Mumbai Court February 1943 Judgments
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Shidramappa Irappa Shivanagi Vs. Basalingappa Kushappa Kumbhar
Court: Mumbai
Decided on: Feb-26-1943
Reported in: (1943)45BOMLR697
Divatia. J.1. The question arising for decision in this revisional application is whether a decree passed by the Court on evidence led by the plaintiff after the defendant's pleader withdrew for want of instructions is an ex parte decree or a decree on the merits.2. The facts of the case are that after the suit was taken from the sine die list, it was fixed for evidence on September 8, 1939. On that date the defendant and his witnesses were absent. His pleader's application for adjournment on that ground was rejected. Thereupon he withdrew from the case stating that his client had not turned up and he had no instructions. The plaintiffs' pleader then led his evidence and the Court passed a decree in their favour. Thereafter the defendant applied to have the decree set aside and the suit restored to file on the ground that he was not able to attend the Court because of his illness and his pleader had to withdraw for want of instructions after the application for adjournment was rejected...
Shravan Jayaram Patil Vs. Garbad Ukha Nhavi
Court: Mumbai
Decided on: Feb-26-1943
Reported in: AIR1943Bom406; (1943)45BOMLR874
Lokur, J.1. This appeal arises out of a suit filed by the plaintiff to recover possession of a land which he claimed to have given into the defendant's possession to be enjoyed for six years towards the satisfaction of a loan of Rs. 330 borrowed by him on February 10, 1932, The defendant denied that he had given a loan to the plaintiff and contended that he had purchased the land for Rs. 660, that the plaintiff had recovered the price and put him into possession and that he was entitled to resist the, plaintiff's claim for possession under Section 53A of the Transfer of Property Act, 1882. The trial Court did not believe the plaintiff's version regarding the loan of Rs. 330 and found that the plaintiff had orally sold the land to the defendant, had received at least Rs. 580 from him and had put him in possession of the land. But it decreed the plaintiff's claim for possession as the agreement of sale was not in writing signed by him or on his behalf. The decree was confirmed in appeal,...
Basalingappa Kushappa Kumbhar and ors. Vs. Shidramappa Irappa Shivanag ...
Court: Mumbai
Decided on: Feb-26-1943
Reported in: AIR1943Bom321
Divatia, J.1. The question arising for decision in this revisional application is whether a decree passed by the Court on evidence led by the plaintiff after the defendant's pleader withdrew for want of instructions is an ex parte decree or a decree on the merits. The facts of the case are that after the suit was taken from the sine die list, it was fixed for evidence on 8th September 1939. On that date the defendant and his witnesses were absent. His pleader's application for adjournment on that ground was rejected. Thereupon he withdrew from the case stating that his client had not turned up and he had no instructions. The plaintiffs' pleader then led his evidence and the Court passed a decree in their favour. Thereafter the defendant applied to have the decree set aside and the suit restored to file on the ground that he was not able to attend the Court because of his illness and his pleader had to withdraw for want of instructions after the application for adjournment was rejected....
Jitendra Nath Roy Vs. Samarendra Nath Mitter
Court: Mumbai
Decided on: Feb-25-1943
Reported in: (1944)46BOMLR232
Atkin, J.1. These are consolidated appeals from the judgment of the High Court of Calcutta reversing a judgment of the First Subordinate Judge of Hooghly. The question was as to the right of one Jitendra now deceased, whom the present appellants represent, to execute a decree of which he was an assignee from the then existing decree-holder. The matter arises in a suit brought in 1923 by the three surviving grandsons of Ishan Chandra Mitter against Tarubala Dassi the widow of their deceased uncle for the partition of the joint ancestral property. It is only necessary to summarise the proceedings which led to the present claim by Jitendra. In 1924 by a decree confirming a compromise agreement it was provided that the immovables should be divided, the widow to receive one-third share, and until partition to be paid Rs. 1,400 per month. Difficulties seem to have arisen in the course of the partition : the monthly payments were not duly paid, and the widow on several occasions had obtained ...
Nawab Humayun Begam Vs. Nawab Shah Mohammad Khan
Court: Mumbai
Decided on: Feb-24-1943
Reported in: (1944)46BOMLR300
Atkin, J.1. This is an appeal from a decree from the Chief Court of Oudh, which had reversed the decree of the Subordinate Judge of Lucknow, who had made a decree in favour of the plaintiff, the present appellant.2. The claim was contained in a suit which was commenced-and the date is for some purposes important-on September 15, 1934. It was a case in which, as originally framed, the plaintiff instituted a suit against her husband, his son, defendant No. 2, and two banks in India with whom money had been deposited on fixed deposit receipt, and the claim was brought by the lady for a declaration that certain sums of money which were held by the banks on deposit receipt were her property and not her husband's.3. The facts appear to be that the lady was married in 1928 to the defendant, and in 1929 she had handed certain money-the only sum which their Lordships need trouble with at present is a sum of Rs. 99,000-which belonged to her, to her husband to be put on deposit in the bank in the...
Roshanbai Vs. Suleman Haji Ahmed Umar
Court: Mumbai
Decided on: Feb-23-1943
Reported in: AIR1944Bom213; (1944)46BOMLR328
Kania, J.1. [After setting out the pleadings and contentions of the parties the judgment proceeded :] The case set up in the plaint is that the plaintiff was married to the defendant in March, 1932. An application was made at the commencement of the hearing to amend the plaint by including an allegation of acknowledgment. For reasons given in my judgment at that time I refused that application.2. According to Mahomedan law a man is not obliged to maintain his mistress or his illegitimate children, in the sense that in a civil Court such an obligation cannot be established. Therefore, the question to be considered is whether the plaintiff is the wife of the defendant as alleged in the plaint. Amongst Mahomedans no particular ceremonies are required for a marriage. The question whether there was a marriage or not is one of fact. That fact may be proved by direct evidence by calling witnesses who were present at the time or producing the nikahnama signed by the parties. It may be proved b...
Tribhovan Hargovan Vs. Shankar Desai
Court: Mumbai
Decided on: Feb-23-1943
Reported in: AIR1943Bom431; (1943)45BOMLR866
Sen, J.1. This was a suit brought by the appellant for an injunction against the defendant-respondent restraining him from locking the northern door of the plaintiff's house and for possession of the open space or gabhan and the chowk to the north of the said house. He alleged that the house with the gabhan and the chowk had belonged to one Azamkhan who had sold them on February 22, 1938, to one Husein who had sold them to him on May 4, 1938, both the sale-deeds being registered. The defendant contended that the gabhan and the chowk had been sold to him for Rs. 75 by an unregistered sale-deed dated May 24, 1936, and that he had been in possession as their absolute owner since that date and that since then the northern door of the plaintiff's house had been kept locked by him from outside.2. The trial Court held that the plaintiff had failed to prove his predecessor's title at the date of his sale-deed and that the defendant had proved his sale-deed and ownership of the suit properties....
Bai Shanta Vs. Trikamlal Vrijavallabhdas Shah
Court: Mumbai
Decided on: Feb-23-1943
Reported in: (1943)45BOMLR957
John Beaumont, Kt., C.J.1. This is an appeal from the Extra Joint First Class Subordinate Judge of Ahmedabad The suit was for a sum of money, the principal sum claimed being Rs. 7,000, and the learned Judge dismissed the suit on the ground that the plaint disclosed no cause of action.2. The plaint alleges in paragraph 1 that the defendant did business in the name of Kumudchandra Kantilal, and that allegation is admitted in the written statement. Then the plaint alleges certain advances to the defendant made by plaintiff No. 1, and other advances made by plaintiff No. 2, the plaintiffs being husband and wife, and then it is alleged that on March 17, 1936, the debt owing to the two plaintiffs by the defendant was Rs. 5,000, and a further sum of Rs. 2,000 was on that date advanced by plaintiff No. 2, making altogether a debt of Rs. 7,000, and that by an agreement of that date certain security was given for the Rs. 7,000. The learned Judge was not unnaturally puzzled as to what the plaint ...
Vamanrao Lallubhai Vs. Pranlal Bhagwandas
Court: Mumbai
Decided on: Feb-22-1943
Reported in: AIR1944Bom63; (1943)45BOMLR1002
Sen, J.1. The petitioner made an application in the Court of the First Class Subordinate Judge, Surat, for leave to sue in forma pauperis. In his application he gave the particulars required in regard to plaints in suits and filed a schedule of the moveable and immoveable property belonging to him and the estimated value thereof and he signed and verified the same, as required by Order XXXIII, Rule 2, Civil Procedure Code, 1908. Notice was issued to the Government Reader and the opponents under Order XXXIII, Rule 6. The learned Subordinate Judge found that, though the petitioner had no means to pay the court-fees, his application did not disclose any subsisting cause of action. He, accordingly, dismissed the application with costs, apparently under Order XXXIII, Rule 7(3). The petitioner then filed the present civil revision application, alleging inter alia that the opponents having admitted his pauperism the lower Court was wrong in going into the question as to what would be the effe...
Rustamalli Goharalli Mirza Vs. Aftabhuseinkhan Najafallikhan Mirza
Court: Mumbai
Decided on: Feb-21-1943
Reported in: AIR1943Bom414; (1943)45BOMLR862
Lokur, J.1. The facts out of which this appeal arises are these, The two villages Sahijpur-Bogha and Kujad belonged to the ancestor of defendant No. 1 Najafallikhan and the plaintiff's ancestors had a sixth share in their income. In 1860, by an agreement between defendant No. 1's father and the plaintiff's ancestors, Najafallikhan undertook to pay Rs. 96 a year out of the income of the villages in lieu of their one-sixth share. The agreement further provided that Najafallikhan was to pay Rs. 96 a year even if no income was realised by him. But in case of any catastrophe or an act of God or King he failed to realise any income, he was to pay such sum as he thought fit. Nothing more was to be paid to the plaintiff's ancestors even if the income realised was more. In pursuance of this agreement the plaintiff's father obtained decrees against defendant No. 1's father for arrears due at the rate agreed upon. In 1923 defendant No. 1 sold the village Kujad to Sardar Samsuddin, the father of d...
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