Mumbai Court February 1923 Judgments
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Chimanbhai Kalyanbhai Vs. Keshavlal Bulakhidas
Court: Mumbai
Decided on: Feb-21-1923
Reported in: AIR1923Bom402; (1923)25BOMLR443; 73Ind.Cas.464
Norman Macleod, Kt., C.J.1. In this case there was a reference to arbitration in which an award was made. When an application was made to the Court to pass a decree in terms of the award, objections were taken to it on various grounds. The Judge framed three issues for preliminary trial:(1) Was the permission of the Court taken to refer this dispute to the arbitrator in this case so as to make the reference binding on the minor defendants on the record? (2) If not, is the award Exhibit 191 binding on the said minor defendants? Is the reference itself not bad if the first issue is held in the negative?(3) Is defendant Dhansukhlal not a major now? Did he attain his majority pending the suit; if so, on what date?2. It was found that defendant Dhansukhlal became a major on July 19, 1920, pending the suit. The first two issues were found against the plaintiffs seeking for a decree on the award. The consequence was that the Court refused to pass a decree in terms of the award. The arbitratio...
The Government of Bombay Vs. Khanderao Ramchandra Talpade
Court: Mumbai
Decided on: Feb-21-1923
Reported in: AIR1923Bom417; (1923)25BOMLR794
Norman Macleod, Kt., C.J.1. These are five appeals from the decision of the Tribunal of Appeal in References Nos. 29, 31 and 32 of 1920 and 78 and 79 of 1920, in which certificates have been given that they are fit cases for appeal to the High Court. Those certificates appear to have been granted on the ground that an important question of principle was involved, although as a matter of fact if there a question of principle was involved, it had already been before the High Court on two different occasions, and the High Court, as far as it could, laid down what method should be followed with regard to the apportionment of the present value of Toka lands between Government and the Toka tenants. But it seems that each party wants this Court not only to lay down some uniform method of apportionment, but to go still further and fix the rate of assessment for arriving at the apportionment in all cases. No doubt that would be very desirable, but considering the varying nature of these Toka la...
Mahadevappa Chansomappa Desai Vs. Kashirao Somappa
Court: Mumbai
Decided on: Feb-21-1923
Reported in: AIR1923Bom467; (1923)25BOMLR797
Norman Macleod, Kt., C.J.1. The plaintiff filed Suit No. 4 of 1918 in the Court of the First Class Subordinate Judge of Bijapur to recover his one-third share by partition of the property specified in Schedules A to E to the plaint, to get a declaration that the alienation of the property in Schedule D by his father by an award decree in Suit No. 2 of 1906 in the Bijapur District Court was null and void after his father's death and to get a declaration that he was entitled to a one-third share in the property in Schedule E after the death of defendant No. 6 together with past and future mesne profits.2. Somappa his father had three sons, Krishnarao defendant No. 1, Krishnappa defendant No. 2, and Mahadevappa, the plaintiff. During his life-time he divided the plaint property into four shares and gave each of his sons one share, keeping one for himself. Subsequently he willed away his own share in favour of his sons. In Suit No. 221 of 1913 filed by the plaintiffin the Court of the Firs...
Muhammad Kunhi Vs. Paokrichi Umma and Eleven ors.
Court: Mumbai
Decided on: Feb-21-1923
Reported in: (1923)ILR46Bom650
Spencer, J.1. In these connected Second Appeals a question of law has been taken whether a course of devolution of property among females to the exclusion of males is unknown in North Malabar and is repugnant to Marumakkattayam law as followed by Mappillas in that district. The Subordinate Judge and the District Judge who heard the first appeals have come to different conclusions on the point, and the authorities to which the District Judge refers in his judgment are neither clear nor uniform.2. In Bivi Umah v. Keloth Cheriyath Kutti(1) (1910) M.W.N., 693., an instrument, of gift which limited the descent of property to the female line was held by Collins, C.J., and Parker, J., to be valid. The learned Judges observe that the gift was of the class known as strisothu or henumula and created an estate known to Marumakkattayam usage. They quote Kunhacha Umma v. Kutti Mammi Hajee(2) (1893) I.L.B., 16 Mad, 201., a Full Bench case, which is not however an authority upon the significance and ...
Chimanbhai Kalyanbhai and anr. Vs. Keshavlal Bulakhidas and ors.
Court: Mumbai
Decided on: Feb-21-1923
Reported in: (1923)ILR47Bom721
Norman Macleod, Kt., C.J.1. In this case there was a reference to arbitration in which an award was made. When an application was made to the Court to pass a decree in terms of the award, objections were taken to it on various grounds. The Judge framed three issues for preliminary trial:(1) Was the permission of the Court taken to refer this dispute to the arbitrator in this case so as to make the reference binding on the minor defendants on the record ?(2) If not, is the award, Exhibit 191, binding on the said minor defendants? Is the reference itself not bad if the first issue is held in the negative?(3) Is defendant, Dhansukhlal, not a major now Did he attain his majority pending the suit; if so, on what date?2. It was found, that defendant Dhansukhlal became a major on 19th July 1920 pending the suit. The first two issues were found against the plaintiffs seeking for a decree on the award. The consequence was that the Court refused to pass a decree in terms of the award. The arbitr...
Sukhanand Gurumukhrai Vs. Bhimraj R. Potdar
Court: Mumbai
Decided on: Feb-20-1923
Reported in: AIR1923Bom394; (1923)25BOMLR390; 73Ind.Cas.254
Mulla, J.1. This is an originating summons for reliefs usual in a partnership action. The defendant denies the partnership, and it is contended on his behalf that the question as to the existence of the partnership is not one that can he disposed of on an originating summons. The correspondence annexed to the written statement shows that the plaintiff was aware at the date at the institution of the suit that the defendant had denied the partnership. For the plaintiff it is contended that the amendment of the rule as to originating summons in partnership oases indicates an intention that such a question can now be determined by originating summons.2. The old Rule 213 was as follows:When the existence of the partnership or the right to, or the fact of the dissolution thereof, is not in dispute, any partner in a firm or his representatives may take out an originating summons returnable before the Judge sitting in Chambers against his partners, or former partners, or their representatives ...
Hari Shridhar Prabhu Desai Vs. Sakharam Padmanna Magdum
Court: Mumbai
Decided on: Feb-20-1923
Reported in: AIR1923Bom391; (1923)25BOMLR449; 73Ind.Cas.443
Norman Macleod, Kt., C.J.1. The appellant in this case obtained a decree for possession of the suit property. An appeal was filed, and pending the hearing of the appeal the defendants remained in possession. The appeal was dismissed and then the appellant discovered that the present respondents, while in possession of the property pending the appeal, appeared to have committed waste by cutting down trees. Consequently the appellant took out a Darkhast to ascertain the damages alleged to have been committed by the respondents.2. It was contended that this was not a question in execution, and that the appellant would have to file a separate suit. Both the lower Courts have dismissed the Darkhast on this ground. But we think that the question with regard to the waste committed by the judgment-debtor after decree was a question arising between the parties relating to the execution, discharge or satisfaction of the decree, and must be determined by the Court executing the decree, and not by...
Ahmed Balu Dabir Vs. Ganesh Vishnu Pendse
Court: Mumbai
Decided on: Feb-19-1923
Reported in: AIR1923Bom462; (1923)25BOMLR521; 73Ind.Cas.1035
Crump, J.1. The plaintiff in this case was a Vatandar Khot of the village of Padhvan in the Mangaon Taluka of Kolaba District, and the substantial question in the suit is whether the plaintiff or the defendants were the owners of certain injali trees standing upon lands which were in the occupation of the vendors of defendants. These vendors, it is now conceded, were not Dharekaris, but held their lands since the introduction of the Survey Settlement as tenants of the Khot, subject to certain rights in the nature of rights of occupancy.2. The case appears to have been approached in the lower Court on the footing that the Government were formerly owners of the trees growing upon these lands ; and there seems little reason to doubt that that is the true view of the matter. The lands are Khoti-nisbat lands, and it has been held by this Court in The Collector of Ratnagiri v. Vyankatrav (1871) 8 B.H.C.R. (A.C.J.) 1 that by virtue of Dunlop's Proclamation of 1824, the Khots became the owners...
Chunilal Asharam Vs. Kashibhai Nathabhai
Court: Mumbai
Decided on: Feb-16-1923
Reported in: AIR1923Bom381; (1923)25BOMLR440; 73Ind.Cas.419
Norman Macleod, Kt., C.J.1. This is an appeal from an order of the First Class Subordinate Judge on an application of a very curious nature. The plaintiff filed a suit against two defendants, who were father and son. The suit was dismissed against the first defendant, and decreed against the second defendant. The plaintiff applied to the Court to attach the property of the son. The first defendant then applied to the Court that the Court should not execute the decree against properties which he alleged belonged to him, but if the Court had granted execution and attached his properties the attachment should be raised. The learned Judge allowed affidavits to be filed and came to the conclusion that the first defendant had proved his case for the purpose of the application, and that the relief of the decree-holder was to bring a regular suit and get it declared therein that the property was of the judgment-debtor and liable to be attached and sold. So he ordered that the property should n...
Gulam MohiuddIn Narmavala Vs. Dayabhai Chimanlal
Court: Mumbai
Decided on: Feb-16-1923
Reported in: AIR1923Bom398; (1923)25BOMLR447; 73Ind.Cas.442
Norman Macleod, Kt., C.J.1. The first defendant held over after notice was given to vacate the suit property which was let out to him by the plaintiff. He sub-let the premises and in addition to the rent received a premium of Rs. 1250. Under Section 2(12) of the Code 'mesne profits' of property means those profits which the person in wrongful possession of such property actually has received or might with ordinary diligence have received there from, and clearly Rs. 1351 was profit received by the first defendant, so the plaintiff was entitled to a decree for that amount together with rent at the annual rate of Rs. 271 for the period for which he sued, less the amount which had been paid by defendant No. 1, namely, Rs. 542.2. The plaintiff claims that pleader's fees are payable on Rs. 5,000 the value of the subject-matter of the suit. We think that contention is sound under the law regulating the charge for pleader's fees when the suit was filed. The appeal, therefore, succeeds and ther...
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