Mumbai Court July 1911 Judgments
Motilal Virchand Vs. Chandrasangji Himatsangji
Court: Mumbai
Decided on: Jul-31-1911
Reported in: (1911)13BOMLR909; 12Ind.Cas.549
Basil Scott, Kt., C.J.1. On the 21st of June 1899 an application was made to the High Court praying that execution of the decree of the High Court in appeal No. 20 of 1898 from an original decree of the Assistant Judge of Broach might be stayed pending disposal of the appeal preferred by the petitioner to Her Majesty in Council.2. The application for stay was refused but it was ordered that Mohansang ji Hamirsang ji, the successful appellant to the High Court, should, before he was allowed to execute the decree, give security to the extent of the moveable property and mesne profits of the immoveable property for three years.3. In consequence of this order Hemchand Mulchand and Motilal Virchand executed a bond to the Assistant Judge of Broach on the 26th of August 1899 agreeing with the Court as follows :-'In case the order passed by the Honorable the High Court in appeal No. 20 of 1898 be set aside in the appeal preferred by the said defendants to the Privy Council, and the possession ...
Tag this Judgment!Chunilal Virchand Vs. the Ahmedabad Municipality
Court: Mumbai
Decided on: Jul-31-1911
Reported in: (1911)13BOMLR958; 12Ind.Cas.540
N.G. Chandavarkar, Kt., J.1. The preliminary question arising in this case is, whether there is an appeal from the decision of a District Court under Clause 3 of Section 160 of the Bombay District Municipal Act (Bombay Act III of 1901).2. That section provides a remedy for the determination of the amount of compensation, to which a person becomes entitled under Clause 3 of Section 92 of the Act, by reason of his land forming part of a public street and becoming vested in the Municipality in virtue of the last portion of the first clause of that section. Both the right to compensation and the remedy for the determination and apportionment of its amount are given by the Act itself; so the right must be asserted and the remedy pursued only in the manner and upon the conditions prescribed by the Act. This is on the well-known rule of law that, where a Statute creates a right not existing at common law and prescribes a particular remedy for its enforcement, then that remedy alone must be fo...
Tag this Judgment!Mirza Sadik HusaIn Vs. Musammat Kaniz Zohra Begam
Court: Mumbai
Decided on: Jul-29-1911
Reported in: (1911)13BOMLR826
Shaw, J.1. This appeal is presented from an Order dated the 27th November 1906, made by the Court of the Judicial Commissioner of Oudh, which affirmed an Order dated the 5th September 1906, made by the District Judge of Lucknow.2. It appears that one Mirza Agha Hasan Khan died on the 27th December 1901. He was survived by a widow, a daughter and a son. They were heirs of the deceased under the Mahomedan law of the Shiah sect, and the property fell to be divided amongst them in certain proportions. Mirza Agha Hasan Khan's property, however, was situated in various districts, and while the arithmetical division of ' the shares fell to be determined by law, it was considered by the heirs that it would be to their advantage that, instead of a large variety of fractional portions of property being taken by each heir in subjects situate, it might be, at a considerable distance from each other, and arrangement should be carried out by arbitrators whereby the shares falling to the ladies shoul...
Tag this Judgment!Thakur Rang Lal Singh Vs. Maharaja Sir Ravaneshwar Pershad Singh
Court: Mumbai
Decided on: Jul-27-1911
Reported in: (1911)13BOMLR823
Ameer Ali, J. 1. This is an appeal from a judgment and decree of the High Court of Bengal which affirmed the Order of the Subordinate Judge of Monghyr dismissing the application of the judgment debtors, appellants, under Section 311 of the Civil Procedure Code (Act XIV of 1882) to set aside a sale of certain landed property in execution of a mortgage decree.2. The grounds on which the sale was impugned in the first Court were two-fold, (1) that the property sold was a ghatwali tenure and therefore inalienable; and (2) that there was material irregularity in publishing and conducting the sale which resulted in substantial injury to the appellants.3. The first ground appears to have been abandoned in the High Court and is not pressed before this Board. The appellants now rest their case mainly on the provisions of Sections. 287 and 291 of the Code. They urge that on the 16th of May 1903 the sale was postponed to the 13th of July following and a sale proclamation was directed to issue fix...
Tag this Judgment!Bai Samrat Vs. Sardarsang Hamabhai
Court: Mumbai
Decided on: Jul-27-1911
Reported in: (1911)13BOMLR905; 12Ind.Cas.381
N.G. Chandavarkar, Kt., J.1. The suit was brought by the appellants, as usufructuary mortgagees, claiming relief by way of a permanent injunction to restrain the defendants from obstructing them in the enjoyment of their right as such mortgagees.2. The Subordinate Judge who tried the suit found upon the evidence that in the Samvat year 1962 the defendants did obstruct and adopted 'a really ingenious method' of harass' ing and harming the plaintiffs. Accordingly he granted injunction only in respect of the produce, which the plaintiffs entitled to get in respect of their mortgage for the Samvat year in question. But as to the future years, the Subordinate Judge rejected the claim for injunction upon the ground that there was nothing to show that the defendants intended to invade or would invade the plaintiffs' right.3. There was an appeal by the defendants and cross-objections were made by the plaintiffs. So far as the injunction granted by the Subordinate Judge in respect of the produc...
Tag this Judgment!Emperor Vs. Roger De Silva
Court: Mumbai
Decided on: Jul-27-1911
Reported in: (1911)13BOMLR1185; 12Ind.Cas.980
N.G. Chandavarkar, Kt., J. 1. We think that the proper sentence for the Magistrate to have passed in this case would have been one of imprisonment. Such cases, where cocaine is found to have been secretly possessed and sold without a license, must be dealt with so as to produce a deterrent effect. At the same time we do not think we should enhance the sentence materially where a long time has elapsed since the decision of the Court below was passed.2. In the present case Roger De Silva, who was accused No.1 in the Magistrate's Court, had been convicted in December 1910, and this application for enhancement of the sentence was made by Government to this Court on the 8th day of May 1911. No doubt, Government has to take some time after these cases have been brought to its notice, and, before it makes up its mind, it has to consult its legal advisers. But it is not necessary that Government should instruct the Government Pleader to move this Court to enhance a sentence. District Magistrat...
Tag this Judgment!Naginlal Chunilal Vs. the Official Assignee
Court: Mumbai
Decided on: Jul-25-1911
Reported in: (1911)13BOMLR900
N.G. Chandavarkar, Kt., J.1. This was a suit brought by the appellant against the Official Assignee of the estate of Dayabhai Chhotalal Vakil, an insolvent, to obtain a permanent injunction restraining the Official Assignee and another person from selling certain articles as belonging to the estate of the insolvent. In his plaint the appellant alleged that the articles in question belonged to him as owner, but that the defendants had taken possession of them as belonging to the insolvent. The plaintiff, therefore, claimed a permanent injunction and a declaration that the articles were of his ownership.2. The District Judge, in whose Court the plaint was filed, has held upon a consideration of Sections 7 and 86 of the Presidency Towns Insolvency Act (IIIof 1909) that the Court has no jurisdiction to try the suit, because the only Court which could take cognizance of such a suit is the Insolvency Court in the Presidency Town. We think that that view is not warranted by the provisions of ...
Tag this Judgment!Kanji Dwarkadas Vs. Haridas Purshottam
Court: Mumbai
Decided on: Jul-25-1911
Reported in: (1911)13BOMLR1211; 12Ind.Cas.897
Davar, J. 1. In the beginning of the year 1899 a country craft or dhow called 'Ali Madut' came to Bombay from Cutch and was chartered to sail to the sea-port town of Noshi Be in the Island of Madagasker. The plaintiffs acting as commission agents for four Borah merchants put on board the said dhow or ganjo as it is sometimes called, certain goods belonging to the said merchants. One of those merchants was Alibhai Jiwanji, the owner of the Ali Madut, who had insured his goods at Cutch through the plaintiffs' firm at that place. The other three desired the plaintiffs to insure their goods in Bombay and a policy of insurance was effected with the firm of Haridas Purshottam and Company. A kutcha policy was effected on the 2nd of February 1899 on which date the ship appears to have sailed from Bombay, and the formal policy was subsequently executed on the 7th of February 1899 and is Ex. F in the case. The goods belonging to the three merchants, for whom the plaintiffs' firm was acting as co...
Tag this Judgment!Chagan Chunilal Vs. Suka Barku
Court: Mumbai
Decided on: Jul-24-1911
Reported in: (1911)13BOMLR891
The plaintiff agreed, in 1901, to sell to the defendant his lands for Rs. 1,000, and put the hitter in possession. The terms of the contract were, (1) that the purchase money should be paid annually by instalments of Rs. 100 ench on certain fixed dates ; (2) that in case of default in the payment of the first instalment on the due date, the plaintiff should be entitled to recover it as rent and sue for possession of the lands ; (3) that in case of default in the payment of any three or four subsequent instalments on the due Gates the plaintiff should be entitled to recover possession of the lands and claim the unpaid instalments as rent; and (4) that on payment of all the instalments the title to the lands should be treated as having passed to the defendant by sale, but that in the meantime the plaintiff should continue owner thereof. The plaintiff sued for possession of the lands, alleging default, in the payment of the instalments of 1904, 1905 and 1906. The lower Courts, finding tha...
Tag this Judgment!Mahomed Ibrahim Abdul Rahiman Vs. Sheikh Hamja Mahomedally
Court: Mumbai
Decided on: Jul-24-1911
Reported in: (1911)13BOMLR895; 12Ind.Cas.387
N.G. Chandavarkar, Kt., J.1. In holding the present suit barred as res judicata by the previous suit No. 760 of 1906, the Courts below have mis-apprehended the nature of the two suits. The previous suit was for the redemption of a mortgage; the present is one in ejectment. In the former the plaintiff alleged that the defendant had taken the property now in dispute in exchange for another property held by him as mortgagee; and he sought to redeem it. The exchange by way of mortgage was held not proved and the suit was dismissed. It was a decision that the plaintiff had not proved the mortgage set up by him, and that, therefore, his suit for redemption did not lie. Now he sues on his title as owner to eject the defendant as trespasser. 'The relative rights and duties of owner and trespasser on the one hand and of mortgagor and mortgagee on the other are wholly different, and failure in a suit of simple ejectment does not in our opinion in any way bar the plaintiff in a subsequent suit to...
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