Mumbai Court July 1911 Judgments
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Bhaishanker Nanabhoy Vs. Morarji Keshavji
Court: Mumbai
Decided on: Jul-24-1911
Reported in: (1911)13BOMLR950; 12Ind.Cas.535
Beaman, J.1. Upon this preliminary issue two distinct points arise. First, whether a decree passed by consent be res judicata under Section 11 of the Civil Procedure Code. As to that there used to be a considerable conflict of opinion but I think I may now take it as settled by the decision in In re South American and Mexican Company [1895] 1 Ch. 37, that a consent decree has to all intents and purposes the same effect as res judicala as a decree passed per invitum; and this notwithstanding the words in Section 11 'has been heard and finally decided.' These words give ground for argument upon one point only, I think, that is, whether the matter in issue has literality been heard by the Court. It has been finally decided, indeed much more finally decided by a consent decree than by a decree par invitum, for against the consent decree there is no appeal; and although it has often been said that a consent decree represents no more than an agreement of parties, I have always felt much doub...
The Collector of Poona Vs. Bai Chanchalbai
Court: Mumbai
Decided on: Jul-20-1911
Reported in: (1911)13BOMLR690; 12Ind.Cas.30
N.G. Chandavarkar, J.1. This is a suit brought by the Collector of Poona under Section 539 of the old Code of Civil Procedure (Act XIV of 1882), alleging a breach of trust on the part of the trustee of the property in dispute, which is claimed to be a public trust for religious purposes. Defendant No. 2 is the trustee against whom the breach is alleged ; defendant No. 1 represents the person to whom the property is alleged to have been alienated by the trustee. At the trial in the Court of the Assistant Judge at Poona a preliminary question was raised whether defendant No. 1 was a proper and necessary party to such a suit brought under Section 539. That Court answered the question in the negative on the authority of the decisions of this Court in Lukshmandas Parashram v. Ganpatrav Krishna ILR (1884) 8 Bom. 365 Vishvanath Govind ILR (1890) 15 Bom 148 Deshmane v. Rambhat Kazi Hassan v. Sagun Balkrishna ILR (1899) 24 Bom. 170 that a suit to eject a trespasser from trust property is outsid...
Trimbak Bhikaji Vs. Shankar Shamrao
Court: Mumbai
Decided on: Jul-20-1911
Reported in: (1911)13BOMLR947; 12Ind.Cas.532
Basil Scott, Kt., C.J.1. In this case the plaintiff sues the defendants for possession of certain property.2. The first defendant claims to be the adopted son of a previous owner named Balaji who died in 1902 leaving a daughter named Jiji.3. The plaintiff claimed under a deed of gift dated the 25th of February 1907 executed in his behalf by Jiji and alleged that the defendant No. 1's possession was unlawful in that he was a sister's son of Balaji and therefore one who could not be adopted by Balaji.4. The only question which has been argued before us is whether it is open to defendant No. 1, failing in his defence as to adoption, to set up a case that the plaintiff's deed of gift from Jiji who was the heir of the last owner, is invalid.5. The learned District Judge held that the deed of gift relied upon by the plaintiff is not proved to be a valid one. He found that it was a registered deed and was formally proved but he said he was not satisfied that Jiji put her signature to it knowi...
Balu Ravji Gharat Vs. Gopal Gangadhar Dhabu
Court: Mumbai
Decided on: Jul-19-1911
Reported in: (1911)13BOMLR944; 12Ind.Cas.531
Basil Scott, Kt., C.J.1. The only point argued in this appeal is whether the mortgage deed, Exhibit 32, is duly attested by two witnesses in accordance with the provisions of Section 59 of the Transfer of Property Act. The objection taken is that one of the two witnesses attesting it was Sadu, a person interested in the money advanced though not himself a party to the document. The objection that a person was not a good witness on the ground that he was interested in the transaction was based upon the rule-of evidence, which finds no place in modern English or Indian Procedure, that a person was not to be believed if he testified in a matter in which he was interested. The only trace of its survival is in the statutory provisions which debar legatees from taking legacies under wills which they attest.2. In Seal v. Claridge (1881) 7 Q.B.D. 516, much relied upon by the appellants' pleader, the old case of Swire v. Bell (1793) 5 T.R. 371, which the obsolete rule was pushed to its farthest...
The Municipality of Hubli Vs. Ralli Brothers
Court: Mumbai
Decided on: Jul-19-1911
Reported in: (1911)13BOMLR1138; 12Ind.Cas.884
Basil Scott, Kt., C.J.1. This is an appeal from a decree of the First Class Subordinate Judge of Dharwar awarding Rs. 9,677, to the plaintiffs as compensation for injury done to their cotton by water which the defendants, in breach of their duty, allowed to escape on to the plaintiffs' premises.2. The defendants, the Municipality of Hubli, are a body corporate under the District Municipalities Act (III of 1901). By virtue of Section 50 of that Act property of various kinds is vested in them to be held and applied by them as trustees subject to the provisions and for the purposes of the Act and includes all public markets, tanks and works connected with or appertaining thereto, drains and culverts, and by Section 54 it is provided that it shall be the duty of every Municipality to make reasonable provision for inter alia the constructing altering and maintaining all public markets, drains, drainage-works, culverts, tanks, dams and the like.3. In or about the year 1904, the Municipality ...
Ganpat Dhaku Teli Vs. Tulsiram Ukha Dhangar
Court: Mumbai
Decided on: Jul-18-1911
Reported in: (1911)13BOMLR860; 12Ind.Cas.271
N.G. Chandavarkar, Kt., J.1. The sale impeached in this case was by a Hindu widow of property which she had inherited from her husband. It was effected partly for the purpose of paying off several debts, which the widow had incurred in the interests of the property, and partly for the expenses of a pilgrimage by her to Pandharpur and of her daughter's betrothal ceremony. No objection is raised to the sale, so far as its consideration consisting in the payment of debts is concerned. What is urged is that the expenses of the pilgrimage and of the betrothal are not within the definition of legal necessity required by Hindu law to render a sale by a widow valid and binding upon the reversioners.2. As to the pilgrimage, we must bear in mind the position of a Hindu widow with reference to the estate she inherits from her husband and the duties she owes to his soul. As observed by the Judicial Committee of the Privy Council in The Collector of Masulipatam v. Cavaly Vencata Narrainapah (1861) ...
Ghelabhai Gavrishankar Vs. Uderam Ichharam
Court: Mumbai
Decided on: Jul-18-1911
Reported in: (1911)13BOMLR989; 12Ind.Cas.577
N.G. Chandavarkar, Kt., J. 1. The dispute in this case relates to a house, which originally formed part of the property belonging to one Ambaram Bhikariram. He by his will made in the year 1849 bequeathed the property to his wife for life, and, on her death, to Bai Ganga, his widowed daughter-in-law, also for life; and he further directed that on their death his four executors, named in the will, should make shivarpana of the property, that is to say, they should make a public religious trust of it by devoting it to the worship of the Hindu deity, Shiva. On his death, his widow took under the will. On her death, his daughter-in-law succeeded to the estate and she sold the house now in dispute. The present respondents claim to be in possession in virtue of that sale.2. The executors, charged with the duty of making a public trust of the property, predeceased the daughter-in-law. She herself died in the year 1898. The trustees, named by the testator for the purpose of making and completi...
Anandappa Vs. Totappa
Court: Mumbai
Decided on: Jul-18-1911
Reported in: 33Ind.Cas.441
Basil Scott, C.J.1. This suit was instituted by the plaintiff for a declaration that a deed of exchange, dated 15th of June 1900 was not binding on him and for recovery of possession of his one-fourth share in certain lands situated in Bailkur.2. The deed of exchange purported to be between the plaintiff, a minor interested in his own right as the adopted son of a Vatandar acting through his natural father of the one part and the natural grandfather of the plaintiff of the other part.3. The learned Subordinate Judge held that the transaction in dispute was not in the interests of or for the benefit of the plaintiff; but he held that as the suit had not been brought within three years of the date of the deed of exchange, it was bared by the provisions of Article 91 of the Indian Limitation Act.4. The plaintiff preferred an appeal to the District Judge of Bijapur. The issues raised for determination were: (1) Whether the exchange effected by the deed was the interests or for the benefit ...
Haji Abdulla Haji Sumar Vs. the Secretary of State for India
Court: Mumbai
Decided on: Jul-17-1911
Reported in: (1911)13BOMLR883; 12Ind.Cas.369
N.G. Chandavarkar, Kt., J.1. The question whether the decree of the lower Court is right depends upon the main question argued in this case, whether the village in dispute is not an alienated village within the meaning of Clause (19) of Section 3 of the Bombay Land Revenue Code (Bom. Act V of 1879).2. The word 'alienated' is defined in that Code to mean 'transfer, in so far as the rights of Government to payment of the rent or land-revenue are concerned, wholly or partially, to the ownership of any person.'3. The question is whether this village has been transferred to the ownership of the present appellant, so far as the rights of Government to the land-revenue are concerned. That is a question which must be decided upon the proper construction of the howl (Exhibit 24) granted to the appellant's predecessor-in-title in the year 1844-45.4. The terms of the howl leave no matter whatever for ambiguity. In dealing with the terms of that document it is necessary to bear in mind that in ord...
Kashiram Mansing Vs. Rajaram Dayaram Patil
Court: Mumbai
Decided on: Jul-13-1911
Reported in: (1911)13BOMLR879; 12Ind.Cas.356
Basil Scott, Kt., C.J.1. This is an application to us to exercise our revisional powers under Section 115 of the Civil Procedure Code with reference to an order passed by the Collector of East Khandesh purporting to be made under the revisional powers conferred upon him by Section 23(2), of the Marnlatdars' Courts Act (Bombay Act II of 1906).2. The applicant was the defendant in a suit instituted in the Court of the Mamlatdar by the opponent. The Court has power under the Mamlatdars' Courts Act to give immediate possession of lands used for agriculture to any person dispos sessed or deprived thereof otherwise than by due course of law provided that the suit is brought within six months from the date on which the cause of action arose, the cause of action being deemed to have arisen on the date of the dispossession.3. It is provided in Section 19 that if the plaintiff avers that he has been unlawfully dispossessed of any property the Mamlatdar shall proceed to hear all the evidence that...
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