no jurisdiction to try a suit of the present character because its prayer is for a bare declaration of the plaintiffs' right either to perform by themselves or to get performed certain religious ceremonies in a temple, and there is no contest as to any right to property or to any office. Carefully analysed, the suit is not of that nature. The plaintiffs are members of the Committee of Management of the Temple of Shri Vithoba and Shri Rakhmabai at Pandharpur. They hold the office under a sanad from Government and receive annually a certain sum of money for defraying the expenses of certain kinds of religious worship in the Temple, known as Sirkari puja. The obligation is attached to that office to get that worship performed by the hereditary officers or servants attached to the Temple. The plaintiffs complain that those officers, owing to ...
Tag this Judgment!Miya Mahomed Haji Jan Mahomed Vs. Zorabi
Court: Mumbai
Decided on: Feb-05-1909
Reported in: 2Ind.Cas.157
Basil Scott, C.J.1. This is an appeal against an order passed by Mr. Justice Macleod sitting in Chambers, directing the issue of a commission for the examination of various witnesses in the suit including the plaintiffs at Moulmein.2. An objection has been taken that no appeal lies.3. It is contended for the appellants that an appeal does lie on the ground that the order of Mr. Justice Macleod was a judgment within the meaning of Clause 15 of the Letters Patent.4. The meaning to be attributed to the word 'judgment' was discussed as early as 1872 by the Calcutta High Court in the case of The Justices of the Peace for Calcutta v. The Oriental Gas Company 8 B.L.R. 433 : 17 W.R. 364. The Chief Justice of Bengal in that case discussed the previous case of DeSouza v. Coles 3 M.H.C. 384 a decision of the High Court of Madras, in these terms. He said:A decision of the High Court of Madras was also referred to, in which, it was held that the refusal of a Judge to give leave to institute a suit ...
Tag this Judgment!Emperor Vs. De Sylva
Court: Mumbai
Decided on: Feb-03-1909
Reported in: 1Ind.Cas.343
Heaton, J.1. The questions which we are asked to answer are these:1. Whether the conveying of a parcel of cocaine in a ship with the intention that such cocaine shall be landed in Bombay amounts to an importation within the meaning of Section 43, Bombay Act V of 1878, if the ship containing such cocaine(a) enters Bombay harbour(b) is tied up against the Bombay Dock wall?2. Whether the Bombay harbour is a part of the Bombay Presidency within the meaning of Section 43 of Bombay Act V of 1878?3. Whether a person who has committed the act referred to in question (1) has a locus poenitentite while the cocaine remains on board the ship and no attempt has been made to land it?2. The first question involves a consideration of the meaning of Section 43 of Bombay Act V of 1878. That section makes penal the import of cocaine in contravention of this Act or of any rule or order made under this Act.' It does not appear that anything has been done in contravention of any rule or order made under the...
Tag this Judgment!Mulji Tejsey and ors. Vs. Ransey Devraj and ors.
Court: Mumbai
Decided on: Feb-01-1909
Reported in: 3Ind.Cas.837
Beaman, J.1. The first point requiring decision. is whether the firm of Khoorpal Dungersey is a necessary party to the suit The answer to that question plainly depends upon the determination of a further question of fact, whether the firm of Khoorpal Dungersey is a partner of the plaintiff? That is a matter which must have been in the plaintiff's knowledge. Both he and Khoorpal Dungersey know and knew throughout the suit whether a partnership existed between them.2. The defendant contends that the result of finding that Khoorpal Dungersey is plaintiff's partner must be the dismissal of the suit. To this the answer is that Rule 9. Order 1 of the Civil Procedure Code, forbids any suit to be defeated for misjoinder or non-joinder. Under the old Civil Procedure Code, Section 31, it was enacted that no suit should be defeated for mis-joinder. But as in England where the Rule of the Supreme Court first stood in the same language, the Courts inclined to include non-joindeir Yet there is more ...
Tag this Judgment!Ranchhodbhai Valavbhai Vs. the Collector of Kaira
Court: Mumbai
Decided on: Feb-01-1909
Reported in: 2Ind.Cas.492
1. Following the ruling in Laxmi horn Tatya v. Aba bin Appaji 10 Bom. L.R. 924 : 32 B. 634 the reasoning of which applies to the facts of the present case, we must hold that no appeal lies to this Court from the order of the Assistant Judge, but that the appeal lies to the District Court. We, therefore, return the appeal for presentation to the District Court.2. The respondent must have his costs of this appeal....
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