Mumbai Court August 1926 Judgments
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Mahomedsa Khadirsa Vs. Khadirsa Hajisa
Court: Mumbai
Decided on: Aug-12-1926
Reported in: AIR1927Bom398; (1927)29BOMLR241; 103Ind.Cas.418
Fawcett, J.1. The sole point in this appeal is the question of limitation. The District Judge has held that Section 10 of the Indian Limitation Act applies to the case and that therefore the plainttiffs' suit was not time-barred. No doubt it is true that Section 10 was not relied upon in the trial Court, which dismissed the suit as being time-barred, and also that Section 10 is not referred to in the grounds of appeal to the lower Court, but that would not suffice to prevent the District Judge from acting on Section 10, if it really applied. Mr. Desai for the appellant contends that the District Judge erred in holding it applied. The question seems to me to depend upon whether it can be said, first of all, that the property sued for had become vested in trust in defendant No 1 (the appellant) for a specific purpose, and secondly, that the plaintiff is following trust property to recover it for the specific purpose in question. This is practically what has been laid down by the Privy Co...
Raghunandan Nanu Kothare Vs. Hormasji Bezonji Bamji
Court: Mumbai
Decided on: Aug-11-1926
Reported in: AIR1927Bom187; (1927)29BOMLR207
Amberson Marten, Kt., C.J.1. Before we hear the main appeal it is convenient first to determine issue No. 1 in the trial Court, viz., whether the defendant was a partner in the firm of Messrs. Nanu Hormasjee & Co. This is cross-objection No. 1.2. Now here we have the circumstance that the plaintiff and defendant, who are two experienced solicitors of the High Court of Bombay, deliberately enter into an agreement of July 31, 1915, Exh. A, under which they expressly agree that 'they shall be partners in the said firm of Nanu Hormasjee & Company and shall practise as attorneys under the said name and firm.' The partnership is to be for one year, and on its determination the defendant is to 'cease to have any claim or interest in the firm and its outstandings, the property, name and goodwill thereof.'3. Further, the plaintiff and defendant gave a general notice as follows :We beg to inform you that we have admitted Mr. Hormusji Bezonji Bamji (the defendant) into partnership with us from th...
Sitabai Ramrao Deshmukh Vs. Govindrao Ramrao Deshmukh
Court: Mumbai
Decided on: Aug-11-1926
Reported in: AIR1927Bom151; (1927)29BOMLR236; 101Ind.Cas.46
Fawcett, J.1. The District Judge has clearly found that the deceased expressed his unwillingness to accede to the suggestion that he should adopt a boy, and, in my opinion, his finding cannot in second appeal be legitimately taken further than that. It is argued for the appellant that some of the witnesses, who have been believed by the District Judge on the above point, have stated that the deceased said that his estate should devolve in a certain manner after his death, for instance, that his two wives should divide the estate half and half or that it should go to his daughter on their death. But the District Judge has not found any such statement proved, and I do not think that in second appeal we can assume any such finding. The question, therefore, in my opinion, is whether the mere fact that the deceased set his face against himself adopting a boy prior to his death amounts to an implied prohibition against either of his two widows adopting. Looking at the case from a general poi...
Kesserbai Vs. Kaku Vallabhdas Ravji
Court: Mumbai
Decided on: Aug-11-1926
Reported in: AIR1927Bom394; (1927)29BOMLR665
Mirza, J.1. This is a summons taken out by the plaintiff in Suit No. 3163 of 1920 for directions, as to whether the plaintiff in Suit No. 1664 of 1918 is entitled to priority over the other creditors of the firm of Messrs. Karsondas Darnodar & Co. by reason of the charging order dated October 7, 1925, and for costs. [His Lordship after setting out the facts as above continued :]2. I made the charging order on October 7, 1925, as Chamber Judge following a long-standing practice of this Court whereby such charging orders are made whenever execution is sought against assets in the hands of a receiver appointed by the Court. The practice was started by Macleod J. as Chamber Judge, and has been followed by succeeding Chamber Judges. The older practice of issuing in such cases a notice to the officer concerned in the manner provided by Order XXI, Rule 52, was abrogated and the party seeking execution was required instead to obtain a charging order from the Judge. The practice of this Court i...
Maneklal Mansukhbai Vs. the Saraspur Manufacturing Company Ltd.
Court: Mumbai
Decided on: Aug-10-1926
Reported in: AIR1927Bom167; (1927)29BOMLR253; 101Ind.Cas.144
Amberson Marten, Kt., C.J.1. The question we have to decide is whether leave ought to be given to the appellant to continue against the respondent-company a suit No. 672 of 1924 filed by him in the Court of the First Class Subordinate Judge at Ahmedabad against the respondent-company and two other defendants who were in fact the agents of the respondent-company. That leave is required because the company is in liquidation and the suit in question was brought after the winding-up petition although before the winding-up order. Accordingly, Section 171 of the Indian Companies Act, 1913, provides:-When a winding-up order has been wade, no suit or other legal proceeding shall be proceeded with or commenced against the Company except by leave of the Court, and subject to such terms as the Court may impose.2. Of course as we all know, the winding-up order relates back to the date of the presentation of the winding-up petition.3. The plaint itself asked for a declaration (a) that a sum of Rs. ...
Narayan Putapa Chandragatgi Vs. Vaikunt Subaya Sonde
Court: Mumbai
Decided on: Aug-09-1926
Reported in: (1926)28BOMLR1245
Amberson Marten, Kt., C.J.1. In our judgment the question submitted to this Full Bench ought to be answered in the affirmative.2. The final result of the applicants' application to have the ex parte decree set aside was that it was rejected. Whether one arrives at that result by reading into the order of May 30, 1925, an implication that, if the conditions therein mentioned were not satisfied, the application would be rejected ; or, whether we take the later order of July 18, 1925, which specifically stated that as the conditions were not satisfied, the application was rejected, I think the practical result is the same. Consequently, in our judgment, there was 'an order under Rule 13 of Order IX rejecting an application...for an order to set aside a decree passed ex parte' within the meaning of Order XLIII, rule (1) (d), and. therefore, an appeal lay under Order XLIII.3. In effect the order of May 80, 1925, was a conditional order for rejection of the application. This conditional orde...
Narayan Putapa Chandragatgi and ors. Vs. Vaikunt Subaya Sonde
Court: Mumbai
Decided on: Aug-09-1926
Reported in: AIR1927Bom1
Marten, C.J.1. In our judgment the question submitted to this Fall Bench ought to be answered in the affirmative 2. The final result of the applicants' application to have the ex-parte decree set aside was that it was rejected. Whether one arrives at that result by reading into the order of May 30, 1925, an implication that, if the conditions therein mentioned were not satisfied, the application would be rejected ; or, whether we take the later order of July 18, 1925, which specifically stated that as the conditions were not satisfied, the application was rejected, I think the practical result is the same. Consequently, in our judgment, there was 'an order under Rule 13 of Order 9 rejecting an application...for an order to set aside a decree passed ex parte' within the meaning of Order 43, Rule (1)(d), and, therefore, an appeal lay under Order 43.3. In effect the order of May 30, 1925, was a conditional order for rejection of the application. This conditional order did not finally set ...
Rukmabai Datusa Powar Vs. Fakirsa Hanmantsa Chavan
Court: Mumbai
Decided on: Aug-06-1926
Reported in: AIR1927Bom184; (1927)29BOMLR230; 101Ind.Cas.49
Shah, J.1. This appeal arises out of a suit filed by the plaintiff against his deceased uncle's daughter, the defendant. The relationship of the parties is given in the pedigree in the plaint. The property with reference to which the dispute has arisen belonged to Nagusa, and on his death, it went to his widow Krishnabai, who died in 1913. The plaintiff is the nephew, that is the son of the brother of Nagusa, and the defendant is the daughter of another brother of Nagusa. It appears that there was a dispute between the plaintiff and the defendant with regard to this house. On November 29, 1920, there was a reference to arbitration. The arbitrator made his award on November 28, 1920, and the present plaintiff filed an application to have a decree in terms of the award on December 6, 1920. The decree was passed in terms of the award on December 7. In pursuance of the decree as soon as the sum of Rs. 200 was tendered by the present defendant and as soon as he realised that that was the on...
F.E. Dinshaw Vs. John Carapiet Galstaun
Court: Mumbai
Decided on: Aug-04-1926
Reported in: AIR1927Bom245; (1927)29BOMLR382
Madgavkar, J.1. The question in these suits arising out. of para. 14 of the written statement of the defendant in each, is whether the defendant is entitled, by reason of the Suit No. 22 of 1926 instituted by him in the First Class Subordinate Judge's Court of the 24-Paraganas, Bengal, to a stay of both the suits under Section 10 of the Code of Civil Procedure. The question arises on a notice of motion taken out in both the suits by the defendant, Written statements have been put in in both the suits but issues have not been raised. I propose to confine myself strictly to this question and to touch as little as possible the merits of the other contentions on either side.2. The defendant in the present suits executed a mortgage in 1921 in favour of the plaintiff, and subsequently, an agreement in 1923 under which, on the one hand time was extended, and on the other, interest was raised, Principal and interest were repayable by instalments.3. The second suit is in respect of a further ad...
Chatur Bawa Mulji Vs. Popatlal Narandas
Court: Mumbai
Decided on: Aug-03-1926
Reported in: AIR1927Bom175; (1927)29BOMLR228
Amberson Marten, Kt., C.J.1. In this case there was a preliminary decree for redemption passed in January 1923 in favour of the respondent-mortgagors. They had to pay the money within six months. The order provided that if they did not do so, the mortgagee was to be entitled to recover the same by sale of the property in suit. In fact they did not pay the money within six months, and they only paid it into Court in September 1924. On the other hand, the mortgagee in the meanwhile had not taken any steps to ask either for sale or foreclosure by reason of the default in payment by the mortgagors. The conduct of both parties may to some degree be accounted for by the fact that there was a second appeal by the mortgagee to the High Court against the preliminary decree for redemption, but eventually he was unsuccessful.2. Now it appears that the money was accepted by the Court in error as to the true facts, that is to say, the Clerk of the Court was not told that the payment was out of time...
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