Court : Mumbai
Reported in : (1922)24BOMLR236; 66Ind.Cas.815
Norman Macleod, C.J.1. The plaintiff sold the suit property to the defendant on the 16th March 1906, continuing to remain in possession as tenant. On the 13th August 1906, the defendant executed in his favour a satekhat to sell the property to him at any time within twelve years for Rs. 395, Rs. 5 being paid as earnest money. The plaintiff filed a suit in 1911 claiming to redeem the property on the ground that the document of the 16th March was a mortgage, seeking the protection afforded by Section 10A of the Dekkhan Agriculturists' Relief Act. That suit was dismissed. Before twelve years had expired the plaintiff sued again to recover the property on payment of Rs. 395. It was contended that that question was res judicata as the plaintiff might in his original suit of 1911 have sued in the alternative for specific performance of the satekhat. Whether he could have sued in the alternative for specific performance in his redemption suit need not be determined. It certainly cannot be sai...
Tag this Judgment!Court : Mumbai
Reported in : (1922)24BOMLR239; 66Ind.Cas.865
Norman Macleod, C.J.1. The plaintiff sued to obtain a declaration and accounts with respect to the plaint house in the city of Ahmedabad. It belonged to her step-brother Trikamlal. He mortgaged the property to the defendant on the 11th February 1912 and sold it to the defendant on the 12th October 1916, the consideration being Rs. 1081. The plaintiff alleged that there was an arrangement that the property should be reconveyed to Trikamlal or his heirs on their repaying the total advances received, free from the burden of the alleged sale. The plaintiff, therefore, wished to prove an oral agreement to reconvey on taking an account. It is admitted that the evidence which was sought to be adduced to prove this does not come within any of the provisos of Section 92 of the Indian Evidence Act. But a most extraordinary argument has been urged before us based on the evidence which cannot be called. It is first assumed that there was this arrangement, and then we are asked to believe that ther...
Tag this Judgment!Court : Mumbai
Reported in : (1922)24BOMLR229; 66Ind.Cas.341
Shah, J.1. In this appeal we are concerned with the property of Jairam. He was the son of Ramji by his first wife Sadi. Ramji re-married and had a son Totaram by his second wife who also was named Sadi. Totaram is the plaintiff and claims the property of Jairam as his heir. The first wife of Ramji was divorced by him: and she re-married one Parsharam: she had two sons by her second husband. The defendant No. 1 is one of these sons and the other defendants are the sons of the other son. They claim the property of Jairam as representing the brothers of Jairam born of the same mother. It seems to me clear on these facts that according to Hindu law the sons of Parashram belong to a different gotra altogether, and can have no claim as brothers to the property of Jairam, in preference to the claim of the plaintiff, who is admittedly the half brother of Jairam. The lower Courts have rightly disallowed their contention. Before us a feeble attempt has been made to suggest that the word (sic) (s...
Tag this Judgment!Court : Mumbai
Reported in : (1922)24BOMLR232; 66Ind.Cas.320
Norman Macleod, C.J.1. The plaintiff filed this suit for possession and mesne profits. The trial Court dismissed the suit and an appeal from that decree was dismissed with costs. The question is whether the defendants could succeed against the plaintiff who had obtained a decree for possession on the 28th February 1914. It was alleged that in execution of that decree the plaintiff was put in possession on the 5th February 1915. The learned Judge says 'the main question, as was frankly stated by the learned pleader, is whether the possession delivered on the 5th February 1915 was symbolical possession or real possession,' and the learned Judge came to the conclusion that the possession was only symbolical.2. In Mahadev Sakharam v. Janu Namji I.L.R (1912) Bom. 373: 14 Bom. L.R. 115., it was decided by a Full Bench that merely formal possession of immoveable property by a purchaser at a Court sale cannot prevent limitation running in favour of the judgment-debtor where the latter remains ...
Tag this Judgment!Court : Mumbai
Reported in : (1922)24BOMLR235
Norman Macleod, C.J.1. The question in this appeal relates to a dispute between the plaintiff, who is the widow and heir of one Narayan, and the first defendant who is the mother of Narayan. The Judge has declared that the plaintiff is the owner of the house described in the plaint, but subject to defendant No 1's right to reside in a portion of it suitable and sufficient for her residence. The plaintiff appealed on the ground that the order directing residence to be provided in the suit house for her mother-in-law was most inconvenient and prejudicial to the interest of the plaintiff. But the fact remains that this was a family house which was occupied by Narayan, and naturally his widow would be very reluctant to leave the house in which ordinarily she would have a right to reside according to Hindu law although another house belonging to Narayan might be available for her residence. It seems that the relations between the plaintiff and her mother-in-law have become somewhat unfriend...
Tag this Judgment!Court : Mumbai
Reported in : (1922)24BOMLR226; 66Ind.Cas.315
Shah, J.1. This is an appeal under the Letters Patent from the judgment of the learned Chief Justice allowing the plaintiffs' claim for a declaration that the defendants were their annual tenants. It is not necessary to set forth the previous history of this case. It is enough to point out that in November 1919 the case was remanded for the purpose of determining the nature of the defendants' tenancy, as to which the plaintiffs had sought a declaration. Both the lower Courts found that the tenancy commenced after the gift by the original owners in favour of the ancestors of the plaintiffs' predecessor-in-title. They applied the provisions of Section 83 of the Bombay Land Revenue Code and presumed that the tenancy was permanent, mainly relying on the observations in Ramchandra Narayan Mantri v. Anant I.L.R (1893) Bom. 433.2. When the second appeal came on for hearing, it was held that Section 83 of the Bombay Land Revenue Code did not apply as the commencement of the tenancy was traced,...
Tag this Judgment!Court : Mumbai
Reported in : (1922)24BOMLR346
Buckmaster, J.1. A person who deals with a Hindu widow having a limited estate must be aware that he may be called upon to establish the facts which justify the transactions under which he claims. The appellants in this case, who are the successors-in-title of one Rajkishore Mandal, find themselves in that position.2. Rajkishore Mandal entered into two transactions, in the one case with two Hindu widows, and, in the other case, with one, These transactions are now impeached, and the burden of proving them valid lies on the appellants. The first was a lease of the 17th September, 1869, which was executed by two Hindu widows, Prasana Kumari Dasi and Bamakali Dasi. Their estate in the property arose in the following way. Prasana was the widow of Madhusudan and Bamakali was the widow of Harinarayan his brother. Harinarayan, when he died, was entitled to an undivided third share in properties held jointly, and Madhusudan, who died in 1867, was entitled to the remaining two-thirds. The case ...
Tag this Judgment!Court : Mumbai
Reported in : (1922)24BOMLR178
Norman Macleod, C.J.1. I think the question referred to the Full Bench should be answered in the affirmative. There can be no doubt that a Municipality has appellate and revisional powers over orders passed by the Managing Committee, or by a Committee appointed under Section 28 or 29, other than orders under Sub-section 3 of Section 65, which powers are to be exercised in accordance with the rules framed under Section 46. Whether those powers have been properly exercised is a question which must be decided in each case on its merits.Shah, J.2. I would answer the question referred to the Full Bench in the affirmative, subject to the qualification that the cancellation or revocation is otherwise consistent with the provisions of Section 96 of the Bombay District Municipal Act of 1901.3. In the present case the power to deal with notice under Section 96 is delegated to the Public Works Committee and the delegation is subject to revision and appeal as provided by Section 36(2) and the rule...
Tag this Judgment!Court : Mumbai
Reported in : (1922)24BOMLR341
Buckmaster, J.1. In this appeal their Lordships have not had the advantage of hearing counsel for the respondents, but owing to the full and able argument of Mr. Hyam they have been placed in complete possession of the facts.2. The appeal arises out of a mortgage suit. The appellants and the second, third and fourth respondents represent together the mortgagee. The first respondent was himself one of the mortgagors and represents the other. The mortgage deed in question was executed on the 14th September, 1910, and was a simple mortgage but it took an unusual form. It created security for the repayment to the mortgagees of Rs. 14,000 principal and interest at the rate of eight annas per cent, per month, it then provided by Clause 2 that the interest should be paid on the bond as each month went by, and that if the interest was not paid for six months, the creditor should be competent to realise only the unpaid amount of interest due to him, or the amount of principal and interest both ...
Tag this Judgment!Court : Mumbai
Reported in : (1922)24BOMLR105
Norman Macleod, Kt., C.J.1. The accused was charged with an offence under Section 96(5) of the Bombay District Municipal Act III of 1901. The complainant, Mr. Shinde, the Secretary of the Ghatkoper Kirol Municipality, alleged that the accused had commenced erecting a number of temporary huts on Survey No. 31 of Ghatkoper village situate within the limits of the Ghat koper Kirol Municipality without having obtained permission from the Municipality under Clause (1) of Section 96 and thus had committed an offence punishable under Section 96(5) of the Act.2. The Magistrate came to the conclusion that no offence had been committed under Section 96(5), but on the facts he dealt with the case as if the Municipality had given notice to the accused under Section 97, and that the accused not having obeyed the requisitions of the Municipality had committed an offence under Section 155 of the Act, and fined him Rs. 50, or in default simple imprisonment for one month.3. On the 18th January 1921, th...
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