Court : Mumbai
Reported in : AIR1914Bom127; (1914)16BOMLR668
Basil Scott, Kt., C.J.1. In this case we think that the learned Judge was wrong in not enforcing the decree according to its terms. The decree is quite explicit. The first instalment is to be paid on or before the 1st of March 1908. Thereafter the defendant is to go on paying to the plaintiff an instalment every year. If the defendant fail to pay any two instalments at the proper time the plaintiff is to take the property into his possession by right of ownership. The learned Judge of the lower appellate Court has held that the first two instalments were paid too late, but were accepted, and that subsequent two instalments have not been paid in time. There has been therefore a default with regard to the last two instalments which entitled the plaintiff to take possession of the property. The case is very similar to Bapu v. Vithal (1), which we recently decided following the decision of Mr. Justice North in Australasian Automatic Weighing Machine Co. v. Walter [1891] W.N. 170., where it...
Tag this Judgment!Court : Mumbai
Reported in : AIR1914Bom192; (1914)16BOMLR577
Beaman, J.1. In this suit the plaintiff Bai Saraswati, daughter of the testator Mahasukhram, sued on behalf of herself and her minor son for the construction of a will. It has been contended on behalf of the appellants, the cousins of the deceased testator, that the minor has not been properly represented in this litigation since his interests are manifestly in conflict with those of his natural mother Saraswati. In the view we take, however, we think that it is impossible that the minor could be prejudiced. It has not been contended here, and we think that it could not be contended, that upon any construction of the will the minor would obtain any portion of the estate, nor is he under the Hindu law an heir to the deceased in the event of there being an intestacy. The minor, therefore, has clearly no real interest in this suit. The contest lies between Saraswati, who in the event of an intestacy would take the whole estate, and the cousins of the deceased Mahasukhram, who are the appe...
Tag this Judgment!Court : Mumbai
Reported in : (1914)16BOMLR863
Ameer Ali, J.1. The suit that has given rise to the present appeal was brought by the plaintiffs in the Court of the District Judge of Balaghat, in the Central Provinces of India, for possession of certain properties which originally belonged to one Laxmanrao, whose next-of-kin or bandhus they claim to be under the law of the Mitakshara.2. Laxmanrao died in 1851, leaving him surviving his widow Jankibai and a daughter Chitkoobai, both since deceased. The defendant Venkatesh is Chitkoobai's husband. On Laxmanrao's death without male issue his inheritance devolved on Jankibai. She held possession of the properties in suit as a Hindu widow until her death in 1883, when Chitkoobai succeeded to her father's estate. She died on the 7th of May 1894, leaving the first defendant, her husband. The second defendant is a son adopted by him after Chitkoobai's decease.3. The present action was not instituted until March 1906. The plaintiffs claim that the inheritance to Laxmanrao opened to them on t...
Tag this Judgment!Court : Mumbai
Reported in : AIR1914Bom195; (1914)16BOMLR566
Dinshaw D. Davar, Kt., Acting C.J.1. In this appeal we do not think it necessary to trouble the learned Advocate General to reply on behalf of the plaintiffs. The two grounds urged before us in support of the appeal are, firstly that this Court has no power to make an order of a mandatory nature on an interlocutory application, and secondly, on the merits that this order should not have been made.2. Having regard to the very clear wording of Order xxxix, Rule 2, and to the fact that this Court has always exercised the power of remedying an injury or wrong by a mandatory injunction on an interlocutory application, I have no doubt whatever that this Court has power to make a mandatory order on an interlocutory application. If the Court had no such power it would be in the power of a party to cause insufferable inconvenience and grave injury to another during the whole time that would elapse between the commission of the wrongful act and the hearing of the suit filed to remedy the wrong a...
Tag this Judgment!Court : Mumbai
Reported in : AIR1914Bom184; (1914)16BOMLR653
Beaman, J.1. A suit had been instituted and it is alleged that the plaintiff and one of the defendants after the institution of the suit entered into an agreement to submit the matters in difference between them to arbitration. Thereupon the defendant moved the Court to stay the further progress of the suit. The first Court refused, and on appeal the learned District Judge was of opinion that the defendant's application could not be sustained and that the suit must proceed.2. We are asked to interfere in the exercise of our revisional jurisdiction and to set aside that order of the learned District Judge. It appears to me that the agreement alleged to have been made between the plaintiff and one of the defendants does not fall under any of the clauses of the second Schedule of the Civil Procedure Code. The first sixteen of those clauses exhaust the whole process of arbitration after the suit has been instituted and the parties desired to submit their differences to arbitration under th...
Tag this Judgment!Court : Mumbai
Reported in : (1914)16BOMLR853
Ameer Ali, J.1. These consolidated appeals from certain decrees of the High Court of Madras arise out of a number of suits brought by the plaintiff-respondent in the Court of the Head Assistant Collector of the Bezwada Division, under the provisions of Section 9 of the Madras Rent Recovery Act (Act VIII of 1865). The object of all the actions was to enforce by legal process the acceptance by the defendants of the Pattas or leases he had tendered to them.2. The scope of the material sections of Madras Act VIII of 1865 was considered by their Lordships in Parthasarathi Appa Row v. Chevendra Venkata Narasayya ; it is sufficient, therefore, to say in this case that under this Act the landlords are required to enter into written engagements with their tenants, in default of which no suit is maintainable to enforce the terms of the tenancy, and that in case of the refusal by the tenant to accept a Patta such as the landlord is entitled to impose,' the landlord can proceed under Section 9 to ...
Tag this Judgment!Court : Mumbai
Reported in : AIR1914Bom254; (1914)16BOMLR571
Beaman, J.1. One Sakhidas, claiming to be a permanent tenant of lands in a Bhag, sold his permanent tenancy right to the plaintiffs. The Collector, after the death of Sakhidas, intervened under Section 3 of Bombay Act V of 1862, removed the plaintiffs, and placed the Bhagdar, now defendant, in possession. The plaintiffs then brought this suit and the Courts below decided against them.2. On Second Appeal a Bench of this Court consisting of Scott C.J. and Chandavarkar J. remanded three issues to the lower appellate Court. The first two are interesting because they indicate clearly enough that at that time the learned Judges were disposed to think that if permanent tenants existed in these Bhagdari and Narwadari tenures their rights of alienation could only be restricted by custom. It might be difficult to reconcile that opinion with another decision given by Scott C.J. and Batchelor J. Jijibhai v. Nagji (1909) 11 Bom. L.R. 693, but for the purposes of this judgment it will be sufficient,...
Tag this Judgment!Court : Mumbai
Reported in : AIR1914Bom252; (1914)16BOMLR637
Beaman, J.1. A decree was sent to the Collector for execution under Section 68 of the Civil Procedure Code. The Collector appears to have put up the property of the judgment-debtor for sale, to have sold it, and given the purchaser a sale-certificate. Thereafter the present opponent claiming to be in possession in his own right, appears to have obstructed the auction-purchaser, and the Collector removed him, as he has power to do, uncier Rule 14(1) made under Section 70 of the Civil Procedure Code. Thereupon the opponent went to the Court which passed the decree and obtained from it an order under Rule 101 of Order xxi. Against this the present applicant the auction-purchaser has moved this Court in the exercise of its extraordinary jurisdiction to declare that the Subordinate Judge's order under Order xxi, Rule 101, was made in the circumstances stated, without jurisdiction. I think that the true answer to the question which arises here, a question which must frequently arise in simil...
Tag this Judgment!Court : Mumbai
Reported in : AIR1915Bom68; (1915)17BOMLR49
Beaman, J.1. The plaintiff in this appeal has raised three contentions; (1) that the Court below was in error in holding that of the alleged consideration of Rs. 5,000, Rs. 1,300 were not proved to have been paid; (2) that the Court below was in error in exempting from the operation of the mortgage five Survey Numbers 183 and 185, held by the Court below to belong to defendant No. 3, and Nos. 155, 156, and 157 held by the Court below to belong to defendant No. 4; (3) that the instalments allowed by the Court below are unjustifiable with all the circumstances of the case; and that this Court ought to alter that part of the decree of the Court below, even though it confirms the rest of the decree. Upon all these points after hearing very full arguments on behalf of the appellant and of the respondents Nos. 3 and 4, we are of opinion that the appellant is entitled to succeed. We think that the Court below took much too strict a view of the requirements of proof in respect of Rs. 1,300 hav...
Tag this Judgment!Court : Mumbai
Reported in : AIR1914Bom176; (1914)16BOMLR525; 25Ind.Cas.380
Beaman, J.1. After having given this nice question our most careful consideration we think that in view of the recent decision of this appeal Court in Amarchand & Co. v. Ramdas (1918) 15 Bom. L.R. 890, it must be taken as settled law that a railway receipt is a mercantile document of title. That being so, we think it necessarily follows that the endorsee of such a railway receipt has sufficient interest in the goods covered by it to maintain an action of this kind. We are, therefore, of opinion that the decision of the Subordinate 'Judge with Small Cause Court powers was not according to law. Reversing his decision upon the point just mentioned we agree with -his findings of fact, and now order that the decree be made in the plaintiff's favour in the terms of those findings. The defendant-Company must pay all the costs....
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