Mumbai Court August 1909 Judgments
Hanmanta Yamaji Patil and anr. Vs. Gopal Sadashiv Shimij and ors.
Court: Mumbai
Decided on: Aug-31-1909
Reported in: 4Ind.Cas.264a
1. The District Judge has held that the plaintiffs' right to redeem is barred by the adverse possession of the defendants (respondents) upon the ground that the decree, in execution of which the defendants' predecessor-in-title purchased the property at a Court sale, was one to which the plaintiffs were not parties, and that what was sold in execution was simply the right, title and interest of their co-parceners, Bagaji and Pandu. If the plaintiffs were not parties to the decree or were not bound by it and also the sale consequent upon it, the mortgagee as to them could not by his Court-purchase turn his possession into that of a trespasser so as to extinguish the right of redemption of the mortgagors, who were not parties to the decree, after twelve years from the date of that purchase.2. Though we cannot agree with the District Judge on the question of adverse possession, we must confirm his decree upon a point, which, though not raised by him, had been raised in the first issue in ...
Tag this Judgment!Rev. Robert Ward Vs. Velchand Umedchand
Court: Mumbai
Decided on: Aug-31-1909
Reported in: 4Ind.Cas.262
1. An application was made by one Lallu Panachand to the District Judge of Ahmedabad under the Guardians and Wards Act VIII of 1890 that the applicant might be appointed the guardian of the person of his minor brother Vadilal.2. As to the main facts there is no dispute. The father of the minor died at Kapadwanj leaving two sons and a widow and property consisting of a house and shop. The sons are the applicant Lallu and the minor Vadilal. The widow was the mother of the minor. Within a year of her husband's death the widow died. Lallu thereupon sold the family house and shop and went to Broach and thence to Baroda where he embraced Christianity and became a preacher of the American Mission in that place. He was then sent as a preacher to Dhola in Kathiawar. He left his minor brother Vadilal in the Mission House. Vadilal remained there from May 1906 until February 1909. In that month he was removed by Lallu without the consent of those in charge of the Mission, Lallu having previously b...
Tag this Judgment!Dullabhji S. Sanghani and Anna Eama Vs. the G.i.P. Ry. Co.
Court: Mumbai
Decided on: Aug-28-1909
Reported in: (1910)12BOMLR73
Beaman, J.1. These are two consolidated suits by two third-class passengers, on the defendant Company's train, for damages. The plaintiffs complain of injuries received and attribute them to the defendants' negligence. The defendants deny negligence in fact and further plead that, if there was negligence on their part, there was contributory negligence on the plaintiffs' part disentitling them to recover.2. The facts, which are virtually undisputed, arc, that the plaintiffs were travelling by the i-30 local up train from Matunga to Masjid on the 22nd March 1908. A short way before Masjid station, between Mazagaon and Masjid, the down Nagpur mail passed at high speed. A door of one of the compartments on that train was open and swinging. It caught the projecting limbs of the plaintiffs inflicting very serious injuries. The first question I am to decide is the question of liability. As to the second plaintiff, the defendant contends that 'he had opened the door and was standing with his ...
Tag this Judgment!A. Haji Ismail and Co. Vs. Rabiabai
Court: Mumbai
Decided on: Aug-28-1909
Reported in: 4Ind.Cas.135
Macleod, J.1. The two defendants in this suit were partners and in a suit No. 96 of 1907 filed by the first defendant against the 2nd defendant for dissolution of partnership a receiver was appointed to get in the assets. The receiver has now in his hands a sum of about Rs. 1,698 as assets and it is not considered likely that he will recover anything more.2. The plaintiffs in this suit having obtained a decree against the defendants were granted leave to issue execution against the assets of the partnership in the hands of the receiver and a prohibitory order was issued on the 19th June 1908. They have now taken out a garnishee notice against the receiver to pay to the plaintiffs the money in his hands. I am told that no other claims have been made against these assets but a question arises whether they are not subject to the lien of the solicitors in the partnership suit for their costs.3. The rule at common law that a solicitor is entitled to a lien for his costs on property recovere...
Tag this Judgment!Damodar Nandram and ors. Vs. Manubai
Court: Mumbai
Decided on: Aug-24-1909
Reported in: 4Ind.Cas.264
1. The lower appellate Court has fount that the respondent is an agriculturist and on that footing has taken the accounts of the mortgage transaction concerned in this case. But is contended that the finding as to the status of the respondent is erroneous in law, because the Act applies only to a person who was an agriculturist when the liability in dispute was incurred. Reliance is placed in support of that contention upon the judgment of this Court in the case of Mahadev Narayan Lakhande v. Vinayak Ganagadhar Purandhare 11 bom. L.R. 721: 3 Ind. Cas 769 33 B. 504. That decision applies to a state of facts different from the present and lays down no such proposition as is contended for Section 2 of the Dekkhan Agriculturist' Relief Act gives two definitions of the term 'agriculturist,' one in Clause 1 and the other in Clause 2. Where a party to a suit is filed by or against him, the former clause applies. That is the case of the respondent before us. In the decision above cited the fac...
Tag this Judgment!Damodar Khimji Vs. Dayal Mowji
Court: Mumbai
Decided on: Aug-23-1909
Reported in: 4Ind.Cas.283
Macleod, J.1. One Gokaldas Jetha died on 6th March 1904 leaving a Will. In that Will he sets out what property he is possessed of and particularly mentions a debt of about Rs. 2,000 due by Dayal Mowji. In effect he appoints his wife manager of his estate with full powers of management during her lifetime. He then goes on to say After the death of my wife my two executors Dayal Mowji Kalianji and Damodar Khimji, shall' do such and such things 'with my estate' and directs how the residue shall be disposed of. He concludes 'my executors shall act in accordance with the directions contained in this Will on their true religious faith and my wife shall act with the advice of my executors.'2. Two or three weeks after the death of the testator Dayal Mowji and Damodar Khimji took away the Will from the cupboard of the deceased's house and Dayal Mowji wound up the shop belonging to the deceased, handing over the proceeds to the widow. It appears, however, that nothing farther was done by either ...
Tag this Judgment!Emperor Vs. Percy Henry Burn
Court: Mumbai
Decided on: Aug-18-1909
Reported in: 4Ind.Cas.268
Chandavarkar, J.1. We do not call upon the learned Advocate-General to reply upon these appeals from the order of convictions and sentences made by the Chief Presidency Magistrate of Bombay.Since the last hearing of the appeals on Thursday, we have had ample time to go through and carefully consider the full arguments addressed to us in support of the appeals both by Mr. Branson and Mr. Binning and we have arrived at the conclusion that the judgment of the learned Magistrate under appeal must be confirmed.2. At the outset I should notice a legal argument urged by both of the learned Counsel. They complained that contrary to law the Magistrate had allowed the prosecution, after the charges had been framed against the accused and they had made statements, to examine fresh witnesses, who had not been named originally and summoned, as required by Clause 2 of Section 252 of the Code of Criminal Procedure. This procedure, it was contended, was a direct violation of the terms of Section 256 o...
Tag this Judgment!Mathuradas Gokuldas and Co. Vs. Narbadashankar Harjivan
Court: Mumbai
Decided on: Aug-17-1909
Reported in: 4Ind.Cas.99
Beaman, J.1. This is a suit to recover on certain forward contracts for the purchase of rice, the due dates of which were the Pagan and Chaitar Vaidas of 1965 corresponding with February- March, and March-April 1909. The plaintiff's contention is that the defendant refused to take delivery as the market had gone against him; consequently the plaintiff sold the goods at his risk and on his account; and now claims the difference between the contract and the market rate. A preliminary difficulty was settled by plaintiff consenting to accept certain rates as the measure of damages. What was realised at the sales and whether or not the sales were bona fide and properly conducted becomes of no further consequences.2. The defence is two fold: (1) General, that the contracts were wagering contracts. (2) That in respect of the contracts for the Fagun Vaida the plaintiff was in fault for not giving the defendant the delivery orders in time. Under the rules of the Rice Merchants Association the p...
Tag this Judgment!Government Pleader Vs. Raghunath S. Sule
Court: Mumbai
Decided on: Aug-17-1909
Reported in: 4Ind.Cas.266
ORDERChandavarkar, J.1. In the criminal case, it is true, we acquitted the pleader, Mr. Sule. But that was because the evidence fell somewhat short of the strict proof that was necessary to convict him of the offence of cheating and to show, beyond all reasonable doubt, that he was privy to the offence with the Marwadi Hazarimal. Under our disciplinary-jurisdiction at present, what we have to consider is whether the pleader has been guilty of such misbehaviour or professional misconduct as to warrant our punishing him under that jurisdiction. Here too, no doubt, as the inquiry is of a quasi-criminal character, we must have strict proof but the proof required is not of cheating but professional misconduct. In my opinion, the evidence and circumstances are sufficient to enable us to come to the conclusion, that instead of protecting the interests of his client, the pleader was in this transaction of the mortgage deliberately protecting the interests of his client's creditor in breach of ...
Tag this Judgment!Rama Dattu Vs. Sakharam Lingu and ors.
Court: Mumbai
Decided on: Aug-16-1909
Reported in: 4Ind.Cas.256
1. Section 90 of the Transfer of Property Act gives a substantive right to a mortgagee who has obtained a decree for sale under Section 88 to apply for a personal decree where the proceeds of the sale are not sufficient to liquidate the decretal debt and where the balance is legally recoverable from the judgment-debtor. Whether the balance is legally recoverable or not is a question which must depend upon evidence and the Court ought to go into it even though the judgment-creditor had not asserted and proved the right in question in the suit and even though the decree passed under Section 88 provided for no such relief. The decree could not provide for it because the terms of the section and the form prescribed for a decree under it do not allow the relief. The right to a personal decree is given by Section 90 under certain circumstances and these the judgment-creditor must prove. The lower Court is clearly wrong in holding that the Appellant ought to have proved the right he now claim...
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