Court : Mumbai
Reported in : (1906)8BOMLR402
..... regulation vii of 1822 was repealed, as regards the north-western provinces, by act xix of 1873, and it is to be observed that this act, while providing, in the 62nd and following sections, for the maintenance of a careful ' record of rights' in each mahal, no longer included a record of ' local usages connected with landed ..... the result of the litigation in india was to set aside the adoption as invalid according to hindu law ; but the high court at allahabad gave the plaintiff a decree for halt the property claimed, on the ground that the clause in the wajib-ul-arz upon which the plaintiff relied was ' a document of a testamentary nature,' under which it was the intention of dhanraj ..... ardha chunder roy (1892) l9 i.a.101, in which the will was made prior to adoption, and the bequest was to the lad by name, for reasons independent of adoption though likely to lead to it; nor does it come within the ruling of this committee in the case of nlidhoomoni debya v. ..... ' this is not a gift to murli dhar personally, but a division of the estate according to the family custom which dhanraj was endeavouring to establish, and according to which the adopted son was to take ..... they were directed to be made by regulation vii of 1822,' the 9th section of which enacts that-it shall be the duty of collectors and of her offcers exercising the powers of collectors, on the occasion of making or revising settlements of the land revenue, to unite with the adjustment of the assessment and the investigation .....
Tag this Judgment!Court : Mumbai
Reported in : (1906)8BOMLR770
..... section 25, the first section in this part of the act, provides that a man is considered to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect ..... and so it is in this case on the consequences that flow from the doctrine of parcenership-for, parcenership does not only influence the rights that arise on death-and not on inheritance or its results that the appellants rest.12 ..... but inasmuch as section 46 is incorporated in the hindu wills act it might be argued from tellis ..... it is, therefore, necessary for us to proceed under section 566 of the civil procedure code ..... 80 that section 93 of the succession act actually recognizes a joint tenancy with the right of survivorship ..... was in that case determined that coparcenership and the right of survivorship are incidents peculiar to hindu law, which law so far as it affected native christians was repealed by the succession act. ..... parties will be at liberty to adduce evidence on this point, and if the 2nd issue be answered in the affirmative, then, we must ask for a fresh finding on the 3rd, 5th and 6th issues.27. ..... but by what part of the succession act was this repeal affected? ..... thus section 25 can only refer to property of the intestate, and reading sections 25 and 46 together heritable and testable property are apparently ..... this does not destroy the rule of survivorship any more than it extends rights on intestacy to property in which the intestate had but a life estate.20. .....
Tag this Judgment!Court : Mumbai
Reported in : (1906)8BOMLR904
..... throughout the bombay presidency in matters relating to the land revenue, and for other purposes,' in the preamble of which the sentence already quoted appears, we find repeated a provision that a suit in which the government or any officer of government in his official capacity is a party shall be instituted in the court of the district judge alone, subject to the provisions of section 19 of act xiv of 1869 with which section we are not concerned in this reference, otherwise than to show that it is the ..... i do not feel pressed by the argument that if this view is correct it was unnecessary to amend section 32 by the act x of 1876, section 15, by including courts of small cause in the first part of section 32 of act xiv of 1869, first because amend-ments are often made to remove doubts and not to indicate any change in the original intention of the legislature. ..... bombay act iii of 1876 repealed clause 2, section 1, of act xvi of 1838 and bombay act v of 1864, and stated that ' mamlatdar' includes any revenue officer ordinarily exercising the powers of a mamlatdar and any other person who may be specially authorized etc.17. ..... this regulation defines the duties of the collector and his powers in regard to the subordinate revenue officers ; and section 6(clauses 1) provides that 'all collectors of the revenue, their assistant, and native officers, shall, with respect to acts done by them in their official capacities, be subject to the jurisdiction of the zilla civil court. .....
Tag this Judgment!Court : Mumbai
Reported in : (1907)9BOMLR323
..... the first court refused to set aside the decree on the ground that the application for that purpose was beyond time and also on the ground that summons had been duly served.3. ..... 56, that whore the decree is against two defendants and the decree is executed against one only then that is not an execution of process for enforcing judgment against the other within the meaning of article 164.6. ..... now the article of the limitation act which governs such an application is 164 which provides that ' an application by a defendant from an order to sot aside a judgment ex paste must be brought within 30 days from the date of executing any process for enforcing the judgment.'5. ..... the district court confirmed the determination of the court of first instance on the ground that the application under section 108 was beyond time.4. ..... hero there have been two applications for execution but in each the persons against whom execution was sought were stated to be defendants 1 and 2 and not defendant 3 who is the present applicant.7. ..... this application arises out of a refusal by the lower appellate court to set aside an ex parte decree under section 108.2. ..... we must make the rule absolute and send back the case for determination by the district court.9. .....
Tag this Judgment!Court : Mumbai
Reported in : (1907)9BOMLR359
..... very different thing from holding that no evidence of cruelty can be admitted in a proceeding under the section to prove, not indeed cruelty as a ground for separate maintenance, but the conduct and acts of the husband from which the court may draw the inference of neglect or refusal to maintain the ..... a husband has not refused ox neglected to maintain his wife, a criminal court, acting under the section, has no jurisdiction to make an order upon the husband for her maintenance on the ground that the husband has been guilty of cruelty to her. ..... the intention of the legislature in enacting a particular provision in a statute, it is a canon of interpretation that we must have regard to the language of the whole section and not confine ourselves to its words detached from the whole of the context. ..... a wider discretion to the court, which means that in passing such an order it is legitimate for it to take into account the relations between the husband and the wife and the husband's conduct ..... the section has been altered and now the court can pass an order for maintenance where neglect or refusal is proved, even if the husband is willing to maintain the wife, provided the court finds that there are 'just grounds for' ..... , dealing with section 536 of act x of 1872 ..... as section 488 originally stood, it entitled the court to pass no order for maintenance even where refusal was proved, if the husband was willing to take the wife back and maintain her, provided the court was satisfied that the husband .....
Tag this Judgment!Court : Mumbai
Reported in : (1907)9BOMLR363
chandavarkar, j.1. the wording of clause (4) of section 349b is not free from ambiguity and there is considerable force in what mr. setalvad has suggested as its proper construction. but assuming, without deciding, that that is the only construction of which the clause is susceptible, the act complained of as a breach of the law on the part of the petitioner must, we think, fall within the other clauses of section 349b. mr. setalvad argues that as his client's building is situate between two streets running parallel, this is a case unprovided for in the act. in other words, according to the argument, it is a casus omissus. r but it is not permissible to create a casus omissus by interpretation save in some case of strong necessity-see per lord fitzgerald in mersey docks and harbour board v. henderson brothers (1888) 13 app. cas, 595 607 and taking a reasonable view of it, we think a building of this kind must at all events fulfil the conditions prescribed in clauses 1, 2 and 3 with reference to both the streets on which it abuts, even if it does not fall within clause (4) of section 349b. these provisions of the act are intended in the interests of public health, and the court ought to construe them so as to advance that object. under these circumstances the conviction and sentence can be supported upon the grounds above stated, if not on those on which the magistrate has proceeded. the application must, therefore, be rejected.
Tag this Judgment!Court : Mumbai
Reported in : (1907)9BOMLR606
..... and, secondly, if the section conferred on executors in this case the very large and irresponsible powers contended for, the section has by implication so far boon repealed or modified by subsequent legislation in the trust act of 1882 as to make that power subject to the restrictions, ..... for the administration of the estate of one mahomedali who died on 18th december 1896, (2) for the setting aside the sale to the first defendant, an executor of mahomedali's, of mahomedali's interests in a partnership, (3) for the ascertainment for the true value of that interest at date of mahomedali's death and for the profits made by the first defendant's use in his business of mahomedali's moneys, (4) for an account against both defendant 1 and defendant 2, executors of mahomedali, on the footing of wilful default and (5 & 6) for ..... plaintiff claims rescission of a contract on the ground that the defendant, when the contract was entered into, owed a duty to him, it is only necessary for the plaintiff to prove the existence of the duty and the burden is then thrown upon the defendant of showing that he made such disclosure as is necessary to support ..... is evident that where the surviving partner is the purchaser of a testator's share from an executor who has no interest except as executor in the transaction, it is the duty of the surviving partner, even though he is not himself one of the executors, to make full disclosure and to remove all inequality of knowledge that might otherwise exist between .....
Tag this Judgment!Court : Mumbai
Reported in : (1907)9BOMLR1028
..... it can be justified only by an act of parliament; and that act is repealed without any saving, then, can the court for the present purpose take notice of the repealed act t the answer is that what has been done and perfected cannot be disturbed; but, if you want the statute for a further purpose, as that of giving judgment, you cannot have it ..... be called a mamlatdar's court and which shall, subject to the provisions of sections 6 and 26, have power, within such territorial limits as may from time to time be fixed by the governor in council, to give immediate possession of any lands or premises used for agriculture or grazing, or trees, or crops, or fisheries, or to restore the use of water from any well, tank, canal or watercourse, whether natural or artificial, used for agricultural purposes to any person who has been dispossessed or deprived thereof ..... we cannot think that the plaintiff in the present case can be said to have any 'right, privilege or obligation ' to have his case finally decided in the mamlatdar's court within the meaning of those words in section 7 of the bombay general clauses act i of 1904, which is identical with the corresponding section of the general clauses act x of 1897. ..... decisions are contrary to the original object and intention of the act and it is considered that possessory disputes arising in towns and cities can better be disposed or: by the civil courts, either summarily under section 9 of the specific relief act, (i of 1877), or in ordinary suits. .....
Tag this Judgment!Court : Mumbai
Reported in : (1907)9BOMLR1181
..... in the chapter on mortgages pledges and deposits, vijnaneshwara points out, in commenting on a snxriti of yajnyavalkya, that where mortgaged property in possession of a mortgagee is destroyed by fire or floods or any other act of god, the mortgagee is not responsible for its destruction and is entitled to sue at once, in spite of any terms to the contrary in the mortgage contract, for his money with interest there is no authority, however, given to a mortgagee to rebuild the property so as to bind the mortgagor against his will. ..... in the first, a widow, having sold certain land in which she had only a hindu widow's estate, the purchaser, treating the land as his, erected upon it a structure at his own expense. ..... the respondents, therefore, have to fall back upon the defence that the estate having benefited from what they did, the appellant should not be allowed to recover it without paying for the benefit they derive; and that because, 'he who seeks equity must do equity. ..... but here the respondents erected the building not as their own but as belonging to the estate of the son of bai mancha, which that lady, as their mortgagor, could redeem. ..... those circumstances, the erection having been treated by the respondents as property mortgaged to them by bai mancha without legal necessity, there is no equity arising in their favour as against the present appellant who, as reversionary heir to the estate, is entitled to recover it in the condition in which it was when the widow died. .....
Tag this Judgment!Court : Mumbai
Reported in : (1908)10BOMLR297
..... has been further contended before us that the suit in which the decree was passed was one which in virtue of the provisions of act xii of 1855 could have been maintained against the son, and that a fortiori the execution of the decree against him can be prosecuted ..... it was one which, the learned judge finds, did not confer any benefit upon the ancestral estate (or was not proved to have conferred any benefit); and these we must accept as-the findings of fact in the ..... act in obstructing the passage of water to the decree-holder's lands may not have been illegal in the usual sense of the term, that is to say, it may not have been committed in contravention of any express provision of the law; but the result of the suit shews that it was wrongful, and for a liability so incurred the son cannot be held answerable when the estate that has come to his hands has derived no benefit from the act.8 ..... the decree-holder caused his name to be brought upon the record under section 234, civil procedure code, as the legal representative of the judgment-debtor, and sought to proceed with the ..... the texts are :-vrihaspati:-'the sons may not be compelled to pay sums due by their father for spirituous liquors, for losses at play, for promises made without consideration, or under the influence of lust or anger, or suras for which he stood surety, or a fine or a toll, or the balance of either (of these) ', ..... this objection he was entitled to raise under section 244: see the similar case of umed hathising .....
Tag this Judgment!