Court : Mumbai
Reported in : AIR1915Bom92(2); (1915)17BOMLR141
Beaman, J.1. The plaintiff brought this suit to recover certain land from the possession of defendant No. 1, who, he alleged, was his tenant. He appears to have joined defendants 2 and 3, because, in collusion, as he says, with defendant No. 1, the name of defendant No. 2 had been entered as owner of this land, or part of it, in the Record of Rights.2. The learned Judge of first appeal has broken up the land into two parts, in respect of one of which he has decreed the plaintiff's claim in full, holding that that land was in the possession of defendant No. 1 as tenant of the plaintiff. In respect of the other portion of the land in suit, the learned Judge of first appeal appears to have come to the conclusion that that land was de facto in possession of the defendants, and therefore, that the plaintiff's suit fell under Article 142 of the second schedule to the Limitation Act. Accordingly, he held that the plaintiff had been unable to prove possession of this portion of the plaint land...
Tag this Judgment!Court : Mumbai
Reported in : AIR1915Bom54; (1915)17BOMLR144
Beaman, J.1. This is a reference by the District Judge of Poona under Section 54 of the Dekkhan Agriculturists' Relief Act. The principal question referred to us, put in the simplest language, is whether a mortgagee having two mortgages of different dates upon the same property may sue upon the mortgage of later date first, and having had the property sold without reference to the prior mortgage can thereafter bring a separate suit on the prior mortgage. We think that he cannot do so. In our opinion, the question is not to be answered under Order II, Rule 2. The causes of action certainly are distinct. It could hardly be seriously contended, we think, that in such circumstances if the mortgagee allowed the prior mortgage to be time-barred, he could not sue upon the puisne mortgage, or again, that by doing so, he could revive the prior mortgage which had become time-barred. Thus, it is clear, that the causes of action are not the same. The answer then will have to be sought by reference...
Tag this Judgment!Court : Mumbai
Reported in : AIR1914Bom118; (1914)16BOMLR733
Basil Scott, Kt., C.J.1. The appellant's claim is that he should be paid in full by the Liquidator of the Bombay Credit Bank the amount deposited by him in 1910 as security for the faithful discharge of his duties as the agent of the Bank's branch at Ahmedabad.2. The money was originally placed by the Bank Manager to an ordinary Fixed Deposit Account bearing interest at six per cent, but upon objection being made by the appellant it was transferred in 1911 to the Security Deposit Account bearing interest at the same rate as before. There was a separate ledger kept by the Bank for such accounts, and after 1911a counterfoil receipt-book specially made out for Security Deposit Accounts was prepared and from it a receipt was given to the appellant for his money held at interest.3. The Liquidator contends and the learned Chamber Judge has held that the appellant can only rank as an ordinary creditor in the liquidation. The appellant contends that the money is earmarked and must be treated a...
Tag this Judgment!Court : Mumbai
Reported in : AIR1914Bom237(1); (1914)16BOMLR754
Basil Scott, Kt., C.J.1. This is a decree passed by the Assistant Judge of Dharwar for dissolution of marriage under the Divorce Act, The Assistant Judge presumed that lie had jurisdiction, believing that the suit had been referred to him for trial by the District Judge under Section 16 of the Bombay Civil Courts Act. We have referred to the District Judge and we find that as a matter of fact the case was not referred by him to the Assistant Judge, but it seems to have been sent to the latter by the Clerk of the Court, as though it were a mere matter of administrative routine, and the question of referring it under Section 16 was never brought before the District Judge at all.2. We are of opinion, however, that even if it had been referred by the District Judge to the Assistant Judge, the latter would have had no power to deal with the case under Section 16 of the Bombay Civil Courts Act; for though Section 16 empowers the District Judge to refer to the Assistant Judge suits, where the...
Tag this Judgment!Court : Mumbai
Reported in : AIR1915Bom10; (1915)17BOMLR115
Macleod, J.1. One Gokuldas Kanji, a Bhatia, died in Bombay about the 18th December 1910 leaving a widow Gangabai and a daughter Kashibai, a concubine Bayabai, plaintiff in, the suit, and several illegitimate children said to be by her. By his will he appointed defendants 1 to 5 in this suit executors and executrix. Clause 7 of the will runs as follows :-In accordance with the directions I am going to give in private to trustee No. 1 out of the trustees appointed by me my trustees should entrust to Haridas Rs. 5000 that may be received from my life-policy and the shares of Tata & Co. also should be transferred to the person whose name will be disclosed by Haridas.2. The said Gangabai filed suit No. 24 of 1911 against the said executors and executrix, praying, inter alia, (a) that the estate of Gokuldas might be administered on the footing that he had died intestate or in the alternative on the footing of the will, if proved to be genuine and valid; (b) that if so far as might be necessa...
Tag this Judgment!Court : Mumbai
Reported in : AIR1914Bom260; (1914)16BOMLR972
Basil Scott, Kt., C.J.1. This is an appeal from a decree of Mr. Justice Macleod dismissing the suit.2. The suit was filed by Bansidhar Lachminarayen now an insolvent and represented by the Official Assignee to recover from the defendants Rs. 3,000 with interest from the 10th June 1912 upon a plaint containing the following allegations:-3. On the 10th of june 1912, the plaintiff received a letter addressed to his firm in Bombay purporting to be from one Ramlal Ramprasad of Harpalpur in Alipur State in the Bundelkhand Agency. The letter enclosed what purported to be a railway receipt for 300 bags of linseed stated to have been consigned by Ramlal from Ranipur station and the plaintiff was asked to sell the goods and meantime to accept and pay on presentment two Hundies for Rs. 3000 each dated the 15th JethSud 1969 drawn by Ramlal in favour of the second defendant firm of Munalal Gayaprasad. On the same day one of the Hundis being a Shah Jog Hundi drawn on the plaintiff by Ramlal in favor...
Tag this Judgment!Court : Mumbai
Reported in : AIR1914Bom238; (1914)16BOMLR746
Basil Scott, Kt., C.J.1. This is a suit for the recovery by an Inamdar of sums payable by a Khatedar in respect of certain immoveable property held by him, under the Inamdar as his superior holder. It is contended that being for an amount less than Rs. 500, and cognizable by a Court of Small Causes, no second appeal will lie. The question is whether it is cognizable by a Court of Small Causes. We have been referred on the part of the appellant, to Article 13 of Schedule II of the Provincial Small Cause Courts Act IX of 1887 which excepts from the cognizance of a Court of Small Causes a suit to enforce payment of dues when the dues are payable to a person by reason of his interest in immoveable property. Now the sums payable by an inferior holder to a superior holder in the Bombay Presidency are in another Act of the Imperial Legislature characterised as dues (see Revenue Jurisdiction Act X of 1876, Section 5, Clause (c)). The moneys claimed, therefore, in this suit may appropriately be...
Tag this Judgment!Court : Mumbai
Reported in : AIR1915Bom27; (1915)17BOMLR65
Macleod, J.1. The applicant contends that he was induced to buy shares of the above Company, owing to the half yearly reports and balance-sheets published by the Company, and applies that the list of contributories should be rectified by striking off his name on the ground that he has now discovered that these reports and balance-sheets were false and contained information regarding the dealings of the Company, contrary to the real facts of the case. As a matter of fact, the Company, instead of having made a profit since 1909, had incurred heavy losses and had speculated heavily in silver, although the balance-sheets showed large profits and the Directors reported, at the general meeting, that there had been no such speculation. It is not disputed that if a share-holder, who has applied for shares on the faith of a prospectus which eventually is found to contain false representation, wishes to have his name struck off the register, he must take steps before the commencement of winding ...
Tag this Judgment!Court : Mumbai
Reported in : AIR1914Bom179(2); (1914)16BOMLR774
Basil Scott, Kt., C.J.1. This was a suit for redemption by the plaintiff to recover a house. The question for decision by the lower Courts was whether the transaction with reference to which the plaint was instituted was a sale or a mortgage. On the 30th March 1900 three documents were executed. One of them purported to be a sale-deed. It recited that the house had been given in mortgage with possession to one Jagjiwandas Kaliandas in 1897, but the mortgagor had got possession of it as a tenant and continued to hold it as a tenant up to the 30th March 1900, and that a decree had been obtained by the mortgagee in 1900, and Rs. 175 was due. This amount had been paid by Ghelabhai Atmaram, the ostensible vendee, and the balance of Rs. 224 had been paid in cash making altogether Rs. 399, and consequently the house having been redeemed from the mortgagee was taken from the possession of the mortgagor and given into the possession of the ostensible vendee who was made the absolute owner.2. An...
Tag this Judgment!Court : Mumbai
Reported in : AIR1914Bom136; (1914)16BOMLR743
Hayward, J.1. The plaintiff sued as an endorsee of a. Hundi drawn by the 1st defendant in favour of one Magan. The 1st defendant pleaded that no consideration for the Hundi had been received from Magan, and an issue was raised whether there had been consideration as between defendant 1, and Magan. The learned Judge of the Small Causes Court, Poona, did not decide whether there had been consideration as between the plaintiff and Magan but dismissed the suit on the issue mentioned holding that there had been no consideration as between the 1st defendant and Magan.2. The plaintiff has now Bought to have the decision set aside in extraordinary jurisdiction on the ground that Ins suit as endorsee from Magan was not necessarily barred by the fact that there had been no consideration as between defendant 1 the drawer, and Magan, the payee. It appears to us that the plaintiff's position has been misapprehended and that his contention must be allowed. He must as endorsee be presumed until the c...
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