Mumbai Court November 1938 Judgments
Shidaya Kantlaya Hiremath Vs. Basaprabhappa Shivlingappa Hampannavar
Court: Mumbai
Decided on: Nov-30-1938
Reported in: AIR1939Bom301; (1939)41BOMLR441
John Beaumont, Kt., C.J.1. This is an appeal by defendant No. 4 against a decision of the First Class Subordinate Judge of Belgaum. The plaintiff was suing to enforce a mortgage for securing the sum of Rs. 9,200 dated August 13, 1928, executed in his favour by defendant No. 1 purporting to act for himself and as guardian of defendant No. 4, though he was not such guardian. The defence was that the mortgage was not binding on any of the defendants other than defendant No. 1 because it was not for legal necessity or for the benefit of the estate. The learned Judge held that the mortgage was binding on all the defendants.2. Defendant No., 1 was the manager of the joint family which comprised defendants Nos. 2 and 3, who were his sons, and defendant No. 4, who was the son of a deceased brother of defendant No. 1. The contention of defendant No. 4 in this appeal is that the mortgage in suit was procured in order to pay off antecedent debts of defendant No. 1 and that those antecedent debts ...
Tag this Judgment!Ram Kinkar Banerjee Vs. Satya Charan Srimani
Court: Mumbai
Decided on: Nov-29-1938
Reported in: (1939)41BOMLR672
Porter, J.1. In this case the original plaintiff has died since the institution of the suit, and his interests are now represented by one Sreemati Saibalini Devi and others. Hereafter they will be referred to as the appellants.2. There were originally a large number of defendants, but three only are made respondents to this appeal and their interests alone remain to be considered.3. The others have either accepted the judgments given against them or have been dismissed from the case. The three remaining are Kripa Sankar Worah and Jatha Shankar Dosa, numbered 2 and 3 in the cases presented by the parties, and Satya Charan Srimani, respondent No. 1 in those cases.4. The facts may be briefly stated. The appellants are the successors in title to the grantees of a patta or lease for 999 years dated May 26, 1908, in respect of certain underground rights in the District of Burdwan. This lease contained provisions (inter alia) for (a) the payment by the grantees to the grantors of all cesses l...
Tag this Judgment!Nathjibhai Harjiwan Pandya Vs. Shankarlal Nathjibhai Bhatt
Court: Mumbai
Decided on: Nov-23-1938
Reported in: AIR1939Bom287; (1939)41BOMLR425
Lokur, J.1. The point in dispute in this appeal is simple. The plaintiff is a member of the Dakor Travadi Mevada caste, and the community having passed a resolution excommunicating him, he filed this suit for a declaration that the said resolution was improper and illegal and that he, as a member of the said community, was entitled to use or enjoy in common the moveable as well as immoveable properties of the community as a co-owner and for a permanent injunction against the defendants, representing the community, restraining them from obstructing him in his enjoyment of the said properties as a co-owner.2. On the contention of the defendants a preliminary issue, whether the Second Class Subordinate Judge of Umreth had jurisdiction to try the suit, was framed, and the trial Court held that as the value of the properties of the panch in respect of which a permanent injunction was claimed was worth more than Rs. 5,000, it had no jurisdiction to try the suit and ordered the plaint to be r...
Tag this Judgment!Balkrishna Aba Patil Vs. Gaja Jaitya
Court: Mumbai
Decided on: Nov-23-1938
Reported in: (1939)41BOMLR422
Lokur, J.1. The property in suit belonged to the defendant and was sold by him to one Mukund Patil under exhibit 26 for Rs. 99 on August 15, 1913. The defendant, however, remained in possession as his tenant. Mukund sold the property to plaintiff No. 1, on June 2, 1917, by the sale-deed, exhibit 23. The defendant continued in possession, thereafter, as the plaintiff's tenant. In 1919 plaintiff No. 1 filed suit No. 91 of 1919 against the defendant asking for a declaration that he was the owner of the property, for its possession and for arrears of rent and mesne profits. A decree was passed in that suit on September 12, 1919, awarding possession of the property to plaintiff No. 1, together with past and future mesne profits. Even after the decree the defendant was allowed to continue on the land as the plaintiff's tenant. The plaintiffs filed the present suit for a declaration that they were the owners of the said property and to recover its possession from the defendant, together with ...
Tag this Judgment!Sadashiv Govind Arekar Vs. Yeshvant Bhikaji Vilankar
Court: Mumbai
Decided on: Nov-23-1938
Reported in: AIR1939Bom249; (1939)41BOMLR460
Lokur, J.1. This appeal arises out of an interpleader suit filed by the plaintiff to have it decided whether defendant No. 1 or defendant No. 2 is entitled to recover the property in suit from him. According to the plaintiff, defendant No. 2 was the owner of the property and he had taken it on an oral kase from him on November 1, 1927, at a monthly rent. He says that he was paying the rent to defendant No. 2 all along ; but on July 23, 1935, was served with a notice by defendant No. 1 that he should! pay the rent to him. Defendant No. 2 also served him with a notice on July 11, 1935 asking him not to pay any rent to defendant No. 1 if demanded by him. In these circumstances the plaintiff filed this suit to have it decided as to who was entitled to the rent and the property. The trial Court held that such a suit was barred under Order XXXV, Rule 5, of the Civil Procedure Code, 1908, as defendant No. 1 did not make a claim to the land through defendant No. 2 who was admittedly the landlo...
Tag this Judgment!Emperor Vs. Dadu Rama Surde
Court: Mumbai
Decided on: Nov-22-1938
Reported in: AIR1939Bom150; (1939)41BOMLR282
John Beaumont, Kt., C.J.1. This is a reference made by the Sessions Judge of Belgaum asking us to set aside an order made by the First Class Magistrate of Athni forbidding Mr. Joshi, the applicant, to appear as a pleader for the defence in two prosecutions, which were proceeding before the learned Magistrate, and in which the prosecution proposed to call Mr. Joshi as a witness. The question whether the Court has jurisdiction to forbid an advocate to appear in a particular case involves the consideration of conflicting principles. On the one hand, an accused person is entitled to select the advocate whom he desires to appear for him, and certainly the prosecution cannot fetter that choice merely by serving a subpoena on the advocate to appear as a witness. On the other hand, the Court is bound to see that the due administration of justice is not in any way embarrassed. Generally if an advocate is called as a witness by the other side, it can safely be left to the good sense of the advoc...
Tag this Judgment!Lakshmibai Madhusudan Patil Vs. Shantaram Narayan Patil
Court: Mumbai
Decided on: Nov-22-1938
Reported in: AIR1939Bom206; (1939)41BOMLR420
Lokur, J1. The appellant obtained a compromise decree against her husband's brothers in suit No. 290 of 1932 which provided that she should be paid Rs. 2,100 in lump for arrears of maintenance and the right of residence up to November 30, 1933, and for the costs of the suit, and that she should be paid future maintenance at the rate of Rs. 50 per month from December 1, 1933. A charge in respect of the amount due to her was kept on certain immoveable property described in the decree. The decree provided:If the defendants fail to pay at the proper time the amounts which they have to pay to the. plaintiff, the plaintiff is to, recover and do recover the same, through Court, from the immoveable property of the joint family or from the said charged property according to her choice.2. A sum of Rs. 514-8-0 having fallen due under the decree, the appellant presented this darkhast to recover it by the attachment and sale of the respondents' moveable property. The executing Court dismissed the d...
Tag this Judgment!Jivanrao Anandrao Deshpande Vs. Vishnu Rangnath Kalawade
Court: Mumbai
Decided on: Nov-22-1938
Reported in: AIR1939Bom207; (1939)41BOMLR458
Lokur, J.1. At Kasbe Mirajgaon in the District of Ahmednagar there is a devasthan of Shri Gopal Krishna Maharaj belonging to the family of the respondent. The respondent Vishnu had two brothers, Maharudra and Ramkrishna. Ramkrishna filed suit No. 271 of 1881 in the Court of the First Class Subordinate Judge of Poona for a partition of the family property, and the decree in that suit provided that the property endowed to the deity and its management were vested in the family, that their vahiwatdars were not competent to alienate it in any way and that the vahiwat should be made by the three brothers by annual turns. Maharudra died in 1889 when it was his turn to make the vahiwat and after his death his widow Prayagbai was in vahiwat during his turn. She died without any male issue and the appellant, who is the son of her daughter, is her heir. When his turn of vahiwat came, he filed this darkhast to execute the partition decree against the respondent and claimed the right of vahiwat. Th...
Tag this Judgment!Narayan Dattatraya Kulkarni Vs. Murlidhar Punamchand Marwadi
Court: Mumbai
Decided on: Nov-21-1938
Reported in: AIR1939Bom255; (1939)41BOMLR417
Lokur, J.1. The facts of the case, so far as this appeal is concerned, are simple. One Radhakison Chunilal Marwadi, the father of respondents Nos. 6, 7 and 8, obtained an award decree against the appellants for the recovery of Rs. 5,455-2-0. The amount was made payable by instalments and in case of default the decree-holder was to make an application to the Court under Section 15B of the Dekkhan Agriculturists' Relief Act. After the death of Radhakison his heirs, including his sons, presented a darkhast for the execution of the decree, and for recovering the decretal amount by the sale of the mortgaged property under Section 15B of the Act. After the papers were sent to the Collector, the darkhastdar gave an application on August 1, 1933, that the darkhast should be struck off. It was granted on the same day, and pending the return of the papers from the Collector, the appellants alleged that there had been an adjustment of the decree and that respondent No. 5 Ramgopal Putiamchand had ...
Tag this Judgment!The Commissioner of Income-tax Vs. S.L. Mathias
Court: Mumbai
Decided on: Nov-18-1938
Reported in: (1939)41BOMLR157
George Rankin, J.1. This appeal is brought by the Commissioner of Income-tax, Madras, from a judgment of the High Court at Madras upon a reference made under the provisions of Section 66 of the Indian Income-tax Act, 1922. The year of assessment in respect of which the dispute arises is 1934-35, and the year of account or 'previous year' is that which ended on April 30, 1933. The assessee respondent resides at Mangalore in British India and owns coffee estates in the Mysore State, which is no part of British India. The Income-tax Officer at Mangalore assessed him to tax on a 'total income' of Rs. 29,160, of which Rs. 25,963 was computed as the assessee's profits of a 'business' of growing, curing and selling coffee for profit. By appeal to the Assistant Commissioner, the assessee disputed his liability in respect of any part of the sum of Rs. 25,963, and on his appeal being dismissed required the Commissioner to make a reference to the High Court. An agreed question having been stated ...
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