Mumbai Court January 1927 Judgments
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Emperor Vs. Maganlal Jhaverchand
Court: Mumbai
Decided on: Jan-19-1927
Reported in: AIR1927Bom366; (1927)29BOMLR482
Fawcett, J.1. In this case the accused has been convicted of theft under Section 379, Indian Penal Code. He was put on his trial before a Magistrate, who was then a Second Class Magistrate, and he framed a charge against the accused under Section 3/9. Subsequently, before the trial had concluded, he was given First Class Magisterial powers, and judgment was delivered by him as a First Class Magistrate. He sentenced the accused to pay a fine of Rs. 31 or in default to suffer a month's rigorous imprisonment. The accused appealed to the District Magistrate. The latter is doubtful whether an appeal lies to him or to the Sessions Judge and has accordingly referred this question for decision.2. Mr. Dhruv for the accused contends that the appeal lies to the District Magistrate. The Government Pleader does not appear.3. The question depends upon the meaning of the words 'Any person convicted on a trial held by any Magistrate of the second or third class' in Section 407, and the words, 'Any per...
Emperor Vs. Maganlal Jhavarchand
Court: Mumbai
Decided on: Jan-19-1927
Reported in: 101Ind.Cas.602
Fawcett, J.1. In this case the accused has been convicted of theft under Section 379, Indian Penal Code. He was put on his trial before a Magistrate, who was then a Second Class Magistrate, and he framed a charge against the accused under Section 379. Subsequently, before the trial had concluded, he was given First Class Magisterial powers, and judgment was delivered by him as a First Class Magistrate. He sentenced the accused to pay a fine of Rs. 31 or in default to suffer a month's rigorous imprisonment. The accused appealed to the District Magistrate. The latter is doubtful whether an appeal lies to him or to the Sessions Judge and has accordingly referred this question for decision.2. Mr. Dhruv for the accused contends that the appeal lies to the District Magistrate. The Government Pleader does not appear.3. The question depends upon the meaning of the words 'Any person convicted on a trial held by any Magistrate of the second or third class' in Section 407, and the words, 'Any per...
Vidya Shankar Vs. Vidya Narsinha
Court: Mumbai
Decided on: Jan-18-1927
Reported in: (1927)29BOMLR839
John Wallis, J.1. This is an appeal from a decree of the High Court of Bombay setting aside the decree of the Subordinate Judge of Belgaum in terms of a compromise entered into between the plaintiff and the second defendant in the suit, and remanding the case for disposal, on the ground that the decree was passed in the absence of the first defendant and without notice to him.2. The suit, O.S. 219 of 1910, instituted in the Subordinate Court of Belgaum, was between rival claimants to the office of Jagadguru or head of the Sankeshwar and Karvir Mutt, an ancient foundation having two brunches, one at Sankeshwar in the Belgaum District of the Bombay Presidency and the other in the native State of Kolhapur (which of the two is the principal branch is in dispute) and owning properties both in British territory and in Kolhapur. The dispute as to the succession arose from the fact that Balavadakar, a former head of the Mutt, who had appointed and installed one Brahinanalkar as his successor i...
Rajrajeshwarashram Vs. Svarupanandtirtha
Court: Mumbai
Decided on: Jan-18-1927
Reported in: AIR1927Bom499; (1927)29BOMLR1031; 103Ind.Cas.637
Amberson Marten, C.J.1. This is a preliminary question as to what security for costs should be paid by the appellant who resides out of British India in respect of an appeal from the refusal of the lower Court to revoke an order for delivery of property under Chapter II of Regulation VIII of 1827. The sums involved are substantial. Under the ruling in the office the appellant has been found liable to pay in this Court a sum of Rs. 32. His opponent claims that he ought to find security for Rs. 1,264.2. The question depends on the true construction of the Bombay Pleaders Act 1920, which is a Bombay Act, taken in connection with the Indian Succession Act 1925, which is an Imperial Act, and the General Clauses Act 1897, Section 8, which is another Imperial Act. Under the Bombay Pleaders Act 1920 it is clear that any application under Regulation VIII of 1827 or under the Succession Certificate Act of 1889 would be governed by Rule V of Schedule III, and not by Rule I. In other words, the ap...
Vaman Pandu Patel Vs. Tikaram Dagdu
Court: Mumbai
Decided on: Jan-14-1927
Reported in: AIR1927Bom368; (1927)29BOMLR471
Amberson Marten, Kt., C.J.1. On the findings of the lower appellate Court we have to determine this appeal on the basis that the plaintiff was the true owner of the property, and that Taniram was merely a trustee for him.2. It is contended that under Section 41 of the Transfer of Property Act the plaintiff is prevented from avoiding the auction sale held in pursuance of a decree of 1918 against Taniram, which sale was confirmed on April 22, 1920, and a sale certificate granted to the defendant on January 29, 1921. Meanwhile on April 30, 1920, the plaintiff with the consent of Taniram had effected an alteration in the Record of Eights by getting the plaintiff's name inserted in place of Taniram.3. But as pointed out in Mulla's Civil Procedure Code, 8th Edn., at p. 720, under Order XXI, Rule 94, 'What passes to a purchaser at a Court sale is the 'right, title and interest, of the judgment-debtor, whatever that interest may be.' Further, the transfer is not made by the judgment-debtor him...
Nensukhgavri Vs. Rajabally Mulla Abdul Kadar
Court: Mumbai
Decided on: Jan-11-1927
Reported in: AIR1927Bom405; (1927)29BOMLR689
Mirza, J.1. [His Lordship after stating the facts of the case as above continued :] This is a chamber summons taken out by the plaintiff in Suit No. 613 of 1925 for an order that the receiver appointed in Suit No. 440 of 1925 do pay to the plaintiffs the sum of Rs. 23,406-3-0 and costs of the suit when taxed and further interest on judgment till payment out of the funds in the hands of the receiver belonging to the partnership firm of Mulla Abdulla Kadar Mulla Ebrahim Kachwalla in priority to the claims of the other creditors of the said partnership firm and for costs of the summons.2. It appears that the charging order in favour of the plaintiffs is prior in date to the other charging orders obtained herein. In the course of these proceedings the plaintiffs, after they had proved their claim before the Commissioner, seem to have acted on the assumption that in respect of their claim they were entitled to rank pro rata only along with the other creditors of the partnership. The change ...
The Japan Cotton Trading Co., Ltd. Vs. the Universal Fire and C. Insur ...
Court: Mumbai
Decided on: Jan-11-1927
Reported in: AIR1927Bom420; (1927)29BOMLR686; 103Ind.Cas.452
Mirza, J.1. This is an informal application made on behalf of the Sheriff for his poundage in respect of certain execution proceedings. The defendants against whom the order is sought have appeared and contested it. A practice has grown up in this Court for the Deputy Sheriff to consult the Chamber Judge and obtain his directions in matters relating to his office. I am not in favour of this informal manner of obtaining orders and directions from the Chamber Judge where there is a serious contest and substantial rights are involved. Where as the result of a levy of execution certain property or moneys have come into the hands of the Sheriff the party aggrieved by it may on a summons ask for a relief against the Sheriff in respect of such levy, but where the property or moneys have not reached the hands of the Sheriff, and the Sheriff claims his poundage in respect of the attachment from the parties personally I am of opinion it is a matter fit for a suit rather than for informal directi...
Nilkant Balwant Natu Vs. Shri Sachidanand Vidya Narsimha Bharati
Court: Mumbai
Decided on: Jan-07-1927
Reported in: AIR1927Bom217; (1927)29BOMLR352; 101Ind.Cas.555
Fawcett, J.1. I have had the advantage of reading my learned brother's judgment, but I regret that I do not see my way to agree with his conclusion, nor with his opinion that the provisions of Rule 7 are as directory after the amendment of the rule by Act XXVI of 1920, as they were before the Act was passed.2. The insertion of the words 'or such further period' etc. show that the legislature's attention had been drawn to the question of extension of time by the Court, and they put a definite time-limit on any such extension in the first of the two alternative cases provided for by the rule, and give no corresponding power to extend time in the second of those two cases. I can hardly conceive of a case to which the maxim 'Expressio unius est exclusio alterius' should more obviously apply. The question arises regarding two consecutive sentences in an enactment, and it is not a case where there is any room for thinking that there may be a failure to make the 'expressio' complete by oversi...
Akkava Ramchandrappa Yadav Vs. Sayadkhan Muthekhan Mulgund
Court: Mumbai
Decided on: Jan-07-1927
Reported in: AIR1927Bom620; (1927)29BOMLR386
Amberson Marten, C.J.1. On August 14, 1911, the plaintiff Akkawa and her daughter-in-law Tulsawa sold the suit property to one Hayatkhan for Rs. 1,300. That is Exhibit 45. At that time Tulsawa, as the widow of the plaintiff's son Bhimaji, was the immediate owner of the property, and the plaintiff was the nearest reversioner. In the following year Tulsawa remarried and thereupon the plaintiff Akkawa succeeded to the property. In 1921 the plaintiff sued to recover the suit property from Hayatkhan's heirs in suit No. 472 of 1921. She obtained a decree, but in execution she was resisted by Hayatkhan's brother Sayadkhan, with the result that this present suit was instituted on December 13, 1922, against Sayadkhan.2. It has been held by both Courts below that there was no legal necessity for the sale in 1911. Some attempt was made to challenge that finding before us, but we think the concurrent findings of both Courts must be upheld. It is not sufficient to show that possibly the onus of pro...
Akkawa Ramchandrappa Yadav Vs. Sayadkhan Muthekhan Mulgund
Court: Mumbai
Decided on: Jan-07-1927
Reported in: 102Ind.Cas.232
Amberson Marten, C.J.1. The solution to the question submitted to us will, in my judgment, be found in the Privy Council decision of Rangasami Gounden v. Nachiappa Gounden 50 Ind. Cas. 498 : 46 I.A. 72 : 21 Bom. L R 640 : 36 M.L.J. 493 : 17 A.L.J. 536 : 29 C.L.J. 539 : 23 C.W.N. 777; (1919) M.W.N. 262 : 42 M 523 : 26 M.L.T. 5 : After summarising at page 84 page of 46 I.A.-[Ed.] the two main grounds on which an alienation by a Hindu widow may be upheld, and after dealing next with the question of estoppel which, in that particular case, their Lordships held did not arise as the plaintiff never consented to the deed, nor was his claim traced through any consenting party, their Lordships dealt with yet a fourth branch under which transactions may be upheld. Put shortly that branch amounts to an election by a reversioner to treat the transaction as good. Their Lordships point out at pages 86-87page of 46 I.A.-[Ed.] that that can be done either after the reversion has fallen into possession...
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