Mumbai Court August 1945 Judgments
Raychand Vanmalidas Vs. Maneklal Mansukhbhai
Court: Mumbai
Decided on: Aug-30-1945
Reported in: AIR1946Bom266; (1946)48BOMLR25
Divatia, J. 1. [They were mere observations not necessary for the decision.]2. That may be so, but they express also the law that should be followed in such cases, otherwise it will be necessary to prove animus in every case.Divatia, J. 3. [Sections 4 and 15 of the Indian Easements Act do indicate that rights of easement must be enjoyed over the property of another.]4. That is the ordinary law relating to easements, but there are cases which do establish that merely setting up a claim to ownership does not prevent the plaintiff from establishing a right to an easement. The owner of a dominant tenement must not necessarily believe that servient tenement belongs to another.5. According to our contention if our client proves that for twenty years he had already enjoyed the right of easement, it would not matter even if he had set up a claim to ownership which was held disproved. The statutory right which may have been acquired for the easement cannot be taken away by any decision in the p...
Tag this Judgment!Afshar M.M. Tacki Vs. Dharamsey Tricamdas
Court: Mumbai
Decided on: Aug-30-1945
Reported in: (1946)48BOMLR661
Blagden, J.1. This is a suit to recover Rs, 3,00,000 pursuant to an agreement in writing dated March 7, 1944, or alternatively as money paid for a consideration which has wholly failed. The defendant admits the making of the agreement and payment to him by the plaintiff of the sum sought to be recovered. He contends (inter alia) that the consideration has not failed wholly, that on the true construction of the agreement the money is not repayable, and that the agreement has been terminated by frustration.2. The contract out of which the suit arises is admittedly contained in two letters exchanged in Bombay on March 7, 1944. That addressed by the defendant to the plaintiff reads as follows:I agree to purchase for you and on your behalf 300 bales Grey cotton yarn merchantable quality each bale weighing 400 lbs. of which 100 bales shall be of 20 x 2S and 200 bales of 42 x 2S counts and to ship the same from Jattarabad to Khoramshare.You will provide to me the cost of purchase and all othe...
Tag this Judgment!Umadutt Nemani Vs. Chandrao G. Kadam
Court: Mumbai
Decided on: Aug-30-1945
Reported in: (1946)48BOMLR675
Blagden, J.1. This is an application for judgment in terms of an award made under Section 17 of the Indian Arbitration Act, 1940. The award was made on March 25 last and it was filed in this Court on May 1, and on June 7 notice was given by this Court to the respondent to the effect that the award had been filed under Sub-section (2) of Section 14 of that Act. The present application is made pursuant to a notice dated July 24 for August 10 of this year, and between June 7 and July 24 the present respondent has, so far as is material to this application, done nothing. Article 158 of the Limitation Act, as amended by the Indian Arbitration Act of 1940, provides a period of thirty days from the date of the service of the notice of the filing of the award for an application to set aside an award or to get the award remitted for reconsideration. Thirty days from June 7 would expire on July 7, well before the present notice of motion was taken out. Nonetheless, the respondent has attended th...
Tag this Judgment!Laxmikant Shripat Bhandare Vs. C.R. Gerrard
Court: Mumbai
Decided on: Aug-29-1945
Reported in: (1946)48BOMLR655
Blagden, J.1. This is a petition by Laxmikant Shripat Bhandare, a young man now aged twenty-three years, who, on July 4 last, was a student of the J. J. School of Article It is brought under Section 45 of the Specific Relief Act and asks for an order directing the respondent, who is the director of that institution, to forbear from enforcing an order described as of the 13th, but in fact of July 12, 1945, purporting to expel the petitioner from the J. J. School of Art and from preventing the petitioner from attending the said school. An order is also sought for directing the respondent to permit the petitioner to attend the school and to receive his training in the course for which he was studying. This petition was supported by an affidavit on the last sheet of the petition itself, which is a most unusual and admirable affidavit, in that it is exceedingly short and says no more than is necessary. Therein the petitioner verifies as true those allegations in the petition which could be ...
Tag this Judgment!Chimanlal Hargovinddas Vs. Gulamnabi
Court: Mumbai
Decided on: Aug-28-1945
Reported in: AIR1946Bom272; (1946)48BOMLR16
Divatia, J.1. [Here not only is the property transferred but the rights under the award are transferred, What will be the effect of that ?]2. The right under the award is not the right under a decree. The right under an award does not open until a decree is passed. Award is an intermediate stage which is short of a decree. Further the document of transfer in this case does not purport to convey the future rights that may be obtained under the decree. In that respect the document is silent. It does not purport to transfer the decree which may be passed in future in favour of the vendor. A decree is something different from an award and what was transferred was what the vendor had already got, that is a mere award, and not the decree, which he obtained after the transfer.3. The right under an award is similar to a right under a bond, and until a final adjudication is made on the rights under the bond, there can be no transfer of a decree. Similarly there can be no transfer of a decree, u...
Tag this Judgment!Nagappa Balappa Bastwad Vs. Ramchandra Gundo
Court: Mumbai
Decided on: Aug-28-1945
Reported in: AIR1946Bom365; (1946)48BOMLR225
Gajendragadkar, J.1. The plaintiffs in this case sued (Civil Suit No. 87 of 1935) to recover possession of the suit lands situated in Mouje Jabapur, their respective Revision Survey Nos. being 58, 5911 5912 and 59-A. The plaintiffs allege that these lands are all pargana watan lands and were owned by Gundo, the adoptive father of plaintiff No. 1. Gundo had mortgaged the lands in suit to Ningappa the ancestor of the contesting defendants, appellants before us, in the year 1873. Gundo died in 1880; his widow Tungawa borrowed some more money from the said Ningappa and passed a document in his favour in 1886. The plaintiffs allege that by this document Tungawa, the adoptive mother of plaintiff No. 1, sought to create rights of permanent tenancy in favour of Ningappa and their case was that this document was the result of undue influence practised on her. Plaintiff No. 1 was adopted by Tungawa in 1922 and the present suit has been filed within twelve years from the date of his adoption.2. S...
Tag this Judgment!Emperor Vs. Bhagwandas Tulsidas
Court: Mumbai
Decided on: Aug-20-1945
Reported in: AIR1946Bom184; (1945)47BOMLR997
Lokur, J.1. The accused are being tried for the murder of one Dharamsey, and Mr. Haji, the learned Counsel for two of the accused, wants to tender in evidence the Coroner's inquisition based on the verdict of the jury at the inquest. The learned committing Magistrate admitted it in spite of the objection urged on behalf of the prosecution. He held it to be relevant under Section 42 of the Indian Evidence Act as a judgment in rent, relating to a matter of a public nature, relying upon the following observation in para. 1767 on p. 1111 of Taylor on Evidence (twelfth edition):The general admissibility of inquisitions rests upon the ground that they contain the result of inquiries made under competent authority concerning matters in which the public is interested.2. This may apply to inquisitions like 'the survey and report made by a surveyor in discharge of a duty imposed upon him by statute', as held in Evans v. Merthyr Tydfil, Urban Council [1899] 1 Ch. 241. The learned Magistrate has a...
Tag this Judgment!Ashrafalli Cassamalli Vs. Mahomedalli Rajaballi
Court: Mumbai
Decided on: Aug-20-1945
Reported in: (1946)48BOMLR642
Chagla, J.1. This is a suit for the administration of the estate of one Cassim Ali Jairazbhoy. He died on June 8, 1938, leaving behind him his widow (defendant No. 5) and six sons (the plaintiff, defendants Nos. 6, 7, 8, 9 and 10). Defendant No. 11 is his grandson by his son, defendant No. 6. Defendant No. 12 is his mother. Defendants Nos. 1 to 4 are the executors of his will dated October 15, 1934.2. Counsel have informed me that the various matters in dispute in suit between the parties have been settled, and the decision of the Court is only sought on the question of the construction of Clause 6 in the will of the deceased.3. The will left by the deceased is a very short document. By Clause 1 he appoints defendants Nos. I to 4 his executors and trustees. Clause 2 is an interpretation clause as to what the expression 'trustees' signifies. Clause 3 contains several pecuniary legacies given by the deceased. By Clause 4 he makes two specific bequests of two of his properties to one of h...
Tag this Judgment!Ashrafalli Cassamalli Vs. Mahomedalli Rajaballi and ors.
Court: Mumbai
Decided on: Aug-20-1945
Reported in: AIR1947Bom122
Chagla, J.1. This is a suit for the administration of the estate of one Cassim All Jairazbhoy. He died on 8-6-1938, leaving behind him his widow (defendant 5) and six sons (the plaintiff, defendants 6, 7, 8, 9 and 10). Defendant 11 is his grandson by his son, defendant 6. Defendant 12 is his mother. Defendants 1 to 4 are the executors of his will dated 15-10-1934. Counsel have informed me that the various matters in dispute in suit between the parties have been settled, and the decision of the Court is only sought on the question of the construction of Clause 6 in the will of the deceased.1a. The will left by the deceased is a very short document. By Clause 1 he appoints defendants 1 to 4 his executors and trustees. Clause 2 is an interpretation clause as to what the expression 'trustees' signifies. Clause 3 contains several pecuniary legacies given by the deceased. By Clause 4 he makes two specific bequests of two of his properties to one of his sons. By Clause 5 he makes a bequest of...
Tag this Judgment!Waman Vinayak Paranjpe Vs. Narayan Hari
Court: Mumbai
Decided on: Aug-15-1945
Reported in: AIR1946Bom363; (1946)48BOMLR193
Sen, J.1. This is an application by one of the defendants in a suit filed in the Court of the Second Class Subordinate Judge (as he then was) at Roha. The plaintiff-opponent alleged that he was the son of Hari, the adopted son of Narayan, Narayan being one of the two sons of Ballal and the other son of Ballal being one Antaji, whose wife was Laxmibai, that Laxmibai, after Antaji's death, had sold property purporting to be Antaji's property in 1912 for Rs. 2,000 and that as the two brothers, Atvtaji and Narayan, had not separated, he was entitled, as the sole surviving co-parcener, to the property which had been alienated by Laxmibai. Secondly, his case in the alternative seems to have been that even in case Antaji and Narayan had become separate, he was entitled to challenge the sale-deed, as not being based on legal necessity, after Laxmibai's death in 1930. His third alternative case was that the sale-deed which purported to have been effected by Laxmibai was in reality a mortgage an...
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