Mumbai Court October 1939 Judgments
Jadu Nath Roy Vs. Parameswar Mullick
Court: Mumbai
Decided on: Oct-30-1939
Reported in: (1940)42BOMLR331
George Rankin, J.1. By three English mortgages executed in 1023 and 1924 one Bhuban Mohan Mullick (a Hindu governed by the Dayabhaga) mortgaged to appellant No. 1 and the father of. the other four appellants his one-eighth share in certain immovable property. The capital sums secured amounted to Rs. 2,35,000. On April 24, 1925, he died intestate, leaving him surviving a widow Sm. Annabati Dassi, a minor son Biswanath and an unmarried daughter Sm. Parbati Dassi (also a married daughter who need not here be further mentioned). By the decree under appeal, which is dated January 28, 1937, it has been held by the High Court at Fort William in Bengal that the maintenance of the widow and unmarried daughter is a charge upon the interest of the mortgagees under the mortgages.. This conclusion is prima facie opposed to the rights of the parties; indeed it does not in the end appear to have been doubted by the Courts in India that while the ladies would have a claim for a charge upon any propert...
Tag this Judgment!M.S. Bhopshetti Vs. B.V. Bhat
Court: Mumbai
Decided on: Oct-13-1939
Reported in: AIR1944Bom188; (1940)42BOMLR223
Divatia, J.1. This appeal has been preferred by the City Municipality of Dhulia against the decree of the District Judge in appeal dismissing the suit on the ground of limitation. The defendant is the honorary secretary of an institution called Rajwade Sanshodhan Mandal at Dhulia which owned two buildings in Dhulia City. According to the plaintiff-Municipality those buildings were liable to the Municipal house-tax and bills were sent for the two years 1931-32 and 1932-33. The defendant's case was that they were not liable as they belonged to a public institution. He, therefore, appealed to the Bench Magistrates under Section 110 of the Bombay Municipal Boroughs Act. The Magistrates held on April 29, 1933, that the buildings were not liable to house-tax and directed a refund of the amount. Thereupon the present suit was filed by the Municipality on November 27, 1934, for a declaration that the decision of the Magistrates' Court was null and void and that the property was liable to house...
Tag this Judgment!Atmaram Vinayak Kirtikar Vs. Lalji Lakhamsi
Court: Mumbai
Decided on: Oct-13-1939
Reported in: AIR1940Bom158; (1940)42BOMLR227
John Beaumont, Kt., C.J.1. This is a revision application from the full Court of the Small Cause Court, Bombay, and it raises an interesting question of limitation.2. The facts found are that the plaintiff is a grain dealer, and between October, 1933 and October, 1934, he supplied grain on a number of dates to the defendant. The dates were quite irregular, but there were deliveries during every month, and the defendant paid certain sums on account, the payments being for various amounts, and on irregular dates, and in this suit, which was filed on October 2, 1937, the plaintiffs sue for the balance due. The case was tried by Judge Nadkarni, who gave a long judgment holding that the bulk of the claim was barred by limitation. The view he took was that the plaintiff had a separate cause of action in rdspect of each consignment of grain delivered, and that under Article 52 limitation ran from the date of the delivery of each consignment, and therefore the suit was barred in respect of del...
Tag this Judgment!Dasharath Supadu Ladsake Vs. Gopal Bhila Gadhari
Court: Mumbai
Decided on: Oct-12-1939
Reported in: AIR1940Bom48; (1940)42BOMLR276
John Beaumont, Kt., C.J.1. This is a second appeal from a decision of the District Judge of East Khandesh, raising a point of limitation. Unfortunately the respondents have not appeared, and therefore I have not had the advantage of any argument in support of the judgment of the learned District Judge which confirmed that of the learned trial Judge.2. But the point is a very short one and depends entirely on the construction of the fifth paragraph of Article 182 of the Indian Limitation Act. The facts which give rise to the difficulty are these-3. In 1927 a mortgage decree was made for payment of a sum of money by four equal annual instalments. The first instalment was to be paid in December, 1927, and the other instalments in December, 1928, 1929 and 1930. In July, 1929, a darkhast was issued to recover the two instalments then due, and that darkhast was disposed of on April 20, 1932. The present darkhast was issued on June 5, 1935, but it was not disputed that by reason of the vacati...
Tag this Judgment!Ramrao Bhagwantrao Inamdar Vs. Babu Appanna Samage
Court: Mumbai
Decided on: Oct-11-1939
Reported in: AIR1940Bom121; (1940)42BOMLR143
Lokur, J.1. This is an application in revision against the order of the Assistant Judge of Belgaum allowing the withdrawal of a suit with liberty to file a fresh suit. The original plaintiff, who died during the pendency of the suit, filed the suit in the Court of the Subordinate Judge of Chikodi for an injunction restraining the defendants from obstructing him in removing the trunk of the babul tree which he had cut down. He alleged that the tree stood on his land survey No. 128 |l of Badakatul and had been in his enjoyment for forty years. The land is bounded by a stream on its east and the defendants who are the inamdars of the village; contended that the tree was not standing on the plaintiff's land, but in the bed of the stream of which the flow had been wrongfully diverted by the plaintiff by artificial means. The plaintiff claimed that the said portion of the bed was an alluvion and as such was an accretion to his land, while the defendants contended that the new land in the bed...
Tag this Judgment!Vaijayantappa Shirsappa Ijari Vs. Anasuya Waman Anant
Court: Mumbai
Decided on: Oct-11-1939
Reported in: AIR1940Bom196; (1940)42BOMLR377
Wassoodew, J.1. The question that arises upon the preliminary objection taken by the respondents' advocate to this appeal from the order of Mr. Justice Divatia excusing the delay in filing First Appeal No. 184 of 1938 in this Court, is whether that order is a ' judgment' within the meaning of clause 15 of the Letters Patent. The respondents contend that such an order is but a preliminary step regulating procedure in the appeal and does not affect the merits of the case nor does it determine the rights between the parties, and that what it determines is that the appellant is not debarred from appealing, as in the absence of such an order he might have been so debarred. In other words, it has been contended that Inasmuch as it merely restores the appeal to an appealable condition, the order is not a ' judgment' and, therefore not appealable. On the other hand it is argued for the appellants that by the delay of the respondents a substantial right has accrued to the appellants in this app...
Tag this Judgment!Probodh Kumar Das Vs. the Dantmara Tea Co. Ltd.
Court: Mumbai
Decided on: Oct-10-1939
Reported in: (1940)42BOMLR199
Macmillan, J.1. This appeal relates to a tea garden in the district of Chittagong, known as the Kaicherra Tea Estate, which at one time belonged to the Kaiyacherra Tea Company, Limited. The estate was mortgaged to Messrs Gillanders, Arbuthnot & Co. of Calcutta who in 1930 obtained an order for the compulsory winding-up of the Tea Company. Thereafter the estate was put up to auction by the liquidators and purchased by Messrs. Gillanders, Arbuthnot & Co. Without obtaining any conveyance in their favour Messrs. Gillanders, Arbuthnot & Co. on October 10, 1931, by an interchange of letters of offer and acceptance agreed to sell the estate to one S. N. Roy, who paid the first instalment of the price and entered into possession. No conveyance was ever executed in pursuance of this contract of sale, but the plaintiffs in the present suit, now the appellants, claim to have acquired at least in part the purchaser's rights under it. The estate has been the subject of a complicated series of trans...
Tag this Judgment!Babu Bhagwan DIn Vs. Gir Har Saroop
Court: Mumbai
Decided on: Oct-10-1939
Reported in: (1940)42BOMLR190
George Rankin, J.1. On April 14, 1930, the first two appellants (uncle and nephew) filed before the District Judge at Lucknow an application under Section 3 of the Charitable and Religious Trusts Act (XIV of 1920) for an order directing accounts to be furnished in respect of a certain temple in Lucknow together with land and houses adjacent thereto and occupied therewith. The principal deity is Bhaironji and from this idol, the temple takes its name, but there are other idols also in diffedent parts of the temple compound, which is now of an area variously stated as about four bighas or sixteen biswas. The ; respondents to the application were five in number, three men and two women : with certain other members of their family they are now respondents before the Board in this consolidated appeal. They claim to be direct descendants of one Daryao Gir to whom a grant was made in 1781 of the land now in question by the then reigning Nawab of Oudrt It has been found and it does not appear ...
Tag this Judgment!Urban Co-operative Bank, Limited Vs. Honavar Havik Co-operative Bank, ...
Court: Mumbai
Decided on: Oct-10-1939
Reported in: AIR1940Bom190; (1940)42BOMLR218
Divatia, J.1. This revisional application arises in proceedings relating to rateable distribution of certain assets under Section 73 of the Civil Procedure Code. Several persons as well as banks had obtained decrees against one Madappa Hegde who was a member of a joint Hindu family. The petitioner in this application was one of the banks which had filed Darkhast No. 684 of 1929 to execute its decree and had attached the undivided share of the judgment-debtor Madappa in the joint family property during his lifetime. The said share was sold on November 30, 1936, and a sum of Rs. 2,235 was realized as assets. Before this date, however, Madappa died on February 24, of the same year without leaving any issue, and his two brothers as surviving coparceners were brought on the record. The other decree-holders, who are the opponents in this application, had in the meanwhile filed applications to execute their money decrees against Madappa, and they claimed rateable distribution in the said amou...
Tag this Judgment!Chandan Mull Indra Kumar Vs. Chimanlal Girdhardas Parekh
Court: Mumbai
Decided on: Oct-10-1939
Reported in: (1940)42BOMLR387
Romer, J.1. This is an appeal from a judgment and decree of the High Court of Judicature at Patna dated April 1, 1937, which reversed a judgment and decree of the Subordinate Judge of Dhanbad dated February 21, 1933, and dismissed the appellants' suit.2. The question for decision; is whether the appellants or some of them are entitled to recover damages from the respondents by reason of the respondents having cut and removed coal under a certain area of land which will be described later. 3. The appellants' claim to the coal in question is founded upon a lease or rather a sub-lease dated July 17, 1908, (hereinafter called the sub-lease) whereby there was demised to the Phularitand Coal Company Limited (hereinafter called the Phularitand Company) coal under the land described in the third schedule thereunder written and also delineated and described in the map or plan thereto annexed and thereon coloured blue. Amongst the land described in the third schedule was land situate in the mauz...
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