Mumbai Court March 1943 Judgments
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S.V. Mandlik Vs. the Borough Municipality
Court: Mumbai
Decided on: Mar-18-1943
Reported in: AIR1944Bom97; (1943)45BOMLR1059
N.J. Wadia, J.1. This is an application in revision against a decree of the First Class Subordinate; Judge, Jalgaon, dismissing a suit brought by the petitioner, the principal officer of the Jalgaon Electric Supply Company, Ltd., against the Borough Municipality of Jalgaon, The suit was to recover a sum of Rs. 32-10-0 due to the Jalgaon Electric Supply Company for the balances remaining due on two bills for electricity supplied in December, 1940, and January, 1941. The greater portion of the amount of each bill was paid by the Municipality but a sum of Rs. 18-10-6 remained unpaid for the bill of December, 1940, and a sum of Rs. 13-12-6 remained unpaid for the bill of January, 1941, making in all Rs. 32-7-0. The Electric Company gave notice to the Municipality on January 8, 1941, calling upon it to pay the amount. When this notice was not complied with another notice was given on March 5, 1941, and that also not being complied with, a suit was filed on March 29, 1941, for the recovery o...
Burjorji Pestonji Baria Vs. Murlidhar Sidhgopal Avasti
Court: Mumbai
Decided on: Mar-16-1943
Reported in: AIR1943Bom318; (1943)45BOMLR602
Beaumont, C.J.1. This is an appeal against an order of Mr. Justice Kania made in Chambers allowing the respondent to sue the appellant in forma pauperis, and a preliminary objection is taken that the judgment is not a judgment within Clause 15 of the Letters Patent, and that no appeal lies. The Prothonotary, to whom application under Order XXXIII was made in the first instance by virtue of Rule 89 of the High Court Rules, rejected the application for leave to sue as a pauper, but his order was set aside by the learned Judge in Chambers. There seems to be some question as to the correct procedure to be adopted on these pauper applications, and we will deal with that matter before considering the preliminary objection.2. The scheme of Order XXXIII, Civil Procedure Code, which deals with pauper applications, seems reasonably clear, Rule 2 provides that every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits, and it has to be...
Rajeshwari Kuer Vs. Khukhna Kuer
Court: Mumbai
Decided on: Mar-15-1943
Reported in: (1944)46BOMLR509
Clauson, J.1. This is an appeal from a judgment of the High Court at Patna of October 27, 1938, affirming with a modification a judgment of the Subordinate Judge of Chapra of April 25, 1938, whereby, in effect, he confirmed the attachment, in execution of a decree, of certain interests of the appellants under the will of Tirgunanand Upadhaya (hereinafter called the testator), who died in the year 1915. The substantial contention of the appellants is that their interests in the corpus so attached are contingent interests, and therefore, by reason of proviso (m) to Section 60(1) of the Civil Procedure Code, 1908, not liable to attachment. The question at issue turns upon the true construction of the somewhat inartistically drafted will of the testator.2. The testator made his will on July 26, 1915. He had had one son only who had died some three years previously. At the date of his will and at the date of his death (which occurred shortly after the date of his will) his near living relat...
Bammangouda Shankargouda Patil Vs. Shankargouda Rangangouda Patil
Court: Mumbai
Decided on: Mar-15-1943
Reported in: AIR1944Bom67; (1943)45BOMLR1021
Divatia, J.1. [His Lordship after setting out the facts and dealing with the other points in the appeals proceeded :]2. That brings us to the last point as to the alleged severance of interest between defendant No. 1 and his son on the one hand and defendant No. 2 on the other. The law as now settled by our High Court is that an adoption in order to affect the property in suit must have taken place at a time when the coparcenary was in existence, and if it was made at a time when by death or by partition the coparcenary had come to an end, it would not revive the coparcenary and would not have the effect of divesting property which had vested in a person either as an heir of the last single coparcener or in two different persons by partition of the family property. That rule of law has now been definitely laid down by our High Court in the full bench case of Balu, Sakharam v. Lahoo (1936) 39 Bom. L.R. 382 and in Irappa Lokappa v. Rachayya Madiwalayya : AIR1940Bom118 . It is the case of...
Chunilal Bhagwanji Vs. Kanmal Lalchand
Court: Mumbai
Decided on: Mar-12-1943
Reported in: AIR1944Bom201; (1944)46BOMLR350
John Beaumont, Kt., C.J.1. This is an appeal against an order made by the Extra Assistant Judge at Ahmedabad reversing the decision of the trial Court. The question arising is one of procedure.2. The suit is a suit by a minor by his next friend, his aunt, Bai Dhapu, and it appears from the plaint that the defendant had executed a promissory note in favour of a firm, known as Kisan Baf and Sukalchand Kanmal, and that the minor plaintiff claims to be the owner of the firm. The plaint was signed and verified by one Saremal, and it was presented by a pleader, Mr. Thakor, whose vakalatnama had been signed by Saremal. The plaintiff's case is that Saremal was the duly authorized agent of Bai Dhapu to present the plaint, to sign it, and to appoint a pleader, Saremal being authorized so to act under the power-of-attorney which is exhibit 3/2.3. The trial Court took the view that under Order III, Rule 1, Civil Procedure Code, 1908, the plaint had to be signed in the case of a minor by the next f...
Bai Cursetbai C. Dossabhoy Vs. Bai Hamabai Jehangir Wadia
Court: Mumbai
Decided on: Mar-10-1943
Reported in: AIR1943Bom317; (1943)45BOMLR598
Chagla, J.1. This is an appeal from the judgment of Mr. Justice Kania whose decision turns on the construction of a clause of the will of one Bai Meherbai, widow of Burjorji Cowasji Lah, who died on May 23, 1913, leaving a will dated December 19, 1912, whereof she appointed defendants Nos. 1 to 3 and her nephew Jehangir Dhanjibhoy Wadia and her son Ardeshir executrix and executors. The executors and executrix obtained probate of the will on December 12, 1913. Jehangir died on October 19, 1920, and Ardeshir died, on October 1, 1941. Therefore defendants Nos. 1 to 3 are the surviving executors of the will of Bai Meherbai. Defendant No. 4 is the Advocate General of Bombay.2. Under Clause 11 of the will the testatrix provided that out of her punji a trust for Rs. 25,000 shall be created for the benefit of Ardeshir. The interest on the sum of Rs. 25,000 was to be received by Ardeshir during his lifetime and afterwards the principal amount was to go to such person as Ardeshir may by a will o...
Harkubai Fakirchand Shet Vs. Shankerbhai Zaverbhai Gujarati
Court: Mumbai
Decided on: Mar-10-1943
Reported in: AIR1944Bom37; (1943)45BOMLR1014
Macklin, J.1. This appeal by the plaintiff in a suit to enforce payment under a promissory note has led to an interesting discussion of the law of limitation. On the merits the plaintiff has succeeded in the Court below; but his suit has been dismissed as barred by limitation and not saved by the provisions of Section 20 of the Indian Limitation Act, 1908.2. On January 2, 1933, the promissory note for Rs. 5,400 now sued upon was executed by defendant No. 2 on behalf of the suit shop. It contains three endorsements, of which the last is an endorsement of the payment of Rs. 75 on October 13, 1935, in the handwriting of defendant No. 2. On October 13, 1938, exactly three years after, the present suit was brought in the Nasik Court. On November 29, 1939, it was held by that Court that the Court had no jurisdiction, and the plaint was ordered to be returned. On Saturday December 9, 1939, the plaint was endorsed as returned to the plaintiff's pleader, and on Monday, December 11, 1939, it was...
Hormasji Jamshedji Ginwalla Vs. Maneklal Mansukhbhai
Court: Mumbai
Decided on: Mar-09-1943
Reported in: AIR1944Bom105; (1943)45BOMLR1010
Divatia, J.1. [His Lordship after stating facts and dealing with questions of fact arising in the case proceeded] : Coming to the merits of the case, the defendant must prove that he is a permanent tenant as he has admittedly paid rent to the plaintiff. It is admitted on his behalf that there is no registered lease in favour of his predecessor-in-title. Under Section 107 of the Transfer of Property Act a lease of the suit lands could only be made by a registered document, and unless the lease was registered, he cannot be regarded as holding the land as a lessee. It is also clear that although the defendant might have been put in possession of the estate under an agreement to lease, the doctrine of part performance would not apply to such possession as has been held by their Lordships of the Privy Council in Ariff v. Jadunath Majumdar . The defendant, however, relies upon Section 53A of the Transfer of Property Act and contends, as he did in the lower Court, that he cannot be evicted fr...
Mohanlal Narottamdas Kandoi Vs. Keshavlal Narottamdas Kandoi
Court: Mumbai
Decided on: Mar-05-1943
Reported in: AIR1943Bom441; (1943)45BOMLR880
John Beaumont, Kt., C.J.1. This is a reference made to me under Section 5 of the Court-fees Act by the Taxing Officer.2. The facts giving rise to the reference are these. The present appellant (plaintiff) sued for partition, claiming one-third of a house which, he alleged, constituted the joint family property. The trial Court came to the conclusion that the joint family property consisted, not only of the house which the plaintiff sought to partition but also of another house, referred to as the house in exhibit 88, which was in the possession of the plaintiff, and the learned Judge, therefore, made an order that unless the plaintiff amended the plaint expressing his desire to put the house in exhibit 88 in his possession as joint family property no orders to effect partition of the suit house in his favour could be passed, as that would be in effect allowing a suit for partial partition. What the order comes to is that, if the plaintiff chooses to bring into hotchpot the house in exh...
Govind Prasad Vs. Pawankumar
Court: Mumbai
Decided on: Mar-04-1943
Reported in: (1944)46BOMLR306
Madhavan Nair, J.1. This is an appeal from an order of the High Court of Judicature at Nagpur dated November 11, 1938, confirming an order of the Court of the Additional District Judge, Raipur, dated August 20, 1936.2. The appeal arises out of an execution proceeding, and the question for determination is whether the application made by the decree-holder for the execution of a decree which he had obtained against the appellants before the Board-the judgment-debtors-is barred by time. Both Courts in India have held that it is not barred.3. The material facts are as follows :- One Madanlal Sao, the father of the respondent, obtained a decree against the appellants on February 1, 1932, in the Court of the Additional District Judge, Raipur, for Rs. 32,185-5-3 with interest and costs. Before judgment, he had the immovable properties of the appellants attached under the Civil Procedure Code. On June 27, 1932, which was within the period of three years prescribed by the Indian Limitation Act,...
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