Court : Mumbai
Reported in : (1910)12BOMLR457
Beaman J.1. The first point to be decided in this case is as regards the objection taken by defendant No. 2 to the maintainability of the suit in its present form by the plaintiff, having reference to the words of Section 66 of the new Civil Procedure Code. 1 cannot hold that that section, assuming that its language is intended to, and does, cover a case of this kind, can now preclude the plaintiff from carrying to its conclusion a suit which was instituted as far back as 1905. If it be further argued that the suit was equally unmaintainable under the terms of Section 317 of the old Code of Civil Procedure, which was then in force, I need only rest upon the actual words of that section. Defendant No. 2 is not a certified purchaser of the property in suit, nor does he stand in the shoes of the certified purchaser within the meaning of the decision in Hari v. Ramchandra ILR 1906 31 Bom 61. I must, therefore, decide that issue in the plaintiff's favour and against defendant No. 2.2. The f...
Tag this Judgment!Court : Mumbai
Reported in : (1910)12BOMLR545
N.G. Chandavarkar, Kt., J.1. Upon the evidence adduced in this case we are of opinion that the parties, who are Kamathis settled in Bombay, are governed for the purposes of inheritance by the law of the Mitakshara and the Mayukha, where these agree; where they differ, the Mayukha law must prevail.2. The property in dispute belonged originally to one Laxmibai. She had obtained it after marriage by way of gift from her husband on the nth of January, 1894. Therefore it became her stridhan of the kind designated in Hindu Law as anwadheya or gift subsequent to marriage. Laxmibai died in 1896, leaving a son by name Elissha and a daughter named Narsubai. As was held by this Court in Dayaldas Laldas v. Savitribai (1909) 12 Bom. L.R. 386, the anwadheya stridhan of a woman descends on her death to her stms and daughters jointly, not to the daughters alone. Accordingly, the property in dispute was inherited by Narsubai and her brother Elshetty in equal shares. Narsubai died in 1903, and the quest...
Tag this Judgment!Court : Mumbai
Reported in : (1911)13BOMLR90
Lawrence Jenkins, Kt., C.J. 1. The argument that the suit is barred by the law of limitation proceeds upon the assumption that there had been an application to the Court under Sections 278 to 283 of the Civil Procedure Code and a refusal of the application.2. It however has been determined in a prior suit, to which the plaintiff and the present appellant were parties, that the application to which we have alluded was not under those sections but under Section 287.3. That being so it is clear that the objection on the score of limitation fails. It is then suggested that the decree has been so framed as to give rise to the possibility of difficulty here. after.4. The suit is one brought by a sub-mortgagee against the original mortgagee who are his sub-mortgagors, and a purchaser of their rights. The appellant is the purchaser.5. The original mortgagor is not a party to the suit. It is clear, therefore, that the rights of the mortgagor cannot be affected by any decree in this suit.6. The ...
Tag this Judgment!Court : Mumbai
Reported in : (1910)12BOMLR462
Beaman, J.1. This is a rule taken out by defendant No. 3 in suit No. 708 of 1897 t0 nave an ex party decree passed against her on the 22nd of March, 1898, set aside.2. The defendant asks for this relief on the ground that no notice was served upon her, and incidentally sets forth certain facts which in substance would, if believed, show that the claim so far as it touched her was essentially false and should not have been decreed against her.3. Cause is shown against the rule on two grounds: (1) that there was a good service, and (2) even if there was no good service the application is time-barred.4. Upon the merits, disclosed in the affidavits laid before the Court, I have very little doubt that defendant No. 3 ought to succeed and that this is a case in which if the rule is to be discharged upon technical grounds there is a very great danger, to say no more, of real and serious injury being done to the defendant. But the plaintiff, who has opposed this rule, has insisted upon the Cou...
Tag this Judgment!Court : Mumbai
Reported in : (1910)12BOMLR517
Macleod, J.1. The insolvent has applied for a protection order under Section 25 of the Presidency Towns Insolvency Act. This application is opposed by two of his creditors. On the 16th January a similar application was refused by Davar J. and an appeal against that decision was dismissed. It has been urged before me that the situation is exactly the same as it was on the 16th January, and since the application was refused then I am bound to refuse it now. It has never been the practice for Commissioners in Insolvency under the Indian Insolvency Act to consider themselves bound by their previous decisions on applications for interim orders when it has been a matter for their discretion, and it by no means follows that because an application has been refused on the first occasion it must also be refused on the second occasion.2. The application of the 16th January was made when the new Act had only just come into force and I do not think the change effected generally by the Act in insolv...
Tag this Judgment!Court : Mumbai
Reported in : (1910)12BOMLR383
Batchelor, J.1. In a certain civil suit filed against a woman named Lakshmibai she propounded a will as part of her defence.2. The first Court held that the will was genuine, but on appeal the Assistant Judge was of opinion that the will was a forgery. Eight months after that decision the original plaintiff obtained the sanction of the Court to prosecute Laxmibai and the attesting witnesses of the will and the writer under Sections 193 and 467, that is to say, the sanction was obtained to prosecute Lakshmibai under Sections 193 and 467, and to prosecute the attesting witnesses and the writer, who are the present petitioners, under Sections 193 and 467.3. An application was made to the High Court against the grant of this sanction and the Chief Justice and my brother Davar set aside that sanction using the following language :-Eight months afterwards an application is made to the District Judge for sanction to prosecute. The District Judge has considered the matter very carefully and ha...
Tag this Judgment!Court : Mumbai
Reported in : (1910)12BOMLR988
Macleod, J.1. The plaintiff in this suit is a merchant carrying on business at Manchester in England. The defendants are a Registered Company carrying on business at Beawar outside the jurisdiction of this High Court. In 1907 the plaintiff commenced to contract with the defendants to sell their yarns which the defendants were to pay for in Bombay against documents and shipments of yarn were made in pursuance of such contracts. In respect of one contract after a portion of the yarn contracted for had been taken delivery of by defendants, they gave notice to the plaintiff that they would not take delivery of the remainder owing to inferiority of quality. The plaintiff accordingly did not ship the balance and claims as damages the difference between the contract price and the market price at the date of the notice. I shall call this claim A. In respect of yarn shipped under another contract the defendants refused to take delivery. The plaintiff claims the value of this shipment with inter...
Tag this Judgment!Court : Mumbai
Reported in : (1910)12BOMLR402
Arthur Wilson, J.1. This is an appeal from a judgment and decree of the High Court of Allahabad, which set aside those of the Subordinate Judge of Saharanpur and dismissed the plaintiff's suit.2. The plaintiff sued as the nearest reversionary heir of one Lala Mittar Sain, a member of the Jain Agarwala Community, who lived and died in the district of Saharanpur.3. The defence to the plaintiff's claim was based on the allegation that the defendant Jambu Parshad was the adopted son of the deceased Lala Mittar Sain, adopted by his senior widow4. After the death of her husband, and it was contended that the title of the adopted son excluded any right that might otherwise have existed in the plaintiff. The first Court decided against the adoption and made a decree in the plaintiff's favour. The High Court held that the adoption had taken place in fact and was valid in law, and therefore reversed the decision of the first Court. Hence the present appeal.5. That the adoption took place in fact...
Tag this Judgment!Court : Mumbai
Reported in : (1910)12BOMLR430
Arthur Wilson, J.1. This appeal has been brought against a judgment and decree of the Chief Court of the Punjab, which affirmed the decision of the District Judge of Delhi. The circumstances out of which the appeal arises can be briefly stated, and, as in their Lordships' opinion, the case must go back to the Chief Court for further consideration, their Lordships think it desirable to say nothing about the case which is not absolutely necessary.2. In the year 1902, a case was pending, in which the National Bank of India was plaintiff and the Delhi Cotton Mills Company, Limited, defendant, and on the 21st April of that year, the Chief Court, on appeal, made a money decree in favour of the Bank for a sum of over Rs. 97,000 and interest. On the 25th June in the same year, the premises and mills of the Cotton Mills Company were purchased, as a going concern, by the present plaintiff, at public auction, for a sum very much larger than the amount of the Bank's decree. On the 15th August in t...
Tag this Judgment!Court : Mumbai
Reported in : (1910)12BOMLR395
Arthur Wilson, J.1. This is an appeal against a Judgment of the Chief Court of the Punjab, which affirmed that of the Involvent Estates Court, Amritsar. The controversy involved in the appeal relates to an alleged conflict of jurisdiction between two Courts, both having Insolvency jurisdiction, but jurisdiction created by different legislative authority and different in its local extent.2. Under the Imperial Act of Parliament, n and 12 Viet., c. 21, relating to insolvency proceedings before what are now the High Courts in the Presidency towns in India, jurisdiction is conferred upon those Courts extending, for the present purpose, over the whole of India, and for many purposes over much wider limits.3. Under the Punjab Laws Act, IV of 1872, in a series of sections beginning with section 22, the Punjab Legislature has created a system of insolvency of its own, but, of course, such an Act can be effective only within the ambit of the jurisdiction of the Legislature which passed it. These...
Tag this Judgment!