Court : Mumbai
Reported in : AIR1937Bom465; (1937)39BOMLR851
John Beaumont, Kt., C.J.1. This is an appeal by the plaintiff against a decision of Secretary the First Class Subordinate Judge of Bijapur. The plaintiff in the suit claims of to be the watandar of certain immovable properties described in Schedules A, B and C, and of a cash allowance described in Schedule D to the plaint, and he asks for a declaration that an order of Government of August 16, 1928, resuming possession of those properties was illegal and ultra vires, and for consequential relief.2. The question admittedly turns on the construction of a sanad granted by Government on February 8, 1872; but in order to construe that sanad it is necessary to know the circumstances which existed at the date when it was granted. The learned Judge in the Court below dealt with the history of the plaintiff's claim in much detail, and we have been referred to a large number of documents on the record. But in my opinion it is not necessary to discuss the earlier history of the plaintiff's claim ...
Tag this Judgment!Court : Mumbai
Reported in : (1937)39BOMLR744
Thankerton, J.1. Counsel for the appellant in this case submits two questions for consideration by their Lordships.2. The first question raises a point as to the competency of the appeal taken to the High Court from the order of Mr. Justice Cunliffe. Prima facie there is good reason for that point, because, the period of limitation provided by Article 151 being twenty days for appealing against the order, a period of one hundred and twenty-four days in fact elapsed before the appeal was taken.3. The contesting respondent's reply in excuse of his action was to say that, as provided by the terms of Section 12, Sub-section (2), of the Indian Limitation Act, a portion of the one hundred and twenty-four days, the deduction of which would leave less than twenty days, was accounted for by the period which elapsed before he could obtain a copy of the order against which he was going to appeal. The learned Judges of the High Court have held that the respondent has succeeded upon that, and they ...
Tag this Judgment!Court : Mumbai
Reported in : (1937)39BOMLR748
George Rankin, J.1. This appeal arises out of a partition suit between members of a Bengali family governed by the Dayabhaga. The contest is between uncle and nephews-that is between the appellant Nutbehari, who was the first defendant in the suit, and the three respondents, sons of his deceased brother Haridas, viz., Nanilal (the plaintiff), Manmatha (second defendant) and Nagendra Nath (third defendant). These three brothers make common cause against Nutbehari. As McNair J. has noticed :-The real protagonists are Nutbehari and his nephew Manmatha Nath, who are 1937 admittedly contractors in a large way of business. Manmatha, although he is not the plaintiff, admits that he is financing the suit.2. The trial Judge (Subordinate Judge, 4th Court, 24 Parganas) dismissed the suit save as regards a small plot of land measuring about three bighas and four cottas, upon which the family had been living : this land, but not the house built thereon, he treated as joint property of the parties, ...
Tag this Judgment!Court : Mumbai
Reported in : (1937)39BOMLR720
Shadi Lal, J.1. On January 26, 1925, three sisters, who were the defendants in the action which has led to this appeal, executed in favour of the plaintiff a promissory note for Rs. 15,000. They agreed to pay him this sum, for the services rendered by him in the management of their joint estate, -with interest at the rate of one per cent, per mensem from the date of the note until the date of payment. No payment was, however, made to him, with the result that he commenced in January, 1928, the present action to recover Rs. 20,000, the principal and interest due on the document; and in the alternative he claimed that amount as remuneration for his services from March, 1920, to January, 1928.2. The first defendant, who was married to the plaintiff, did not contest the suit; but her two younger sisters denied the due execution of the promissory note by them, and raised other pleas to defeat the claim. On the issues, which arose on the pleadings, the trial Judge pronounced his judgment in ...
Tag this Judgment!Court : Mumbai
Reported in : AIR1938Bom18; (1937)39BOMLR1105
Divatia, J.1. This appeal involves a somewhat important point of law on which there does not seem to be any direct authority of our High Court The facts material to the point are shortly these:-The appellant-decree-holder obtained a money decree against his judgment-debtor and filed a darkhast to execute the decree. He had obtained an order for attachment before judgment and that attachment was continued in the execution proceedings. In the darkhast he asked for the recovery of the decretal amount by sale of some of the judgment-debtor's properties. Meanwhile the judgment-debtor had obtained a decree against a third person, and the appellant wishing to proceed first against that decree in favour of his judgment-debtor applied to the executing Court that the darkhast may be disposed of as he wished to realise his decretal amount by attachment and sale of the decree obtained by his judgment-debtor. Accordingly, the executing Court passed an order that the darkhast was disposed of. The ap...
Tag this Judgment!Court : Mumbai
Reported in : (1937)39BOMLR355
Wassoodew, J.1. In this case the four prisoners have been committed for trial on a charge under Section 304 of the Indian Penal Code. On reading the record and after hearing the Advocate General, I decided to alter the charge to one of murder as it was entirely within the province of the jury to decide from the nature and effect of the injury the question of the intention and knowledge of the prisoners. Upon the charge as framed by the committing Magistrate the prisoners are entitled to be tried by a common jury. The common jury which has been empanelled to try cases would ordinarily have tried the prisoners if the charge had not been altered, their case being one of the cases set down for trial by the said jury. Upon the alteration of the charge to one of murder the prisoners are entitled to be tried by a special jury.2. The learned Counsel who now appears on behalf of one of the prisoners has raised an objection to the alteration of the charge on the ground that the prisoners having ...
Tag this Judgment!Court : Mumbai
Reported in : (1937)39BOMLR761
Shadi Lal, J.1. The dispute in these two appeals relates to a Moslem shrine situated in the province of Sind, commonly known as the Durgah of Jhandawala Pir. It is common ground that Pir Rashidulla Shah was the last sajjadanashin (the person who sits on the sajjada or the carpet on which prayers are offered), or spiritual preceptor, of the Durgah, and also the mutawalli of the wakf property attached to it. He died in May, 1922, leaving five sons. The eldest of them, Ziauddin Shah, thereupon, claimed to be the successor of his father as sajjadanashin and mutawalli, and asked for the possession of the wakf property. His claim was resisted by the third son, Ahsanullah Shah, who advanced various grounds to defeat the plaintiff, and to support his own right to succeed the deceased Pir in both the offices. The Subordinate Judge dismissed the suit, but on appeal his view was overruled by the Court of the Judicial Commissioner, Sind, who decided the case in favour of the plaintiff.2. The defen...
Tag this Judgment!Court : Mumbai
Reported in : AIR1938Bom132; (1937)39BOMLR1282; 173Ind.Cas.891
Broomfield, J.1. This is an appeal by the plaintiff in a suit in which he claimed the property of his deceased brother which is in the possession of the defendant who claims to be the adopted son of that brother. The plaintiff denied the fact of the adoption and he also said that it was invalid on the ground that the parties who are goldsmiths by profession and call themselves 'Panchals' or 'Panchal Brahmins' belong to the 'twice-born' classes and therefore the adaption of the defendant was invalid because he was the son of the sister of his adoptive father. The adoption has been held by the trial Court to be proved in fact and to be valid in law. The question of fact is not disputed in the appeal. We are concerned only with the validity of the adoption.2. In Subrao Hambirrao v. Radha Hambirrao I.L.R. (1928) Bom. 497 : 30 Bom. L.R. 692. Mr. Justice Madgavkar accepted certain criteria which as he says in his judgment are recognised in the popular view as the proper method, of determinin...
Tag this Judgment!Court : Mumbai
Reported in : (1937)39BOMLR713
Shadi Lal, J.1. This consolidated appeal raises the question of the validity of the execution and the registration of a kabuliyat, under which the appellant, Sarat Chandra Basu, with other persons, obtained a lease of the coal mines in certain villages belonging to the respondent, the Maharaja of Burdwan. The suits, which have led to the appeal, were originally instituted by the lessor against the appellant and his co-lessees, but they were subsequently withdrawn as against the co-lessees, and proceeded to trial as against the appellant only. The claim was resisted by him on various pleas, mainly of a technical character but he was defeated in both the Courts in India. He has now appealed to His Majesty in Council, and their Lordships have, after examining the arguments presented on behalf of the parties, reached the conclusion that there is no valid ground for dissenting from the view taken by the Courts below.2. The kabuliyat, upon which the claim was founded, was executed on August ...
Tag this Judgment!Court : Mumbai
Reported in : AIR1937Bom446; (1937)39BOMLR846
John Beaumont, Kt., C.J.1. This is an appeal from a decision of the First Class Subordinate Judge of Ahmedabad. The plaintiff sues for partition of joint family property. One Hargovandas was the father of the plaintiff, of his brother defendant No. 1, and of one Manilal who died before the suit leaving defendants Nos. 2 to 4 his sons. The plaintiff's contention is that Hargovandas and his sons when living constituted a joint Hindu family, and he claims to be entitled to one-third of the joint family property. His claim that he is entitled to one-third of the joint family property is not disputed, but the question which arises on this appeal is whether a house described in the plaint as property 'B' is joint family property, or was separate property of Hargovandas in which case it was disposed of under his will, and the plaintiff takes no interest. The learned Judge held that the house was separate property of Hargovandas, and in this appeal the plaintiff contests that finding.2. The ho...
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