Court : Mumbai
Reported in : (1930)32BOMLR515
John Wallis, J. 1. [After dealing with points not material to this report the judgment proceeded: ] As regards the question of res judicata the final judgment of the High Court does not deal in any way with the question whether the defendant's tenure was a jagir nor does the judgment of the Deputy Commissioner at the trial. On appeal the Judicial Commissioner no doubt referred at the beginning of his judgment to the suit land as the defendant's jagir, but he also stated that the only point at issue was as to the rate of rent, and the High Court dealt with the ease in the same way. In these circumstances it appears to their Lordships that there was no final decision within the meaning of Section 11 of the Code of Civil Procedure of the issue whether the defendant's estate was a jagir, if indeed it can be said to have arisen in the case. [The rest of the judgment is not material.]2. In the result their Lordships have come to the conclusion from the reasons already stated that the appeal ...
Tag this Judgment!Court : Mumbai
Reported in : AIR1930Bom160
Patkar, J.1. In this case the accused was tried on charges under Sections 108, 109, and 121, Railways Act, and convicted under Sections 108 and 121, and sentenced to pay a fine of Rs. 25, in default simple imprisonment for one month, for, each offence. With regard, to the offence under Section 109, the learned Magistrate found that it was not sufficiently proved that the accused entered the compartment after it contained the maximum number of passengers, and therefore acquitted the accused under Section 258, Criminal P.C.2. With regard to the offence under Section 108, Railways Act, the learned Magistrate, relying on the case in Ishwar Das Varshni v. Emperor A.I.R. 1922 Pat. 8 held that the accused pulled the chain for sufficient and reasonable cause for removing the overcrowding. The finding of the Magistrate is that there were forty-five passengers, whereas the utmost capacity allowed by law was for thirty passengers. Under Section 63, Railways Act, it is the duty of the railway admi...
Tag this Judgment!Court : Mumbai
Reported in : AIR1930Bom157
K. Kemp, J.1. In the course of the evidence for the Crown, a question has arisen as to whether the prosecution is entitled to prove not only that accused Nos. 2, 3, 4, 5, 6, 7 and 9 were closely and intimately associated with the approver Haji Sirajuddin but that the object of that association during a period of several months prior to the dacoity in question had been the commission of thefts and other discreditable acts. The mere fact that the evidence adduced would tend to show the commission of crimes other than that charged does not of course render it inadmissible, if it is in fact otherwise relevant to any issue properly before the Court. But having regard to the prejudice which must inevitably be introduced by such evidence, especially in a jury trial, I think the Court should be careful to see that its relevancy is clearly made out. The accused above referred to are not in this case charged with belonging to any gang but are charged with committing, or conspiring to commit, a p...
Tag this Judgment!Court : Mumbai
Reported in : AIR1930Bom158
K. Kemp, J.1. Mr. Velinker tenders, in corroboration of the evidence of a certain witness for the prosecution, oral evidence of what that witness had said on the occasion of an identification parade hold by the police in the course of the investigation. The previous statement relied on is recorded in a Panchnama written on that occasion in the presence of a competent police-officer. It is objected that evidence, whether oral or written, of that statement is not admissible. The position is that a witness may, under Section 157 of the Indian Evidence Act, be corroborated by proof of any former statement made by him at or about the time when the fact deposed to took place or before any authority legally competent to investigate the fact. Here there is no question of the first alternative but the statement objected to was certainly made before an authority legally competent to investigate. The power to investigate, however, would ordinarily rest on the powers conferred on the police by Cha...
Tag this Judgment!Court : Mumbai
Reported in : (1930)32BOMLR361
Viscount Dunedin, J. 1. The respondents in this case, are the Bombay Trust Corporation, Limited, who are a company having their office in Bombay. A company called the Hongkong Trust Corporation, incorporated in Hongkong (hereinafter called the Hongkong company), lent money, from time to time, on deposit to the respondents at the rate of five and a quarter per cent, and the respondents duly paid interest at that rate on the money deposited. The Senior Income-tax Officer duly served a notice on the respondents in terms of Section 43 of the. Indian Income-tax Act, 1922, that he intended to treat them as agents of the Hongkong company, and after hearing the respondents as to liability, he assessed them to income-tax and super-tax as agents of the Hongkong company in respect of the amount of interest in the year of charge. The respondents appealed to the Commissioner under Section 30 of the Act contending that they were not liable to be so assessed, and also raising questions as to amount. ...
Tag this Judgment!Court : Mumbai
Reported in : AIR1930Bom225; (1930)32BOMLR300
Murphy, J.1. The facts underlying this letters patent appeal are set out in 30 Bom. L.R. 1149, a decision to which I was a party, and which was made on July 3, 1928.2. The respondent had sold the appellant survey No. 108, pot Nos. (1) and (2) of Usmanpur, in the south Dascroi Taluka of the Ahmedabad District, for Rs. 19,000. The title conveyed by the respondent was clouded and litigation ensued between the parties to the transaction. The original Court refused to set the sale aside, but put the parties to terms, the principal ones being that the respondent should return Rs. 1,000 of the price, and execute a conveyance in appellant's favour containing certain indemnity clauses, the conveyance to be executed within two months of the decree, which was made on October 24, 1924. Execution proceedings under this decree were initiated on December 2, 1924. While they were still pending and after Rs. 1,000 and the sum due for costs had been paid into Court and received by the appellant, as to t...
Tag this Judgment!Court : Mumbai
Reported in : AIR1930Bom445; (1930)32BOMLR406
Amberson Marten, Kt., C.J.1. Yesterday we delivered judgment in appeal No. 57 of 1928 (Suit No. 266 of 1928) between the same parties. Our judgments in that appeal may be referred to for the general position between these two brothers who are engaged in this complicated litigation. It also exemplifies that they are each carrying on business as sole proprietor in Bombay, Calcutta, Cawnpore and Lahore.2. This present appeal is is another suit No. 798 of 1928 from an order made by Sir Norman Kemp on January 29, 1929, directing that this suit be stayed, and ordering that the plaintiff be at liberty to file a fresh suit in Calcutta or Cawnpore or at both places. It was further ordered that the plaintiff do pay to the defendants their costs of the suit. That order was founded substantially on the ground that the suit was vexatious and oppressive and an abuse of the process of the Court. The learned Judge also doubted whether this Court had any jurisdiction to hear it at all.3. What the plain...
Tag this Judgment!Court : Mumbai
Reported in : (1930)32BOMLR511
Binod Mitter, J.1. The appellants alleged that E. Muniandy Servai (hereinafter referred to as the testator) executed a will dated January 22, 1906, by which he appointed the appellant Vellasawmy Servai and one S. Muniandi Servai as executors to the will. The testator died on February 16, 1924. He deposited this will personally in the Registration Office in Rangoon on the very day that it was executed, and it remained there until it was produced by the Registrar in this case. The District Judge held this will to have been duly proved, and although the High Court in its judgment threw doubts on its genuineness, the respondent before the Board did not seriously dispute its validity. Their Lordships agree with the District Judge and hold that this will was duly executed.2. The respondent alleged that the testator duly executed another will dated January 23, 1924. The main question involved in this appeal is whether this will was duly executed by the testator. The respondent on August 7, 19...
Tag this Judgment!Court : Mumbai
Reported in : AIR1930Bom444; (1930)32BOMLR404
Amberson Marten, Kt., C.J.1. [On the question of interest his Lordship said:] Lastly, I come to the points urged in the plaintiff's appeal, viz., the question of interest and costs. On my above findings it follows that there was no conduct here by the plaintiff, apart possibly from his unhappy pleadings, on which one could fairly hold that he should be deprived of interest or of costs. On the other hand, speaking for myself, I am not prepared on the materials before me in the present case to accept the learned Advocate General's argument that this being a mercantile transaction we i must take judicial notice of the alleged fact that in Bombay goods sold and delivered invariably carry interest, at any rate as between merchants. For one thing mercantile usage is not pleaded, much less proved. In any case, these parties have been carrying on business in four different places; a part of the goods were delivered in Calcutta; and there is no mention of interest in their books. As regards the...
Tag this Judgment!Court : Mumbai
Reported in : AIR1930Bom572; (1930)32BOMLR232
Amberson Marten, Kt., C.J.1. This is an appeal by Govind Narayaii Kakade, respondent No. 5, against the decree of the learned District Judge of Sholapur finding him liable for misfeasance or breach of trust as a director in the sum of Rs. 12,000 jointly with respondents Nos, 1, 2, 3 and 4 on an application made by the petitioner as liquidator of the Sholapur Bank, Limited, under Section 235 of the Indian Companies Act '1913.2. The main defences are that the appellant not having been guilty of any wilful neglect or default is protected by the articles of association of the bank from this claim : or alternatively, that he has acted honestly and reasonably and ought fairly to be excused under Section 281 of the Indian Companies Act. Another main ground of defence is that in any event the claim against the appellant is barred by limitation.3. The history of the bank and the main facts of the case have been set out in the judgment of my brother Patkar which I have had the advantage of readi...
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