Mumbai Court November 1922 Judgments
Chalikani Venkatarayanim Garu Vs. Venkata Subadrayamma
Court: Mumbai
Decided on: Nov-30-1922
Reported in: (1923)25BOMLR541
Buckmaster, J.1.Three questions are raised upon this appeal. They all arise out of the rights created under a mortgage deed which was executed on March 2, 1891, in favour of the first plaintiff in the suit by the first defendant. The appellants are assignees of the equity of redemption of that mortgage, and claim that in the accounts taken to determine the true amount due under the deed three mistakes have been made adverse to their interests. The mortgage deed itself is in a peculiar form. It is a mortgage with possession to secure the repayment of Rs. 1,80,000 with interest at the rate of rupee one per cent, per month; the principal of the debt is to be repaid by sums of Us. 10,000 payable year after year, beginning on February 1, 1892, down to February 1, 1898, and on February 1, 1899, the entire balance of the debt and the interest is to be paid. These instalments are protected not merely by the security of the mortgaged property but also by an express agreement in these terms: 'We...
Tag this Judgment!Thattan Kunhi Kutti and anr. Vs. Thattan Raman and Sixteen ors.
Court: Mumbai
Decided on: Nov-30-1922
Reported in: (1923)ILR46Bom597
Wallace, J.1. The suit is one for partition by the plaintiff who is a member of the Thattan caste in North Malabar, which caste follows Makkattayam law. Various issues were framed, but the original Court dealt with two only, issue II, whether the properties are impartible, and issue XIV, whether the plaintiff is not the legitimate son of the deceased Valianambi, the owner of the property sought to be partitioned. The original Court held that the property is impartible, which finding was enough to dispose of the suit, and that the plaintiff was what is known as a Veettukutti, or the son of a sambandham wife who is not brought to her husband's house, and that such Veettukutti is not entitled to share in his father's property. The appellate Court agreed with the original Court on the last two points, did not consider the first. It is urged before us by the plaintiff, who is the appellant before us, that the lower Courts have erred in law in coming to these conclusions.2. To take the first...
Tag this Judgment!Jagannatha Sastri Vs. Sarathambal Ammal and Two ors.
Court: Mumbai
Decided on: Nov-30-1922
Reported in: (1923)ILR46Bom574
Wallace, J.1. In this case the lower Court has refused to issue a commission for the examination of two of the petitioner's witnesses, who live more than 200 miles from the Courthouse, and cannot therefore be compelled to attend by-ordinary process.2. The petitioner contends that, as a matter of law, the Court was bound to issue a commission. The respondent contends that it was entirely a matter for the discretion of the Court. The point is one on which reported authorities speak with an uncertain voice.3. The practice in English Courts undoubtedly is that it is a matter of judicial discretion for the trying Court to issue a commission and the Calcutta High Court has usually interpreted the pertinent sections of the old and the present Civil Procedure Codes in that sense; vide Amrith Nath Jha v. Dhunput Singh Bahadoor (1873) 20 W.R. 253 Adamji Khadi Bhai v. Issuf Ahmed Mulla (1912) 16 I. C. 750. and A. E. Saleji v. Ahmed Musaji Saleji (1913) 19 I. C. 643. though in Amirth Nath Jha v. D...
Tag this Judgment!E.D. Sassoon and Co. Ltd. Vs. K.A. Patch
Court: Mumbai
Decided on: Nov-29-1922
Reported in: (1943)45BOMLR46
Pratt J.1. Plaintiff No. 1, a private limited company, purchased a large number of shares of the David Mills Co, Ltd., and after receiving their vendors' share certificates and transfer forms applied 'for transfer of the shares in the David Mills Company register to the names of their nominees, plaintiffs Nos. 2 and 3. The directors of the company, however, refused to accept the transfers, and the plaintiffs now desire to alter the articles of association so as to limit the discretion of the directors with the object of eventually becoming registered shareholders.2. Among the shares so purchased by the first plaintiff company are seventeen shares of which the defendant is the registered holder, and the plaintiffs ask in this suit for a mandatory injunction requiring the defendant to vote according to the plaintiffs' wishes and to sign a proxy form in favour of the plaintiffs.3. The plaintiffs' contention is that the defendant is in the position of a trustee of the shares for them. This...
Tag this Judgment!Shankar Ganpat Lele and anr. Vs. Damodar Bhukandas
Court: Mumbai
Decided on: Nov-29-1922
Reported in: 75Ind.Cas.569
1. The petitioners applied for Letters of Administration de bonis non with a copy of the Will annexed of one Bandoba Vithoba who died on the 11th March 1896. The petition was opposed by Damodhar Bhukandas, the son of one of the persons appointed Panchas by the Will. The Will directed six persons to be Panchas of whom one was to supervise the work of administration. The Panchas were given power to appoint other Panchas. That power coula only be exercisea by the whole body of Panchas and when Bhukandas asserted his right to appoint his son to succeed him by his Will he was attempting to do what was not authorised by the terms of the Will of Bandoba. Evidently the testator had neve intended that Panchas should have the power to appoint other Panchas by Will because it was intended by the testator that they should exercise that power as a body. That would exclude any power to appoint by Will. It follows then that Damodhar Bhukandas has no inherent right to be considered as executor of the ...
Tag this Judgment!Emperor Vs. Nasarvanji Bomanji
Court: Mumbai
Decided on: Nov-28-1922
Reported in: AIR1923Bom248; (1923)25BOMLR95
Norman Macleod, Kt., C.J.1. This is a reference under Section 438 of the Code of Criminal Procedure by the Sessions Judge of Poona in the matter of the conviction of one Naservanji Bomanji by the Cantonment Magistrate of Poona under Section 22 of Bombay Act VII of 1920.2. The offence charged was that the accused had let his tonga for hire without a license. It would appear from the judgment that the only evidence against the accused was that a Lieut. Flitcroft was found driving in a tonga belonging to the accused and that he stated that he had hired it several times before. The accused said that he had three conveyances which he hired out to such persons as he wished, but contended that they did not become by reason of such user public conveyances. The learned Magistrate had no doubt that the tonga was a public conveyance and required a license, but he ignored entirely the definition of a public conveyance in Section 2 of the Act and based his opinion on grounds which can only be consi...
Tag this Judgment!Kishan NaraIn Vs. Pala Mal
Court: Mumbai
Decided on: Nov-28-1922
Reported in: (1923)25BOMLR220
Buckmaster, J.1. The difficulty in this case is due to the provisions of Rule 2 of Order II of the Code of Civil Procedure, 1908. This rule provides that every suit shall include the whole of the claim which the plaintiff is entitled to matte in respect of the cause of action. But the plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. The illustration given shows that a personal claim for the mortgage money under a mortgage and the enforcement of the security for the debt are to be regarded as one and the same cause of action. This provision is in marked distinction to the law of this country, where a mortgagee is at liberty to appoint a Receiver under his deed to sue for the debt and to take proceedings for sale or foreclosure independently and at the same time. It is important, therefore, in considering the effect of the Code to bear in mind that its obvious intention is to establish a rule of law different from that acc...
Tag this Judgment!Hansraj Godhaji Marwadi Vs. Bapu Krishnaswami Pile
Court: Mumbai
Decided on: Nov-27-1922
Reported in: AIR1923Bom207; (1923)25BOMLR153
Norman Macleod, Kt., C.J.1. On February 29, 1916, an award decree was made whereby the defendants were bound to pay to the plaintiffs Rs. 6,562-8-0 with interest thereon by instalments of Rs. 50 every month. It was provided that in case of default in payment of any six instalments, the whole amount should become due by sale of the mortgaged property specified in the decree. On September 27, 1919, the decree-holder put in a Darkhast, and it was objected that his Darkhast was time-barred because by August 1916 there had been a failure to pay six consecutive instalments. Therefore at that date the whole amount of the decree became due. Prima facie the Darkhast being given three years after the date on which the whole amount was recoverable would be time-barred.2. It has been suggested that by reason of a payment made on April 9, 1917, limitation is saved by virtue of Section 20 of the Indian Limitation Act. But it is clear that Section 20 could have no application, as the payment in quest...
Tag this Judgment!Moses Menahim Vs. AhraIn Solomon
Court: Mumbai
Decided on: Nov-27-1922
Reported in: AIR1923Bom233; (1923)25BOMLR155; 84Ind.Cas.684
Norman Macleod, Kt., C.J.1. This is a reference under the Aden Jurisdiction Act in the matter of three suits filed by three different Plaintiffs against the same defendant Ahrain Solomon to set aside an order passed by the Court of the Registrar dated July 27, 1920. The facts are peculiar. A decree having been passed against Ahrain Solomon in Suit No. 97 of 1920 he was arrested in execution. He submitted to the Court that he was unable to pay his debts and asked for relief. On that application the Court operation in Aden but the Court being enjoined to act generally on the spirit of Indian laws, it is ordered that the Registrar be appointed Receiver in this case and take all action essential to the settlement of applicant's affairs.2. I Presume the Court thought that it was making an order which was something in the nature of an adjudication order with the appointment of a receiver with powers which a receiver would have under the Provincial Insolvency Act. Then, on July 27, 1920, the ...
Tag this Judgment!Mahableshwar Narayanbhat Devte Vs. Subramanya Shivram Joshi
Court: Mumbai
Decided on: Nov-24-1922
Reported in: AIR1923Bom297; (1923)25BOMLR274
Norman Macleod, Kt., C.J.1. A joint Hindu family consisted of one Shiv-ram Joshi, his three sons, Hahabaleshwar, Ganpati and Venkatraman by his first wife, and one son Subramanya by his second wife. In 1904 there was separation of the family and partition of the family property, the father and his four sons each taking one-fifth of the family property. Mahabaleshwar, the present first defendant, after partition, was in 1907 given in adoption by his father to one Narayan Bhatta Devte. He thereby became a member of his new family. Shivram Joshi died leaving a will dated September 28, 1907, wherein he stated that he was not quite confident as to whether he could own the entire property which had been acquired by partition by the first defendant or only one-fourth share. If he owned the whole he left it in equal shares to Subramanya and Ganpati. If he only had a share he left it all to Subramanya. Subramanya then brought this suit seeking to recover from the first defendant the share which...
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