Mumbai Court April 1923 Judgments
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Vishnu Vishvanath Nimkar Vs. Ramchandra Sadashiv Nimkar
Court: Mumbai
Decided on: Apr-09-1923
Reported in: AIR1923Bom453; (1923)25BOMLR508; 73Ind.Cas.1017
Norman Macleod, Kt., C.J.1. We think that this appeal must succeed. Defendants Nos. 3 and 4 were minors at the time when the property was sold and the sale would only affect their share if it be proved that it was for necessity. It is going too far to say that a manager of a Hindu joint family can justify a sale of joint family property merely on the ground that the sale at the time appeared to be advantageous. The pertinent passage on the subject in Mayne on Hindu Law and Usage can be found at pages 476 and 477, last edition. At the bottom of p. 477 there is the following passage from the judgment in Palaniappa Chetty v. Deivasikamony Pandara :No authority has been cited giving any countenance to the notion that a Shebait is entitled to sell debottar lands solely for the purpose of so investing the price of it as to bring in an income larger than that derived from the probably safer and certainly more stable property, the debottar land itself.2. The commentary says:The case referred t...
Venkatraman Rama Hegde Kanni Vs. Baburaya Venkatesh Prabhu
Court: Mumbai
Decided on: Apr-06-1923
Reported in: AIR1923Bom454; (1923)25BOMLR516; 73Ind.Cas.1020
Norman Macleod, Kt., C.J.1. The plaintiff sued to recover Rs. 100 as balance due for Mulgeni rent in the Court of the Subordinate Judge of Honavar. The Judge then presiding in that Court had no Small Cause Court powers, but when the suit came on for trial, it was decided by Mr. Halbhavi who had Small Cause Court powers up to Rs. 100. The defendants filed an appeal to the District Court, when the District Judge held that there was no appeal on the ground that it was a Small Cause Court suit, and although it had been tried as a regular suit the question of appeal would depend upon the nature of the suit and not on the way in which it was described.2. The attention of the District Judge does not seem to have been drawn to the decision of this Court in Sambhu Dhanaji v. Ram Vithu I.L.R. (1903) 28 Bom. 244 In that case the suit was filed for recovery of Rs. 81-4-0 in the Court of the Subordinate Judge who had only at that time Small Cause Court powers up to Rs. 50. His powers were subsequen...
V.C.T.N. Chidambaram Chetti Vs. theivanai Ammal
Court: Mumbai
Decided on: Apr-06-1923
Reported in: (1923)ILR46Bom768
Walter Salis Schwabe, Kt., K.C., C.J.1. The present appellant is the decree-holder. The respondent is the legal personal representative of a brother of the judgment-debtor who had been brought upon the record for the purpose of execution. An application had been made for attachment of the moveable property of the original defendant, the judgment- debtor. Those proceedings had come to nothing by reason of the fact that the present appellant failed to find the necessary expenses. Within a year of those proceedings, application was made for attachment of the immoveable property. By reason of the operation of Order XXI, Rule 22, no notice of those proceedings was required to be given to the representative of the judgment-debtor and no notice was given. An application was then made for the sale of the property and in due course a notice for settling the sale proclamation, in form No, 21 of appendix E of the Code of Civil Procedure, was issued. That notice stated that the decree-holder had a...
Mallawa Father Irbasaya Hiremathod Minor by Her Next Friend Virpaxaya ...
Court: Mumbai
Decided on: Apr-06-1923
Reported in: AIR1924Bom114; 81Ind.Cas.1052
1. The plaintiff, a minor, filed this suit by her next friend to recover possession of the suit property. It belonged to her father Irbasaya who left a widow Nilawa. She died in September 1914. Thereafter Shivrudraya who had been living with the widow gave the plaintiff in marriage to the present third defendant, in November, 1914. Six months later Virupasaya the grandson of Irbasaya's brother took the plaintiff to his house and she had been living with him ever since. The minor was clearly entitled to possession of the suit property. But her suit has been dismissed by the lower Appellate Court on the ground that her husband's right to the guardianship of his minor wife's property was irresistible. That proposition we cannot accept. The minor is entitled to bring a suit through her next friend according to the provisions of the Civil Procedure Code, to recover her own property, and the only person who would be entitled to resist such a proceeding would be the person appointed as the gu...
irangauda Fakirgauda Patil Vs. Ningappa BIn Gopappa Gopagauda
Court: Mumbai
Decided on: Apr-06-1923
Reported in: AIR1924Bom517; 76Ind.Cas.636
1. In 1907 plaintiff's mother Balava transferred certain of the properties belonging to her minor son to one Tippava. The transfer was actually made to the sister's son of Tippava. On the same day Tippava purported to execute in favour of Balava a sale-deed in respect of certain property. The plaintiff came on age in 1914. But in 1918 Tippava having died the reversioners to her husband took proceedings to recover back the properties which she had transferred in 1907 to Balava and they succeeded. The plaintiff, therefore, having lost the la nd which the mother had got for him really in exchange on account of Balava's and Tippava's relationship, brought this suit against the defendants to recover possession alleging that the defendant purchased the land from his mother by misrepresenting facts to her and without consideration, and that he wished to set aside the sale on the ground that there was no necessity for it.2. The suit as ramed was clearly under Article 44 of the Limitation Act, ...
The Secretary of State for India Vs. Great Indian Peninsula Railway
Court: Mumbai
Decided on: Apr-05-1923
Reported in: AIR1923Bom423; (1923)25BOMLR470; 73Ind.Cas.468
Norman Macleod, Kt., C.J.1. This is a case stated by the agreement of the parties for the opinion of the Court under Order XXXVI, Rule 1. The question is whether stores purchased and imported by the defendant company into India for the use of the undertaking are at the time of importation goods belonging to Government. If the answer is in the affirmative it has been agreed that the plaintiff shall refrain from levying or seeking customs duty upon such stores. The defendant company was incorporated by statute 11 & 12 Vic. Clause 83 intituled an Act for incorporating the Great Indian Peninsula Railway Company and for other purposes contained therein.2. Statute 63 & 64 Vic. Clause 38 was passed to provide for the vesting of the railways and other property of the Great Indian Peninsula Railway Company in the Secretary of State for India in Council and by Section 4 it was provided that as and from June 30, 1900, the Railways, works and divers other property of the company should be transfer...
Joita Bechar Vs. Parshottam Sankalchand
Court: Mumbai
Decided on: Apr-05-1923
Reported in: AIR1923Bom455; (1923)25BOMLR488; 73Ind.Cas.974
Norman Macleod, Kt., C.J.1. The four accused were charged before the Additional Sessions Judge of Ahmedabad, viz., the third with an offence Under Section 494, Indian Penal Code, and the other three accused with abetting that offence. The Sessions Judge agreeing with the assessors acquitted all the accused.2. This is an application by the complainant to the High Court to interfere under its revisional powers. We have been referred to a decision in Ahmedabad Municipality v. Maganlal(1906) 9 Bom. L.R. 156 in which Mr. Justice Batty said :Although this Court does not ordinarily interfere with orders of acquittal in revision, yet it cannot be expected that it would hesitate to do as where the acquittal is based not upon an Appreciation of doubtful evidence, but upon a manifest error in law appearing on the face of the judgment.3. The order of acquittal in that case was passed by a First Class Honorary Magistrate, and it constitutes a material difference that the present case was tried by a...
The Saraspur Manufacture Co. Vs. B.B. and C.i. Railway Co.
Court: Mumbai
Decided on: Apr-05-1923
Reported in: AIR1923Bom452; (1923)25BOMLR513; 73Ind.Cas.1027
Norman Macleod, Kt., C.J.1. These are four companion applications under a. 25 of the Provincial Small Causes Courts Act. In all the four cases the plaintiffs desired to sue the Bombay, Baroda and. Central India Railway Company to recover damages for the loss of goods. The title of the defendant was entered in each plaint as follows: 'The Agent, B.B. & C.I. Ry. Company Ltd.', but the prayer was that the defendant company should pay the amount sued for. In two of the suits the defendant company filed their written statements pleading to the merits without taking any objection to the form of the title. In the other two suits they filed written statements, not only pleading to the merits, but also objecting that the plaintiffs' suits could not lie as they were filed against the defendant's Agent. The Small Cause Court Judge dismissed all the suits on the ground that they were badly framed. He relied upon a decision of Mr. Justice Ross in Sinehi Ram Bihari Lall v. The Agent, East Indian Rai...
In Re: Baroda and Central India Ry. Company Vs. Sukhadia Shankaralal J ...
Court: Mumbai
Decided on: Apr-05-1923
Reported in: AIR1925Bom96
1. The plaintiff sued to recover the price of goods short delivered by the defendant Company. The claim was decreed by the First Class Subordinate Judge in the Small Cause Court, Suit No. 174 of 1922, at Nadiad. The plaintiff had signed a risk note in the usual form, and he has not even proved that there had been a loss of one or more complete packages out of the consignment of 63 bags of sugar. That would be sufficient to dispose of the suit. But beyond that, even supposing one or more complete packages had been missing and not delivered still the plaintiff would have to show that the loss was due to the wilful neglect of the Ry. Co., or its servants.2. But the Judge has completely misunderstood the nature of the case, as he said that the burden was on the defendant to show how the loss had arisen or could have arisen. The contract between the parties is contained in the Risk Note and Section 76 of the Indian Railways Act has no application.3. The Rule, therefore, must be made absolut...
Bindu Govind Naik Kurbet and anr. Vs. Hanmant Govind Bhat and anr.
Court: Mumbai
Decided on: Apr-05-1923
Reported in: AIR1924Bom71; 79Ind.Cas.407
1. This case belongs to that numerous class of cases in which difficulties arise in execution of an instalments decree. The decree passed on the 18th April 1913 for Rs. 12,359-1-0 was payable by yearly instalments of a thousand rupees, the first of which was payable on the. 31st March 1914. On failure to pay any one instalment in time the decree allowed sale of the mortgage property or a sufficient portion thereof to recover the amount 'of the instalment overdue. The creditors sought to make the decree final on default instead of applying for sale. Apparently, the Court, instead of pointing out the error, made orders from time to time as instalments became due for making the decree final with regard to a particular instalment. On the 80th October 1919 the creditors applied to make the decree final as regards the instalment due on 31st March 1917. That application coming before a different Judge was rejected. The plaintiffs applied for execution on the 26th July 1920 with regard to the ...
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