Mumbai Court December 1928 Judgments
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Keshavrao Vasantrao Vijaykar Vs. Nanabhai Sadanand
Court: Mumbai
Decided on: Dec-17-1928
Reported in: (1929)31BOMLR696
John Wallis, J.1. This case under appeal raised a question of some difficulty with regard to the practice as to decrees in foreclosure suits filed in the High Court of Judicature at Bombay in its ordinary original civil jurisdiction. That original jurisdiction was inherited from the Supreme Court which in the exercise of the equitable jurisdiction conferred upon it by its charter presumably followed the chancery practice in foreclosure suits in England. Under that practice, though the decree is absolute in form and directs the property to be foreclosed on failure to pay on or before the day fixed in the decree, a further application is necessary in order to bar finally the mortgagor's right to redeem. In 1859 the Civil Procedure Code was enacted, and in 1861 by the High Courts Act, 1861, and the letters patent issued pursuant thereto, the original jurisdiction of the Supreme Court was transferred to the new High Court. It is not suggested that there were any rules dealing with this mat...
Hariram Serowagee Vs. Madan Gopal Bagla
Court: Mumbai
Decided on: Dec-17-1928
Reported in: (1929)31BOMLR710
Viscount Sumner, J.1. The appellant claimed certain sums held at her death by Brijcomari, the widow of a banker and moneylender in Calcutta, Rangoon and elsewhere, named Bhagwandas Bagla, who was an Agarwalla Jain. He is the only son and youngest child of Mahadevi, deceased, a grand-daughter of Bhagwandas and Brijcomari, and the respondents are the surviving executor and the residuary legatee under Brijcomari's will. It is undisputed that, under the Mitakshara law as modified by the customs and usages of the Agarwalla community relating to stridhan, the plaintiff is now entitled to whatever belonged to his mother Mahadevi during her lifetime. Originally the action was brought for an account, but at the trial this was abandoned and the plaintiff elected to rely only on his claim for sundry specific items, The defendants subsequently agreed to this course being taken, relinquishing also any claim to any set-off or account on their side. For several of the relevant, years Brijcomari's boo...
The Union Bank of Bijapur Vs. Bhimrao Shrinivasrao Jorapur
Court: Mumbai
Decided on: Dec-14-1928
Reported in: (1929)31BOMLR463
Amberson Marten, Kt., C.J.1. In this case, the applicant, the defendant bank, claimed to be secured creditors of one Nenchand Rayachand, now an insolvent, by reason of certain provisions in the articles of association of the bank, For instance, Article 14 provides: 'The company shall have a first and paramount lien upon all the shares of any member for all moneys from time to time due or payable to the company from him alone, or jointly with any other person or persons'. It was also given power to sell the shares to satisfy the lien, then, there are other articles! such Sections 141 and 142, which allowed the company to deduct any money due to it from the shareholder out of any dividend or bonus payable to the shareholder.2. Stopping there for a moment, we thinly it clear that the lien given by Article 14 is not confined to the corpus of the shares, but covers as well the produce of the shares, viz., the dividends. Therefore, to that extent, we cannot agree with the judgment of the lea...
B.B. and C.i. Railway Vs. Mahmadbhai Rahimbhai
Court: Mumbai
Decided on: Dec-14-1928
Reported in: (1929)31BOMLR616
Amberson Marten, Kt., C.J.1. The plaintiff trader in this came having to send certain oranges over the G.I.P., and B.B. & C.I., Railways to Ahmedabad paid a special rate in order to ensure them being sent by a passenger or by a parcel train. The goods came over the G.I.P. Railway, and reached Surat on the B.B. & C.I. Railway. There the waggon containing the plaintiff's goods was detached, and was forwarded not by a parcel train, but by a goods train, and that goods train arrived at Ahmedabad, the final destination, some fourteen hours after the time at which the nest parcel train would have arrived. Further, if the company had forwarded the goods from Surat by the nest passenger train, then they would have arrived even earlier than by the next parcel train. The railway company rely in their defence on the risk note in form 'H,' and say they are thereby protected because there was no wilful neglect on their part.2. Now, the learned Judge has taken the view that in forwarding these goods...
Lewis Pugh Evans Pugh Vs. Ashutosh Sen
Court: Mumbai
Decided on: Dec-14-1928
Reported in: (1929)31BOMLR702
Warrington, J.1. The action in which the present appeal arises was, so far as is material to the appeal, an action of trover, the plaintiffs claiming damages for the conversion by the defendants of specific movable property, viz., coal wrongfully gotten from the plaintiffs' mines and sold or otherwise disposed of by the defendants to their own use.2. The appeal is by one defendant only-the defendant Pugh- and he raises two points of law: (1) that the claim in respect of his own personal working is barred by the Statute of Limitation, and (2) that, as to workings by his lessees, he has wrongly been held to be jointly liable with them, whereas in this respect the plaintiffs' suit ought to have been dismissed as against him.3. The plaintiffs' claim alleged fraud as against all the defendants, but this issue was found against the plaintiff's by the trial Judge, and this finding is not questioned now.4. On the first of the two points of law referred to above, the trial Judge decided against...
Mahomed Ali Mamoojee Vs. William Stansfield Grosvenor Harvey
Court: Mumbai
Decided on: Dec-13-1928
Reported in: (1929)31BOMLR700
Viscount Sumner, J.1. In view of the concurrent findings of both Courts in India, upon evidence on which such findings were competent, it became necessary for the appellant to establish such errors in law as would justify his appeal. The objection which had been taken to the admissibility of any parol evidence as to the liability of these parties inter se, on the ground that it varied or contradicted the terms of the hoondies, was argued below and dismissed with a full statement of the Judges' reasons, Before their Lordships, though mentioned, it was not pressed, and it calls for no discussion now. It was also suggested that the agreement as to the security to be given was framed in such indefinite terms as to be incapable of amounting to a condition precedent. This suggestion is not easy to appreciate. It appears to be only an alternative form of the main contention, that the agreement as to this matter was no more than a term, the breach of which sounded in damages and in the circums...
Bhikaji Raghunath Varerkar Vs. Anant Laxman Khandalekar
Court: Mumbai
Decided on: Dec-13-1928
Reported in: (1929)31BOMLR613
Marten, C.J.1. In permitting the plaintiff to withdraw this suit with liberty to bring a fresh one, notwithstanding that the trial had been going on for several days, and the evidence concluded and the case fixed for final argument, I would hold that the learned Judge misdirected himself as to the principles which should have guided him in exercising his discretion. The fourth paragraph of his judgment sets out the principle which he thinks should be adopted. It is in effect that if a plaintiff finds at the trial that he may fail because his evidence is scanty, he should be given another chance of bringing another suit to supplement his scanty evidence. That principle is not the law of this land, If it were, it would doubtless lead to a great deal of perjury and to a vast increase of litigation and hardship on innocent litigants. That being so, it is open to us to revise the discretion which the learned Judge exercised.2. Doing that, it appears that the only ground on which the trial a...
Anandsing Suratsing Vs. Lakhesing Pratapsing
Court: Mumbai
Decided on: Dec-12-1928
Reported in: (1929)31BOMLR430
Murphy, J.1. The plaintiff sued to recover Rs. 279 as rent due on a lease executed by the defendant on April 29, 1921. The defendant contended that, though he had executed the lease, it had been obtained from him fraudulently, and that he was not liable for the amount claimed by the plaintiff.2. The learned Subordinate Judge held that the plaintiff had proved the lease, and ordered the defendant to pay the plaintiff the amount claimed and costs, and further interest at sis per cent, per annum on Rs. 225 from the date of the suit until payment, by annual instalments of Rs. 75 each, to be paid from January 1928. The point taken in this revision application is that the defendant in the suit had, in fact, pleaded that he had been induced to execute the lease by fraud, and the principal piece of evidence he relied on to prove the fraud was that the two survey numbers which he is said to have leased were actually his own property, and it was argued that if he had been allowed to show that th...
Anant Govind Jog Vs. Tukaram Kushaba Shinde
Court: Mumbai
Decided on: Dec-12-1928
Reported in: (1929)31BOMLR442
Patkar, J.1. This is a second appeal in execution of a decree obtained against one Kushaba and his son Vishnu. The decree is sought to be executed against Tukaram, another son of Kushaba, who is brought on the record as the legal representative of his brother and father. Tukaram being an agriculturist and the property not being specifically mortgaged, it could not be sold under Section 22 of the Dekkhan Agriculturists' Relief Act, and the decree-holder sought to execute the decree by attachment of the rent of the land due from the tenant and from other moveable property of Tukaram.2. The learned Subordinate Judge held that the debt incurred by defendant No. 3's father was not tainted with illegality of immorality, that the land, the rent of which was sought to be.attached, was the self-acquired property of the father Kushaba, and that, though the decree could not be executed against the land as it was not specifically mortgaged, the decree-holder could proceed against the rent due from...
Fakirji Ardeshir Lavri Vs. Bhagvatlal Tricamlal Dave
Court: Mumbai
Decided on: Dec-12-1928
Reported in: (1929)31BOMLR493
Patkar, J.1. The plaint property originally belonged to one Mahomad Isaq who sold it to one Tribjhovan Sakhidas for Rs. 5,600 on April 9, 1869. Tribhovan in his turn sold the property to one Ardeshar Naaarwanji, the father of defendant No. 1, on July 17, 1872, for Rs. 2,275, and on that very day Ardeghar passed a document, Exhibit A, to the sons of the original owner to Mahomad, agreeing to reconvey the property to them or their Bimovatlai. heirs, executors or representatives on payment of Rs. 2,200 within fifty-one years. Ardeshar Nasarwanji gifted the property to his son defendant No. 3 on December 6, 1899. The interest of the sons of Mahomad, the original owner, under the document Exhibit A, was assigned to the plaintiff on October 10, 1921, who brought a suit to enforce the document, Exhibit A. The heirs of Ali and Abhram, the eons of Mahomad, were joined as co plaintiffs. Defendant No. 1 sold the property to defendant No. 3 on May 7, 1919. The plaintiff', finding that defendant No...
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