Mumbai Court January 1923 Judgments
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Dev Chand Chatraji Vs. Jamsedji Shahpurji
Court: Mumbai
Decided on: Jan-19-1923
Reported in: 74Ind.Cas.302
Norman Macleod C.J.1. One Sorabji Rustomji and Jamsedji Shahpurji signed an entry in the plaintiff's book to the effect that they had borrowed Rs. 5.39 which the promised to pay. Payments were made of account which appeared in the handwriting of Sorabji, with the signature of Jamsedj Shahpurji added. The plaintiff relied upon these entries as saving limitation under Section 20 of the Limitation Act. The learned Judge held that the claim a rains Jamsedji, the 1st defendant in the suit was time barred; and that, although he was present at the time when the payment were made, still as he had not himself writ-tea the fact that he made the payment the payment could be of no use against him as part payment in his own hand. It that view were correct then it would be, in my opinion,, a very startling interpretation of the law. Where two persons are liable on a debt embodied in a khata and they make payments towards satisfaction of the debt, then it would be absurd to suppose that the law requi...
Bai Kashibai Vs. Purshottam Keshavji
Court: Mumbai
Decided on: Jan-17-1923
Reported in: AIR1923Bom196; (1923)25BOMLR239
Norman Macleod, Kt., C.J.1. This is a quia timet action filed by the plaintiff as owner of a property in Lalwady, Old Hanuman Cross Lane, Kalbadevi, asking for an injunction against the defendant from erecting or maintaining erected any building or erection on her premises mentioned in the plaint so as to cause a disturbance of the plaintiff's easements of light and air across the defendant's premises enjoyed by the ancient windows referred to in the plaint The trial Court granted a decree and declared that the windows in the South wall of the plaintiff's premises mentioned in the plaint and shown in the plan annexed as Ex. C to the plaint were ancient windows and that the plaintiff was entitled to an easement of light and air for his premises over and across the defendant's premises mentioned in the plaint save so far as the same was obstructed by the defendant's old building also mentioned in the plaint and showed by a white broken line in the said plan. Then an injunction was grante...
Elias Haji Ahmed Vs. K.B. Haji Esmail Sait
Court: Mumbai
Decided on: Jan-16-1923
Reported in: AIR1923Bom200; (1923)25BOMLR237
Norman Macleod, Kt., C.J.1. This case has been set down before us in a somewhat informal manner owing to an extraordinary series of errors of procedure which have been committed. Originally there was a reference to the Commissioner and on that reference to the Commissioner, a report was made. The plaintiff filed exceptions to the Commissioner's report which were heard by Mr. Justice Kajiji. The plaintiff dissatisfied with the decision of Mr. Justice Kajiji filed an appeal, and to a certain extent succeeded in this Court, but while the appeal proceedings were pending, it seems that the case was set down before the Judge for directions and costs on the Commissioner's report. That could only properly be done after the exceptions had been dealt with and finally disposed of. While the hearing of the exceptions was pending in this Court the lower Court was not competent to hear any application for further directions on the Commissioner's report which had not been finally settled. The Court h...
Rose Hill Vs. Luke C. Hill
Court: Mumbai
Decided on: Jan-16-1923
Reported in: AIR1923Bom284; (1923)25BOMLR289; 73Ind.Cas.304
Marten, J.1. This suit consists of a petition for divorce by the wife against her husband on the ground of his alleged adultery, cruelty and desertion, and a cross-petition brought by the husband against the wife and a co-respondent named Nicola Kandelaft asking for a divorce on the ground of the wife's adultery.2. On the wife's petition being called on and after I had read the two petitions, I asked counsel for the wife whether he was in a position to put his client into the box to deny the accusations against her which had been made in the husband's petition. They included in particular an allegation that the wife had travelled with the co-respondent in the same cabin from Bombay to Marseilles by the steamer Loyalty in December 1919 and that the only other occupant of that cabin was a small boy aged eight or thereabouts. Mr. Davar admitted that his client had travelled on that steamer and, after consulting his client, he told the Court that he was not in a position to call his client...
Emperor Vs. Hanmappa Rudrappa
Court: Mumbai
Decided on: Jan-15-1923
Reported in: (1923)25BOMLR231
Norman Macleod, Kt., C.J.1. The three accused were tried before the Sessions Judge of Bijapur on a charge of murder as well as on an additional charge framed by the Sessions Court under Section 201, Indian Penal Code, of causing disappearance of evidence of the commission of the offence of murder in order to screen the culprits. The second and third accused were acquitted on both charges. The first accused was acquitted on the charge of murder, but convicted under Section 201, Indian Penal Code. It was argued for the accused that a conviction under Section 201, Indian Penal Code, could not be legal as he was suspected to be one of the murderers. I do not see myself any reason why a person should not be charged first with having committed a murder; secondly, in the alternative, if the evidence does not show that he has committed the murder, that he has been guilty of causing evidence to disappear with the intention of screening the offender; in other words, of having been an accessory a...
J.P. Fernandez Vs. P.D. Rodrigues
Court: Mumbai
Decided on: Jan-14-1923
Reported in: AIR1924Bom231; (1923)25BOMLR280
Mulla, J.1. The question raised by this Summons is whether the Commissioner for taking accounts has power to review his findings on an item in the accounts directed to be taken by him under an Order of Reference. [After setting out the facts as above his Lordship proceeded].2. It was contended on his (plaintiff's) behalf that a review can only be granted under Section 151 of the Code of Civil Procedure or under Order XLVII, Rule I, of the Code, that Section 151 did not apply to proceedings before the Commissioner, and that Order XLVII, Rule I, did not apply as a review under that Order can only be granted from a decree or order of the Court. On the other hand, it was contended for the defendant on the authority of the ruling in Laxmibai v. Hussainbhai I.L.R. (1619) 41 Bom. 719 : 18 Bom. L.R. 798 that once a reference has been made to the Commissioner the Court has no control over the proceedings until the Commissioner has made his report except in certain cases, and that the present ca...
Rangappa Kondappa Korpe Vs. Vithu Krishnaji Waikar
Court: Mumbai
Decided on: Jan-12-1923
Reported in: AIR1923Bom199; (1923)25BOMLR278
Norman Macleod, Kt., C.J.1. This is a suit filed by the plaintiff to eject the defendants, and recover possession of the plaint property, the defendants being in possession under a rent-note of June 1, 1904, executed in plaintiff's favour on an annual rent of Rs 18-12-0. The plaint)IF is a mortgagee, the defendant having executed four mortgages with regard to the plaint property. They are set out at page 6 of the print. The first three are simple mortgages and the fourth one was a mortgage with possession ; and this is a suit really by a mortgagee in possession against his tenant. The Courts, however, have dealt with the case as if it was a suit filed under Section 3(y) of the Dekkhan Agriculturists' Relief Act, and have entertained a claim by the defendants to be allowed to redeem. The defendants then claimed that they were entitled to redeem the mortgaged property on paying off the mortgage money under Ex. 23 only, and that as the plaintiff-mortgagee could not sue to recover on the s...
Srimat Deivasikhamani Annamalai Desikar Vs. Rao Bahadur M. R. Govinda ...
Court: Mumbai
Decided on: Jan-10-1923
Reported in: (1923)ILR46Bom579
1. There is absolutely no evidence worth the name of the alleged custom or implied contract that the devastanam, the melvaramdar, was responsible for collecting the melvaram from the subtenants, and that the kudivaramdar, i.e., the mutt, was not liable in any way. Failing proof of such a custom, the mutt, as kudivaramdar, is bound to pay the melvaram to the devastanam. This melvaram has only been paid in part, as shown by the accounts kept by defendant himself, and consequently the balance is due from the mutt. It does not lie with the defendant to question the quantum of arrears shown in his own accounts. 2. The only other point with which it is necessary to deal is the question of limitation. Defendant as trustee of the temple and of the mutt united in himself the function of landlord and of tenant, and consequently could not bring a suit for rent against himself, on the principle that when the hand that receives and the hand that pays is the same no suit will lie for payment. It is ...
Raghunath Govind Mayekar Vs. Gangaram Yesu Mayekar
Court: Mumbai
Decided on: Jan-09-1923
Reported in: AIR1923Bom404; (1923)25BOMLR474; 75Ind.Cas.893
Norman Macleod, Kt., C.J.1. One Vithal Hari Kochrekar obtained a money-decree against the present petitioner in Suit No. 84 of 1918 in the Court of the Subordinate Judge at Malvan on March 22, 1918. The petitioner alleges that he paid the whole amount of the decree to the plaintiff on October 28, 1918, in full satisfaction; that the decree-holder recorded the payment on his copy of the decree, but the satisfaction of the decree was not certified to the Court, as it should have been, under Order XXI, Rule 2, of the Civil Procedure Code. It would appear that thereafter the decree-holder made an application for execution. Before the application was dealt with by the Court, the decree-holder transferred the decree to the present opponent on May 18, 1921. The opponent then applied for execution of the decree.2. The Court on the hearing of the application raised three issues : (1) Can the alleged satisfaction which was not certified to the Court be recognized in execution? (2) If so, is the ...
Tukaram Mahadappa Rajmane Vs. Jaganath Savlaram Kathle and ors.
Court: Mumbai
Decided on: Jan-09-1923
Reported in: AIR1923Bom236; 76Ind.Cas.215
1. This was a suit for specific performance of a contract entered into by the first defendant with the plaintiff for the sale of certain land for a sum of Rs. 7,000 besides the amount due on a mortgage. The contract was entered into on 15th January 1920 by means of a writing appearing in the books of one Chanbasappa. It was signed by both parties and witnessed. The first defendant had after the contract sold the property to defendants Nos. 2 to 5 who were accordingly made parties to the suit. In the written statement the defendant said that the agreement appearing in the book did not contain the whole of the agreement arrived at between the parties, but there was an oral agreement that if any body else perchance offered more than Rs. 500 to the first defendant above the agreed amount before the expiry of the period in the agreement, the agreement with the plaintiff was to be treated as null and void.2. The plaintiff called Chanbasappa as his witness, and in cross-examination he said th...
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