Mumbai Court December 1922 Judgments
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Fulkuverbai Vs. Kesrisingh Rajmal
Court: Mumbai
Decided on: Dec-20-1922
Reported in: (1923)25BOMLR621
Carson, J.1. This suit was brought by the plaintiff, the widow of one Chandmulji, for the determination and declaration of her rights in Chandmulji's estate. Chandmulji was a rich Jain who lived at Rutlam and carried en business there, at Bombay and other places. The property to which he was entitled at his death he held as the last survivor of a joint family. His will, dated June 16, 1907, is in the following terms:I alone am the owner of the immoveable [and] movable properties acquired by revered, the most illustrious Magniramji and Bhutsingji Punamchandji Dipchandji Sobhagmulji Chandmul. If a male issue be born to me, then he shall remain [? shall be] the owner. Should perchance a son be not born to me, then [in that case] my heir is Chiranjiv Keshrising. Should a heir [i.e.] a son be born to Chiranjiv Keshrisingji, then he shall be the heir in the future. Should perchance no son be born to Chiranjiv Keshrising and should it be necessary to bring [a son] from [some] other place, the...
Haji Abdur Rahim Vs. Narayan Das Aurora
Court: Mumbai
Decided on: Dec-20-1922
Reported in: (1923)25BOMLR670
Sumner, J.1. This was a suit brought by the mutwalli of a mosque to recover possession of property, alleged to have been settled as a valid wakf, from the defendants, whose title arose under incumbrances created by his predecessors in that office.2. The principal issue tried in India was whether or not the claim was statute-barred, and, relying on Article 134 of the first Schedule of Act No. IX of 1908, the High Court gave judgment in favour of the defendants. This was before the decision of their Lordships' Board in Vidya Varuthi Thirtha v. Balusami Ayyar which held that Article 134 does not apply to wakf, and accordingly their conclusion is admitted to be no longer sustainable. There has further been much discussion on the present appeal whether the case is governed by Article 142 or by Article 144, since Article 134 is inapplicable ; but again of is common ground that, if the plaintiff's evidence established that his predecessor in office remained in possession of the property in qu...
Rani Jagadamba Kumari Vs. Thakur Wazir NaraIn Singh
Court: Mumbai
Decided on: Dec-20-1922
Reported in: (1923)25BOMLR676
Buckmaster, J.1. The appellant in this case is the widow of Raja Saroda Narain. The respondent is the nearest male agnate of the deceased, being the son of one Nilkantha Narain, the original plaintiff in the suit, who was the son of Bharath Singh. The proceedings were instituted for the purpose of establishing the title of the plaintiff to an estate known as the Serampore Raj or Gadi and certain moveable and immoveable property, cash and securities which had been purchased out of the income of that estate. The questions with regard to the estate and the monies and property representing the investments from this income are distinct, and need to be separately considered. They have both been decided adversely to the appellant, with the exception of the claim to certain Government securities which will be more specially referred to hereafter. Serampore Raj or Gadi is impartible, and the family is governed by the Mitakshara law. If there had been no division of the family the property would...
Digambar Govind Deshpande Vs. Lahyadeo Bhau Deshpande
Court: Mumbai
Decided on: Dec-19-1922
Reported in: AIR1923Bom254; (1923)25BOMLR245
Norman Macleod, Kt., C.J.1. The plaintiff sued to obtain a declaration that he was the owner of the plaint lands, and that the tenants in actual cultivation of the lands were his own tenants, and for an injunction restraining the defendants from recovering rent of the lands from the tenants or otherwise interfering with them in any way. The suit was brought in the Court of the Second Class Subordinate Judge at Wai, although the lands were situate within the jurisdiction of the Court at Rahimatpur. No objection, however, was taken to the jurisdiction of the Wai Court, presumably because the suit asked for personal relief respecting immoveable property held by or on behalf of the defendant within the proviso to a. 16 of the Civil Procedure Code, and it may be admitted that the suit is not one for possession of land, in which case the Wai Court could have had no jurisdiction. So we need not consider the question whether the point of jurisdiction had been raised too late under Section 21 o...
Ganesh Mahadev Sahasrabudhe Vs. Yeshwant Mahadev Phadke
Court: Mumbai
Decided on: Dec-19-1922
Reported in: AIR1923Bom253; (1923)25BOMLR247; 95Ind.Cas.410
Norman Macleod, Kt., C.J.1. The Rule must be made absolute and the case sent back for trial on its merits, The plaintiff alleged that he had made a payment of Rs. 300 to his pleader who had paid the amount to the judgment-creditor. As it was not certified under Order XXI, Rule 2, the Court executing the decree could take no cognizance of that payment, but if the creditor by taking out a Darkhast recovered the amount over again that would not bar the judgment-debtor from seeking to recover the amount which r. he had paid to his creditor without its being certified. Costs will abide the result....
Kashinath Hari Bondale Vs. Vishwanath Bhiko Padhye Bondale and ors.
Court: Mumbai
Decided on: Dec-19-1922
Reported in: AIR1923Bom409; 76Ind.Cas.764
1. The Trial Court passed an order in favour of the plaintiffs who asked to have it declared that the temple of Shri Vithoba situate at Devgad being a public temple they had a right to worship the said deity. They also asked for a permanent injunction restraining the defendant from obstructing the plaintiff in the enjoyment of their said rights. They also prayed far the removal of a certain lock put up by the defendant on the door of the inner room of the temple. After granting the perpetual injunction asked for, and directing the defendant not to obstruct the plaintiffs in doing the acts referred to in paragraph 4, Clause 1 of the plaint the order then proceeded as follows;--'As the lock has been clearly removed by the order of the Court I order that the defendant shall not lock the door again.' That order was confirmed in appeal. The defendant in second appeal asked us to delete from the order those words with regard to the locking of the door, on the ground that they are unnecessary...
Khimchand Narotamdas Bhavsar Vs. Sobhagchand Bhogilal
Court: Mumbai
Decided on: Dec-18-1922
Reported in: AIR1923Bom206; (1923)25BOMLR242
Norman Macleod, Kt., C.J.1. This is an application in revision to set aside the order of the First Class Subordinate Judge of November 17, 1920, by which he allowed the plaintiffs suit No. 572 of 1919 to be withdrawn, but refused to allow the defendants their costs. The ordinary rule is that costs follow the event, and that if the plaintiff finds himself unable to proceed with his suit, and asks for leave to withdraw it, then the opposite party is entitled to the costs which he has been put to in defending the suit. The granting of leave to withdraw from a suit is a concession because the defendant is ordinarily entitled to ask the Court to decide the suit on the merits, and if he wins, he would be entitled to his costs. The Judge declined to follow the ordinary rule, as he thought he ought to follow the decision in Ramasami Naiken v. Venkatasami Naiken I.L.R. (1919) Mad. 61, where it was held that it was a good cause for depriving a successful respondent of the costs of an appeal if t...
The Government Pleader Vs. G.K. Tatke
Court: Mumbai
Decided on: Dec-18-1922
Reported in: AIR1923Bom234; (1923)25BOMLR264
Norman Macleod, Kt., C.J.1. One Janai filed a complaint in the Court of the Second Class Magistrate of the Patan Taluka against two persons accusing them of having committed the offence of wrongful confinement. On August 31, 1921, the Magistrate delivered judgment acquitting the accused. The papers were sent up to the District Judge by the Magistrate in consequence of the view which the Magistrate had formed of the evidence given before him on behalf of the accused. The District Judge called for a report from the Subordinate Judge and passed orders on March 6, 1922. He said in conclusion:I do not agree with the Magistrate's view of the evidence and consider that his strictures are unwarranted. His remark that the Sub-Judge's order is a fraud, presumably moans that it was obtained by a fraud, but I have already said that there was absolutely no reason for any one connected with the Court to approach the complainant except for the purpose of serving the process upon her. It is therefore ...
Gulabrao Manyaba Bhoite Vs. Vinayak Bapusaheb Kadam
Court: Mumbai
Decided on: Dec-15-1922
Reported in: AIR1923Bom264(1); (1923)25BOMLR195
Norman Macleod, Kt., C.J.1. This is an application by a successful party in the Court below that this Court should demand from the appellant security for the costs of the appeal and of the original suit. The applicant proved that an attempt was made to execute the decree in his favour for costs, but without success. Undoubtedly under Order XLI, Rule 10, the appellate Court may in its discretion demand from the appellant security for the costs of the appeal or of the original suit, or of both. We were referred to the decision in Maneckji Limji Mancherji v. Goolbai I.L.R. (1878) 3 Bom. 241 in which a similar application was made, under the corresponding Section 549 of the then Civil Procedure Code (Act X of 1877). The Court declined to make the order, the Chief Justice saying 'The poverty of the defendant is no ground for depriving him of his right to appeal.' That was a decision on the facts of the case. It wan reported, because, I presume, it was considered that a rule of guidance for ...
Gangadhar Narayan Pandit Vs. Ibrahim Bava Dingankar
Court: Mumbai
Decided on: Dec-15-1922
Reported in: AIR1923Bom265; (1923)25BOMLR197
Norman Macleod, Kt., C.J.1. The question in this appeal is whether Gangadhar as the surviving son of Naro succeeded to Naro's property to the exclusion of the sons of his deceased brothers. Naro and his four sons had become separated. Gangadhar contended that after the death of Naro he was entitled to one-fifth share in the Khoti which had come to Naro on the partition. The question was considered in Marudayi v. Boraiaami Karambian I.L.R. (1907) Mad. 348. It was there held that the right of divided sons, grand-sons and great-grand-sons of the last male owner to succeed to his divided property, is the same as in the case of undivided family property. Their Lordships said (p. 351):It must however be conceded that to allow a rule of succession per stirpes in a separated family is to admit an exception to the rule of Hindu Law by which the inheritance devolves on the nearest sapinda; but the exception is one which in our opinion necessarily follows from the exposition given by Vijnaneswar ...
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