Mumbai Court August 1916 Judgments
Vardaji Kasturji Marwadi Vs. Chandrappa Piraji Kshirsagar
Court: Mumbai
Decided on: Aug-31-1916
Reported in: AIR1916Bom155; (1916)18BOMLR821; 36Ind.Cas.805
Stanley Batchelor, Kt., Acting C.J.1. The only question which arises for decision in this appeal is whether the power of attorney filed by the plaintiffs is a general power of attorney within the meaning of Rule III of the Rules made by this High Court under Section 122 of the Civil. Procedure Code, and published in the Bombay Government Gazette of September, the 15th, 1910, at p. 1496. The Rule in question is made in substitution of the provision occurring in Clause (a) of the second Rule of Q. Ill of the Civil Procedure Code. That clause, as enacted by the Legislature, allowed the appearance as a recognised agent of a person holding a power of attorney authorising him to make and do such appearances, applications or acts in any Court as are required or authorised to be made or done by a party. The direction by which this clause has been replaced owing to the Rule made by the High Court is this : The recognised agents or parties by whom such appearances, applications and acts may be m...
Tag this Judgment!Gangadas Mulji Vs. Haji Ali Mahomed Jalal Saji
Court: Mumbai
Decided on: Aug-31-1916
Reported in: AIR1917Bom196; (1916)18BOMLR826; 36Ind.Cas.433
Kajiji, J.1. In this case there is no dispute as to facts as they are all practically admitted. The plaintiff was the owner of a large piece of land situate at De Lisle Road. By an indenture of lease, dated 15th January 1903, the plaintiff had leased the said piece of land to one Ahmed Moosa and Mahomed Ibrahim, their heirs, executors, administrators and assigns for ninety-nine years upon certain terms and conditions. In the year 1914, the Trustees for Improvement of the City of Bombay acquired a portion of the said piece of land under the powers conferred on them by the City of Bombay Improvement Trust Act (IV of 1898). At the time of the acquisition the lessee's interest in the land had become vested in the first defendant, Haji Ali Mahomed Jalal Saji, who had mortgaged his interests to the second defendant, Kuppa, Dolla & Co., who in turn had created a sub-mortgage of their interests in favour of one Rustomji P. Mehta. The question of compensation was amicably settled between the Im...
Tag this Judgment!Rose D'souza Vs. Joseph Joaquim Serpes
Court: Mumbai
Decided on: Aug-30-1916
Reported in: AIR1916Bom101; (1916)18BOMLR943
Stanley Batchelor, Kt., Acting C.J.1. The state of facts in which this appeal is brought is described in the judgment of the lower Court and need not be recapitulated. Only three points are taken on behalf of the appellants, who are the original plaintiffs, and of these three points only one is, I think, such as to occasion any difficulty.2. The first objection raised for the appellants was that probate of the will of Joseph had not been established. But that objection is, in my opinion, disposed of by Exh. 25, an extract from a vernacular register for the 3 ear 1877, That extract shows that application for probate was made to the Court, and that the Court granted what is translated from the vernacular as a ' certificate'. Seeing that the application was for probate, and that the English word ' certificate ' is habitually used in the vernacular languages as equivalent to ' probate', I have no doubt that the probate of Joseph's will in this case is sufficiently proved.3. As to the secon...
Tag this Judgment!Bhagvant Gopal Galapure Vs. Appaji Govind Galapure
Court: Mumbai
Decided on: Aug-29-1916
Reported in: AIR1916Bom282; (1916)18BOMLR803; 36Ind.Cas.598
Beaman, J.1. The plaintiff sued the defendant and a consent decree was taken in March 1911. One of the terms of the consent decree was the exchange of the plaintiff's house for one of the defendants' houses after the plaintiff had constructed on his premises a well and a sink. These additions were to be made and the exchange effected by the end of June 1912. We are informed in argument that the work was commenced some time before the end of June, but we have no materials upon which to conclude when it was finished. It is, however, common ground that these additions were not made within the stipulated time. Two years later, in 1914, the plaintiff applied for execution. The defendant resisted, so far as this term of the contract was concerned, on the ground that time being of its essence, so much of the consent decree was voidable at his option. The only question to be considered was whether time was or was not of the essence of this term in the consent decree. Both the lower Courts came...
Tag this Judgment!Eustace Charles Palmer Vs. Carmeline Mary Palmer
Court: Mumbai
Decided on: Aug-29-1916
Reported in: AIR1916Bom157; (1916)18BOMLR818; 36Ind.Cas.800
Stanley Batchelor, Kt., Acting C.J.1. This is an appeal from a decision of the learned District Judge of Khandesh under the Indian Divorce Act (IV of 186 9). The petitioner, who was the husband, prayed for a decree for a dissolution of the marriage on the ground of his wife's adultery with the second opponent, Augustus Gidley. It was not denied, and the learned Judge has found it proved, that the adultery alleged did in fact take place. But exercising the discretion confided to him under Section 14 of the Act, the learned Judge, in view of all the circumstances, has come to the conclusion that he ought to refuse to grant a decree nisi, The question before us now is whether we should interfere with that exercise of the learned Judge's discretion. In the first place, there is this to be said that the discretion is primarily the District Judge's, and not ours, nor are we, as I understand it, entitled to interfere merely because on a nice balance of the conflicting arguments, it might seem...
Tag this Judgment!Eustace Charles Palmer Vs. Carmeline Mary Palmer and anr.
Court: Mumbai
Decided on: Aug-29-1916
Reported in: (1917)ILR41Bom36
Stakley Batchelor, Kt., Ag. C.J.1. This is an appeal from a decision of the learned District Judge of Khandesh under the Indian Divorce Act (IV of 1869). The petitioner, who was the husband, prayed for a decree for a dissolution of the marriage on the ground of his wife's adultery with the second opponent, Augustus Gidley. It was not denied, and the learned Judge has found it proved, that the adultery alleged did in fact take place. But exercising the discretion confided to him under Section 14 of the Act, the learned Judge, in view of all the circumstances, has come to the conclusion that he ought to refuse to grant a decree nisi.' The question before us now is whether we should interfere with that exercise of the learned Judge's discretion. In the first, place, there is this to be said that the discretion is primarily the District Judge's and not ours, nor are we, as I understand it, entitled to interfere merely because on a nice balance of the conflicting arguments,.it might seem to...
Tag this Judgment!Gulabchand Balaram Marwadi Vs. Narayan Rama
Court: Mumbai
Decided on: Aug-28-1916
Reported in: AIR1916Bom158(2); (1916)18BOMLR806; 36Ind.Cas.613
Beaman, J.1. In our opinion the suit is clearly time-barred. Adopting the view of the lower Court, and that is admittedly the view most favourable to the plaintiff, that the suit is governed by Article 97, we should still be as sure that it was time-barred.2. The admitted facts are that this agreement, whatever its true nature may have been, was entered into between the plaintiff and the defendant No. 1 in September 1908. Adopting, again, the plaintiff's case, the agreement was of this nature. The plaintiff had paid the defendant the money which he now seeks to recover in consideration of the defendant procuring for the plaintiff a reconveyance of certain property which had been sold under a Court decree in 1904. The nominal purchaser at that Court-sale was the defendant No. 2, and the plaintiff's case is that the defendant No. 1 was the real purchaser, the defendant No. 2 being only his creature. That being the nature of the agreement, it is common ground that the defendant No. 1 did ...
Tag this Judgment!Ganesh Krishna Kulkarni Vs. Damoo Nathu Shimpi
Court: Mumbai
Decided on: Aug-25-1916
Reported in: AIR1916Bom179; (1916)18BOMLR782; 36Ind.Cas.627
Stanley Batchelor, Kt., Ag. C.J.1. The facts upon which this second appeal has to be decided are these. The plaintiffs sued to recover a sum of money on a mortgage bond passed on the 22nd December 1882 and their suit has been dismissed as being barred by time. It appears that in a Darkhast No. 458 of 1883, the mortgaged property in dispute had been attached at the instance of the defendants' father under a decree obtained by him in a suit of 1882. By Miscellaneous Application (No. 39 of 1883), the plaintiffs' father applied to the Court that the property should be sold subject to his mortgage lien. But, in June 1883, the Court rejected this application, and ordered that the property should be sold free from the alleged mortgage in favour of the plaintiffs' father. In consequence of this order the defendants met the plaintiffs' present suit with the objection that it was out of time, inasmuch as it. was filed more than a year after the date of the Court's order rejecting the plaintiffs'...
Tag this Judgment!Krishna Kering and Co. Vs. J.R. Miller
Court: Mumbai
Decided on: Aug-24-1916
Reported in: AIR1916Bom178; (1916)18BOMLR686; 35Ind.Cas.809
Stanley Batchelor, Kt., Ag. C.J.1. This is an application to extend the time for the prosecution of the appellant in respect of an offence of giving false evidence said to have been committed during the hearing of a suit before Mr. Justice Beaman. Sanction was granted under Section 195 of the Criminal Procedure Code on the 6th December 1915, and by virtue of Sub-section (6) of that section, the sanction could not remain in force for more than six months from the date on which it was given. Consequently the period of the currency of the sanction has expired several months ago. It is, I think, clear that if we have the power now to extend the time, we ought to extend it, seeing that the responsibility for the delay which has occurred does not rest with the present respondent, but with the appellant himself. But it is contended that, under Section 195, it is not competent to this Court to make an order extending the period, when in fact the six months' time has elapsed. When that time has...
Tag this Judgment!Chandabhai Janubhai Vs. Ganpati Patilboa
Court: Mumbai
Decided on: Aug-24-1916
Reported in: AIR1916Bom199; (1916)18BOMLR763; 36Ind.Cas.517
Stanley Batchelor, Kt., Acting C.J.1. This appeal which is brought by the original defendants must, in our opinion, succeed, and as it succeeds upon a preliminary point, we make no pronouncement as to the merits of any part of the case. It is further to be observed that this preliminary point, upon which we are about to reverse the decree of the learned District Judge, goes to the root of this litigation, and to the jurisdiction of the Courts, so that we have felt bound to consider it. It will, however, be recognised that in allowing it to prevail, we are deciding the suit and the appeal upon a point which was not argued before the learned District Judge, and upon which the ruling authority was not cited to him.2. The suit was filed by the plaintiffs under the Dekkhan Agriculturists' Relief Act as a suit for the redemption of mortgaged property within Section 3, Clause (z) of the Act. The whole question is whether the suit, properly considered, can fall within this description. In our ...
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