Mumbai Court March 1909 Judgments
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Bhaurao Jivaji Tivle Vs. Radhabai Laxaman Jivaji
Court: Mumbai
Decided on: Mar-09-1909
Reported in: 2Ind.Cas.431
1. The first point raised on appeal is that the decision of the arbitrators with regard to the partition which they directed to be made by the award was ultra vires, because there was no submission upon that point to their judgment and that, therefore, the award so far as the direction as to partition was concerned was invalid and not binding upon the parties. It is no doubt open to the appellant to urge and show that the award is not binding upon him for want o]f jurisdiction in the arbitrators. But the question of jurisdiction turns in the case on a question of fact, viz., did the submisson or reference to arbitration include the question of partition or was it confined only to the dispute whether the property was joint or self-acquired? The former like the latter question depended upon evidence. But the pleadings in the Court below show that that question was not only not raised there but was virtually waived. On the basis that the award was valid, what was urged in the Court below ...
Heptulla Abdul HusseIn Vs. Mahomed Bala
Court: Mumbai
Decided on: Mar-09-1909
Reported in: 2Ind.Cas.511
1. In dealing with the previous darkhast in Appeal No. 91 of 1905, this Court, treating the decree as one on a mortgage, held the assignment relied on by the present appellant as inoperative for want of registration. The appellant by the present darkhast seeks to get rid of the bar of registration by treating the decree as one for money because the decree entitled its holder to recover the decretal amount from property of the judgment-debtor other than that mortgaged in case he should fail to recover the whole of that amount from the latter property But the decision of this Court must be regarded as a decision that the decree is not a money decree. It may be that, as held by the Allahabad High Court in Pirbhu Narain Singh v. Amir Singh 29 A. 369 in the case of a decree like the present it is open to its holder to give up his right to recover the decretal amount from the property mortgaged and elect to proceed against other property of the judgment-debtor, but that right of election by ...
Umabai Vs. Bhavu Balvant and ors.
Court: Mumbai
Decided on: Mar-08-1909
Reported in: 3Ind.Cas.165
1. At the hearing of this suit Mr. Setalvad for the first defendant raised amongst others the following issues:(4) Whether the Court has jurisdiction to entertain this suit.(5) Whether the suit is not bad for reason of misjoinder of causes of action and of parties.2. The learned Counsel after the issues had been raised and the Advocate-General had stated the facts of the case applied that the two issues Nos. 4 and 5 which involved questions of law should be tried first. The Advocate-General did not object to this being done. Order XIV, Rule 2, provides that where in the same suit issues both of law and of fact arise and the Court is of opinion that 'the case or any part thereof may be disposed of on the issues of law only it shall try those issues first.'3. On the pleadings and the undisputed facts it did appear to me possible that the suit, or at all events a part of this suit, may be disposed of by determination of these issues of law and I felt that it was desirable in the interest ...
Krishnaji Ramchandra Datar Vs. Bomanji Edalji
Court: Mumbai
Decided on: Mar-08-1909
Reported in: 2Ind.Cas.459
Chandavarkar, J.1. The lower Court has found that the specific fraud set up and explained in Exhibit 24 is not proved. That finding' of fact is not assailed in second appeal. What is urged is that the sale in dispute is void, because of certain illegalities, one of 'which, as found by the Court below, is that it was held at a place and time different from those fixed by the proclamation. But it is not alleged that the judgment-debtor was ignorant of the fact that the sale took place at any other locality than that mentioned in the proclamation. We must presume that he was aware of what was going on and lay by. Therefore, the case would fall within the principle laid down by the Privy Council in T.R. Arunachellam Chetti v. V.B.B.M.A.R. Arunachellam Chetti 15 I.A. 171 : 12 M. 19: 'The judgment-debtors knowing, as they must have known, what the description was in the proclamation, allow the whole matter to proceed until the sale is completed, and then ask to have it set aside on account o...
Chunilal Harichand Gujar Vs. Vinayak Anandrao
Court: Mumbai
Decided on: Mar-05-1909
Reported in: 2Ind.Cas.515
1. The learned Judge in the appeal Court below has misunderstood the judgment of this Court in Dwarkojirao Baburao v. Balkrishna Bhalchandra 19 B. 255 in construing the word 'agriculturist' as denned in the Dekhan Agriculturists' Relief Act. He says that 'it is not necessary for a man claiming the status of an agriculturist under the definition in the Agriculturists' Relief Act to show that his income from agriculture exceeds his income from other sources.' That is not what was held in Dwarkojirao Baburao v. Balkrishna Bhalchandra 19 B. 255. In that case, as the facts show, when the suit was instituted the income from non-agricultural sources had become less than that from agriculture : and the Court held that, that circumstance brought the plaintiff within the definition. The judgment begins by pointing out that the expression 'earns his livelihood' can only mean obtains the means of maintaining himself. In ascertaining whether a man who has two or more sources of income, of which the...
Hargovan Ramji Vs. Mulji Harjevan
Court: Mumbai
Decided on: Mar-04-1909
Reported in: 4Ind.Cas.241
1. The question in this case is whether the plaintiff is entitled to maintain this suit, having regard to the proceedings in a previous suit instituted by him in the year 1902. In that year, he filed suit No. 254 against certain persons whom he alleged to be in possession of a room used as a temple in a house which was his property. In the plaint he did not set out his title to the property and as appeared in the course of the trial he had avoided stating circumstances which raised a question as to whether the whole property was not the subject of a religious trust. He succeeded in the first Court in getting a decree for ejectment against the defendants with respect to the room used as a temple. In the Court of Appeal it was held that the house was impressed with a religious trust and his only possible claim must be based upon his right as manager. He was then offered an opportunity of altering his case so as to base it upon his right as manager under the will of the person who establi...
Emperor Vs. Kesari Dayal Kanji
Court: Mumbai
Decided on: Mar-04-1909
Reported in: 2Ind.Cas.517
Chandavarkar, J.1. There has been, in my opinion, a plain misdirection in the learned Judge's charge to the Jury to Warrant our holding that there is an error of law in the verdict of a majority of the Jury which has been accepted by the Judge. The evidence against the accused rested on the testimony of her step-son Chittio and her own confession.2. Dealing with the latter the learned Sessions Judge in his charge to the Jury said:With regard to the confession of accused which she now says she made under pressure from the Police, though there is no evidence to that effect, the law is that a confession which is caused by any inducement, threat or promise is irrelevant. There is no evidence that the confession was so caused. If you believe the confession to be voluntary it corroborates the story of Chittio.3. Now, in the first place, the question whether a confession was voluntarily made or not has to be decided by the Judge himself for the purpose of admitting it in, or excluding it from...
Gunnaji Bhavaji Vs. Makanji Khushalchand
Court: Mumbai
Decided on: Mar-02-1909
Reported in: 3Ind.Cas.159
1. In this case we cannot agree with the learned Judge of the Court below that an amendment such as was asked for would convert the suit into a suit of different and inconsistent character. The suit would remain the same based upon exactly the same cause of action except for the addition of one allegation. We think, therefore, that the amendment should be allowed as shown in para. 1 of the memorandum of appeal, but as the controversy has arisen entirely through the negligence of the plaintiffs, we direct that they must pay the costs of the appeal and of the first hearing in the Court below including the costs if any of the hearing of the judgment. Leave granted to defendants to file a supplemental written statement, if so advised....
Kashinath Moreshwar Vaidya Vs. Baji Pandurang Vaidya
Court: Mumbai
Decided on: Mar-02-1909
Reported in: 3Ind.Cas.763
Chandavarkar, J.1. The facts which have been found by the Courts below and as to which there has been no dispute are shortly these. Defendant No. 1, brought a suit for a, money decree against one Vinayak. Vinayak having died during the pendency of the suit, these sons (under whom the present appellants claim) were brought on the record as his legal representatives and the suit passed into a decree in favour of respondent No. 1. In execution thereof the property now in dispute having been attached by the said respondent was purchased by respondent No. 2 at a Court sale. Subsequently respondent No. 2, sold the property to respondent No. 1. The present suit was brought by the appellants to recover possession of the property on the ground that it was the self-acquisition of their assignors, the sons of Vinayak. The defence was that the decree in the previous suit and the purchase consequent upon it bound the appellants' assignors, and Section 244 of the Code of Civil Procedure of 1882, whi...
Virupaxappa Fakirappa Vs. Sherif Sab Mulla Masud Sab
Court: Mumbai
Decided on: Mar-02-1909
Reported in: 2Ind.Cas.494
Chandavarkar, J.1. The suit No. 505 of 1905, out of which this second appeal has arisen, was brought by the present respondents as representatives of the Mahomedan community of Betigiri against the appellants as representatives of the Hindu community, for a declaration that the plaintiffs were entitled to pass in procession with music by the temple of Shri Malikarjuna in Uppin Betigiri, and for an injunction restraining the defendants from preventing or obstructing the plaintiffs in the enjoynment of the plaintiffs' right.2. The suit was brought in consequence of an order which had been passed by the District Magistrate of Dharwar on the 20th of November 1905, under Section 44 of the Bombay District Police Act. The learned District Judge has allowed the right claimed by the plaintiffs in this suit in a qualified manner, that is, he has held them entitled to pass in procession with music by the temple and restrained the defendants from making, any noise during certain hours. And it is u...
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