Mumbai Court September 1938 Judgments
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Janardan Govind Mahale Vs. Venkatesh Waman Shenvi
Court: Mumbai
Decided on: Sep-09-1938
Reported in: AIR1939Bom151; (1939)41BOMLR191
John Beaumont, Kt., C.J.1. This is a second appeal from the District Judge of Karwar. The plaintiff is suing for a certain property which forms part of survey No, 145, and his title is derived under a partition deed made in the year 1921, which is exhibit 35. The partition was between the predecessors of the plaintiff, and of defendant No. 1 and two other persons, and under it survey No. 145 was allotted to the plaintiff, and survey No. 143 was allotted to defendant No. 1. Both those survey numbers were described by reference to acreage and assessment, and it is not disputed that the suit property was comprised in survey No. 145 according to the acreage and assessment given in the partition deed. Therefore prima facie the plaintiff is entitled to succeed, but the defendant gave evidence the effect of which was to show that all parties to the partition deed in fact intended that the suit property should be included in survey No. 143, and that its inclusion in survey No. 145 was a mistak...
Ramsing Bhagiratha Navle Vs. Fakira Ramsing Navle
Court: Mumbai
Decided on: Sep-09-1938
Reported in: AIR1939Bom169; (1939)41BOMLR195
Wassoodew, J.1. This is a second appeal from the decision of the District Judge of Nasik. The suit was originally instituted by a Hindu minor through his next friend against his father defendant No. 1 and grandmother for partition of the joint family property. The parties are Beldars, that is, stonecutters. Their property, the subject-matter of the suit, consisted of two houses at Nasik and a third house at Poona, certain ornaments and donkeys used for carrying stone. Although at one time the nature of the property was disputed by the father who maintained that a greater part of it was his self-acquisition, there is no controversy in that respect in this appeal as the Courts below have held that it is the joint ancestral property of the parties, and that finding being one of fact is conclusive in second appeal. The mother and the step-mother were not impleaded at first. The former had merely acted as the plaintiff's next friend. Notwithstanding that defect the trial Court passed a decr...
Damodar Sukram Marwadi Vs. Kashinath Bhikaji Zende
Court: Mumbai
Decided on: Sep-08-1938
Reported in: AIR1939Bom212; (1939)41BOMLR473
Norman, J.1. The facts material to this second appeal are as follows.2. In 1918, three darkhasts based on money decrees were filed against two brothers, Bapuji Ramchandra and Bhikaji Ramchandra Patil, by (1) the Zendes, (2) Mategaonkar, and (3) Damodar, respectively. Out of these parties the Zendes had obtained attachment before judgment on the three suit survey numbers and some others and Damodar got an attachment in execution on the three suit survey numbers and one another. On March 22, 1919, the Zendes' darkhast was transferred to the Collector and the darkhasts of Mategaonkar and Damodar were kept pending with the Court for rateable distribution of assets. Eventually March 4, 1932, was fixed by the Collector for the sale of the judgment-debtor's property. But on March 3, 1922, the Zendes and Mategaonkar presented a joint application to the Court which, after referring to the darkhast, says : 'In the said darkhast the plaintiff and the defendant have come to a settlement that upon ...
Krishnadas Padmanabhrao Chandavarkar Vs. Vithoba Annappa Shetti
Court: Mumbai
Decided on: Sep-02-1938
Reported in: AIR1939Bom66; (1939)41BOMLR59
Beaumont, Kt., C.J.1. The question submitted to this full bench is whether gross negligence apart from fraud or collusion on the part of the next friend or guardian ad litem of a minor litigant can be made the basis of a suit to set aside a decree obtained against him.2. Looking at the matter apart from authority, and as one of principle and expediency, it seems to me that it is difficult to justify the suggested cause of action on any recognised principle. A plaintiff who brings a suit against a minor is bound to see that a guardian ad litem is appointed, and it is for the Court to satisfy itself that the person appointed is a proper person. But the plaintiff is not bound, and is not in a position, to see that the guardian ad litem carries out his duties properly, and if the guardian ad litem fails in his duty, it is difficult to see why the plaintiff who has proceeded in good faith in accordance with the rules of the Court should be deprived of the fruits of his judgment. If the caus...
Rau Rama Atkile Vs. Tukaram Nana Atkile
Court: Mumbai
Decided on: Sep-02-1938
Reported in: AIR1939Bom149; (1939)41BOMLR168
John Beaumont, Kt., C.J.1. This is a second appeal from a decision of the District Judge of Sholapur. The plaintiff sued to restrain the defendants from allowing the water from a mori and spouts on the defendants' building to enter upon the plaintiff's open site. In their written statement the defendants maintained that they were the owners of the vacant land on which the water was discharged, and alternatively they claimed an easement to discharge water through the mori and the spouts over this land, assuming that the land was of the plaintiff. The District Judge held the claim to an easement proved and dismissed the plaintiff's suit.2. It is contended in this appeal that in view of the claim of ownership put forward in their written statement, the defendants cannot rely on evidence which goes to establish an easement, and reliance is placed on the decision of Mr. Justice Baker in Marghabhai v. Motibhai : AIR1932Bom513 and a decision of a full bench of the Madras High Court, Subba Rao...
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