Mumbai Court February 1941 Judgments
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Harilal Pannalal Sarda Vs. Vishnu Ramchandra Kallol
Court: Mumbai
Decided on: Feb-27-1941
Reported in: (1941)43BOMLR724
John Beaumont, C.J. 1. This is an appeal under the Letters Patent from a decision of Mr. Justice Divatia, and it raises an interesting question of law.2. On February 1, 1932, a mortgage decree was passed in favour of one Hari Narayan against the respondents. The decree directed payment to the plaintiff of a sum of Rs. 13,000 by certain instalments, and then provided:In case defendants fail to pay any two instalments, plaintiff do recover the whole of the amount by getting the below-mentioned mortgaged properties sold. 3. So that it is not an ordinary preliminary decree directing that if the plaintiff is not paid, he may apply for an order for sale; the order directs that the plaintiff may get the properties sold, if he is not paid. In 1936 Hari Narayan was declared an insolvent by a Court of the Miraj State, that is to say, by a foreign Court, and a person styled a 'Receiver', who is the present appellant, was appointed. The appellant then applied in his own name to execute the decree ...
Jamiyatram Gaurishankar Joshi Vs. Umiyashankar Pranshankar Joshi
Court: Mumbai
Decided on: Feb-20-1941
Reported in: (1941)43BOMLR699
John Beaumont, C.J.1. This is a revision application in execution, which raises a question under Section 73 of the Civil Procedure Code, 1908. There were two decrees, the first being against three persons personally and a fourth person whose existence can be ignored, I think, and the second against the same three persons as the heirs of their deceased father. The question which arises is whether a decree against a person individually and a decree against that person as representative of a deceased person can be held to be decrees against the same judgment-debtor within the meaning of Section 73 so as to entitle the holders of the two decrees to rateable distribution.2. Mr. C.K. Shah for the applicant relies on a recent decision of the Calcutta High Court in Hemendra Nath Chaudhuri v. East Bengal Commercial Bank (1936) I.L.R. 63 Cal. 923. in which the Court held that in such a case the decrees were against the same judgment-debtor. On the other hand, Mr. J.C. Shah relies on decisions of...
Emperor Vs. Noormahomed Haji Janmahomed
Court: Mumbai
Decided on: Feb-19-1941
Reported in: (1941)43BOMLR598
John Beaumont, Kt., C.J.1. This is a revision application against the conviction of the accused by a Bench of Honorary Presidency Magistrates of offences under Sub-section 257(2) and 375 of the City of Bombay Municipal Act, 1888.2. The accused was served with a notice on March 9, 1940, requiring him to do certain work covered by those sections. The only question is whether he is a person liable to be served with such a notice and required to do the work in question, and that depends entirely on the definition of the expression 'owner'. It is not suggested that the accused is an occupier, which is one of the words used in Section 375. The only question is whether he is an owner.'Owner' is defined in Section 3(m) of the Act as meaning the person who receives the rent of the said premises, or who would be entitled to receive the rent thereof if the premises were let, and includes an agent or trustee who receives such rent on account of the owner, and an agent or trustee who receives the r...
Dinbai Behramji Gonda Vs. Motibai Burjorji Chhor
Court: Mumbai
Decided on: Feb-19-1941
Reported in: (1941)43BOMLR770
John Beaumont, C.J. 1. The question on this appeal is whether the appellant or respondent No. 1 should be granted letters of administration de bonis non to the estate of one I jiarji, a Parsi, who died in 1916. Letters of administration were granted after a suitable interval, that is in 1924, to the widow and one daughter. The parties seem to have been litigating ever since, and the estate has not been administered. We are told that in fact nothing has been done towards the administration of the estate. The widow and the daughter, who were the administrators, have died, and an application was made by the plaintiff, who is another daughter, for letters of administration de bonis non, and that was opposed by defendant No. 1, who is an elder daughter. The learned Assistant Judge refused to grant letters of administration to defendant No. 1, because she admitted that she had disposed of the whole of her interest in the estate. She alleges that the plaintiff has also disposed of her interes...
Krishnaji Ramchandra Koshti Vs. Bhikchand Ramkaran Marwadi
Court: Mumbai
Decided on: Feb-12-1941
Reported in: (1941)43BOMLR719
N.J. Wadia, J.1. This appeal arises out of an application made by the appellant in execution proceedings which had been started by him to execute a mortgage decree obtained by him in suit No. 136 of 1923. The property involved in the suit had been mortgaged to the appellant-plaintiff by one Narayan Ramji on April 15, 1916. Subsequent to this the same property was mortgaged by Narayan to the respondent Bhikchand Ramkaran Marwadi on June 7, 1917. In 1921 Bhikchand filed a suit on his mortgage and obtained a mortgage decree on August 17, 1922, and in the course of the execution proceedings on that decree he himself purchased the property on March 3, 1931, the sale being confirmed on May 25, 1931. In the meanwhile the plaintiff filed his suit, No. 136 of 1923, and obtained a decree on August 4, 1923. To this suit Bhikchand had not been joined as a party. The plaintiff filed darkhasts in 1927 and 1930, but these were not prosecuted. Finally darkhast No. 360 of 1931, from which this appeal a...
Hilla Maneksha Panthaky Vs. Maneksha Darasha Panthaky
Court: Mumbai
Decided on: Feb-10-1941
Reported in: (1941)43BOMLR569
B.J. Wadia, J. 1. This is a chamber summons taken out by the defendant for revocation of the leave granted by this Court to the plaintiff on December 12, 1940, under Section 29(3) of the Parsi Marriage and Divorce Act of 1936 for the purpose of enabling her to file this suit in this Court.2. The suit is filed by the plaintiff against her husband for judicial separation, for permanent alimony, and for the custody of the children of the marriage. In paragraph 30 of the plaint it is alleged that the marriage cere mony was performed in Jalna in the Nizam State, that the defendant is a railway servant at Upalwai also in the Nizam State, and is residing there, that the plaintiff has now been residing in Bombay, and that it would be a - great hardship to her if she was compelled to institute this suit in a Court outside Bombay. The application to the Court was made under Rule 782(2) of the Rules and Regulations for the Parsi Chief Matrimonial Court of Bombay. The application has according to ...
Hussenbhoy Abdoolabhoy Lalji Vs. Rashid B. Vershi
Court: Mumbai
Decided on: Feb-07-1941
Reported in: (1941)43BOMLR523
John Beaumont, Kt., C.J.1. This is an application in revision against an order made by the Presidency Magistrate, 2nd Additional Court, Mazagaon, granting inspection of documents.2. The case is one in which the accused are charged with criminal breach of trust in relation to certain charitable funds, which it is alleged that they have improperly applied in their business. We are not in any way concerned with the merits of the prosecution case. On September 23, 1940, the learned Magistrate issued a search warrant, and also issued a summons for production of documents, which were specified in the complainant's application and include various accounts relating to this charity and also the books of account, that is to say ledgers, rojmels and nondh books, for five years of the firm of Abdullabhoy Lalji & Co., which is the accused firm. Subsequently, the complainant wrote to the accused's attorneys claiming inspection of a large number of these documents, and an application was then made to...
Guddappa Chikkappa Kurbar Vs. Balaji Ramji Dange
Court: Mumbai
Decided on: Feb-06-1941
Reported in: (1941)43BOMLR681
John Beaumont, Kt., C.J.1. This is a second appeal from a decision of the Assistant Judge of Dharwar, which has been referred to a full bench, because it raises the question whether the decision of this Court in Sidlingappa v. Hirasa (1907) I.L.R. 31 Bom. 405 is correct.2. The facts as found by the lower Courts are that in 1923 there was a decree passed against defendants Nos. 1 and 2, who are the present appellants, which decree was in process of being executed. Then on January 3, 1928, the defendants executed in favour of the present plaintiff what purported to be a sale-deed, and on that deed the plaintiff sues for possession. Both the lower Courts have held that in fact no consideration passed on that sale-deed, that it was part of a fraudulent attempt on the part of the defendants to defeat their creditors, and that the deed on which the plaintiff sues was in effect a benami transaction. On those findings, which bind us in second appeal, the. learned Subordinate Judge dismissed th...
Laxman Anant Pai Kagal Vs. Govind Rambhat
Court: Mumbai
Decided on: Feb-06-1941
Reported in: (1941)43BOMLR695
John Beaumont, C.J.1. This is a revision application under Section 115 of the Civil Procedure Code, which raises a question under Section 73 of the Civil Procedure Code, which is not altogether free from difficulty.2. The present applicant obtained a decree against a father and son, members of a Hindu joint family. Of the thirteen opponents, one obtained a similar decree against the father and son, and his position is obviously the same as that of the applicant. But the other twelve opponents obtained decrees against the father alone, and I will assume that in all those decrees the father was shown as the manager of the joint Hindu family. In execution of the applicant's decree, ancestral property has been sold for Rs. 5,289, and that money is in Court. The opponents applied to execute their decrees, and they now ask for rateable distribution with the applicant.3. Section 73 provides that:--(1) Where assets are held by a Court and more persons than one have, before the receipt of such ...
Jina Magan Pakhali Vs. Bai Jethi
Court: Mumbai
Decided on: Feb-03-1941
Reported in: (1941)43BOMLR651
Divatia, J.1. This appeal arises in a suit by the plaintiff-appellant against his wife for restitution of conjugal rights. The only question in the appeal is whether the plea of the defendant that she has already been divorced from the plaintiff has been established. The lower appellate Court has held, differing from the trial Court, that the defendant had been validly divorced by the plaintiff according to the custom of the caste and that the latter was not, therefore, entitled to the relief prayed for.2. The finding of the lower appellate Court on the evidence is that both the parties belonging to the Pakhali caste of Ahmedabad were married to each other when they were children, that on August 17, 1935, there was a meeting of the caste panch where a divorce was granted with the consent of both the parties and two mutual documents were executed by the brothers of the plaintiff and the father of the defendant as the parties were considered to be minors. On the question of minority ther...
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