Court : Mumbai
Reported in : AIR1921Bom419; (1921)23BOMLR614
..... an objection was then taken before the learned judge that the defendants had made no application within the time prescribed by article 158 of the indian limitation act, and that objection found favour with the learned judge, so he held that no application could be said to have been made within the meaning of article 158 until either a notice of ..... award had expired on the 10th of april, both parties signed a consent order for an extension of the period, and that was handed into the prothonotary's office on the 12th, and in the ordinary course of events the prothonotary would have signed that order to which both parties had consented on the ..... of time must be made before the award has been delivered, and we do not think that the alteration which was made in para 8 of the second schedule, as compared with the corresponding section 514 of the code of 1882 makes any difference in that ..... a matter of fact it had been contended that under section 514 once the period had expired, it could not be extended, but the decisions of the indian courts were to chhaganlal the effect that in spite of the wording of section 514, the period could be extended before the award had been delivered, and those decisions were given effect to by the decision i ..... the award lies in their contention that at the time the award was made the period allowed to the arbitrators by the court for making the application had expired and that therefore any extension after the award had been made would not validate the award. .....
Tag this Judgment!Court : Mumbai
Reported in : (1921)23BOMLR482
..... to rely upon a permissive text, which enables either the father or the mother to give in adoption, for the purpose of ustifying the mother's act of giving in adoption her son by her first husband after her remarriage, seems to me to be opposed to the fundamental principles of hindu law. ..... the judgment of the full bench is in terms based upon the rule of stare decisis and does not indicate that the view taken of the widow's right to inherit her son's estate after her remarriage is necessarily in accordance with hindu law. ..... the second question referred to us is whether, assuming that the widow after having remarried has such power, it can be exercised, considering that the person giving and the person taking the boy in adoption would be the same individual. ..... these smriti writers did not permit any remarriage of a, hindu widow, and did not provide for the case such as we have before us. ..... here, again, i may say that the position contemplated by the question is never contemplated by the hindu law writers, and appears to me to be opposed to the theory of adoption, which implies giving and taking as distinct acts. ..... justice ranade in the judgment to which 1 have already referred, and i desire to express my agreement with the opinion that the widow's power of giving in adoption her son by her deceased husband comes to an end on her remarriage.3. ..... the court directs that the costs of the appeal be taxed on rs. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1921Bom367; (1921)23BOMLR492
..... if then, the plaintiffs are the successors-in-title of the cultivators who were in occupation of the suit lands in 1841 when the sanad was granted, and if those cultivators at that time would have had a right of action against the east india company, in the event of their being dispossessed, to assert their rights as occupants, then it would appear that any order made at ..... the case, therefore, must be remanded to the lower court to enable the plaintiffs to have an opportunity of showing that their predecessors-in-title were in occupation of the suit land at the time of the grant of the sanad, and that they had the right to remain in occupation as long as they paid assessment, and that if they had been dispossessed they would have had a right to file a suit against the east india company. ..... no doubt the plaintiffs would have to get the collector's order set aside in order to get possession of the lands which they claimed to hold as occupants, and clearly it would be a suit to set aside or avoid an order under bombay act iii of 1874 passed by an officer of government duly authorised. ..... down therefore, will be this:- whether the individuals cultivating the suit lands in 1841 had such rights of occupancy that if dispossessed by the east india company, they would have had a right to sue the company on account of such dispossession? ..... 1 : is the suit barred under section 4(a) of the bombay revenue jurisdiction act? .....
Tag this Judgment!Court : Mumbai
Reported in : (1921)23BOMLR189
..... it has been argued that as this was an appellate side matter, the costs should be taxed under section 7 of the legal practitioners' act i of 1846, which would only give the winning party one-fourth of the 'costs which would have been incurred if this matter had been a regular suit decided on its merits. ..... , the right of the adopted son to succeed as dependent on the validity of the summary settlement, was one which, but for the bombay revenue jurisdiction act, would have been decided in a suit in a mofussil court, and would have come to this court, in appeal in its appellate jurisdiction. ..... certainly that section was not intended to provide for references of a peculiar nature, as this reference is, and it was really intended, in my opinion, to provide for all other cases arising within the trial of regular suits.3. ..... it was in fact so presented, and in the absence of any directions by the court, i think, the taxing master was right in taxing all the costs of the reference according to the rules on the appellate side of this court. ..... still sir lawrence jenkins said :the principle and rule of taxation ought (in our opinion) as far as possible to be such as to secure that the successful party should recover from his opponent such costs as are necessary to enable him to place his case properly before the court, and this can best be secured by adopting the actual value as the basis of taxation.6. .....
Tag this Judgment!Court : Mumbai
Reported in : (1922)24BOMLR682
..... he sets out the contract of december 18, 1903; he refers to the fact that the sites allotted in 1902 had been duly transferred and alleges that ten out of the twelve sites had been received in 1903, and he concludes in this way: 'out of these'-that is out of the ten for 1903-'the plaintiff' asked the defendant to deliver three sites which still remained due to the plaintiff, but ..... the rights of equity which prevail in british burma are rights which are given to people who are vigilant and not to those who sleep, and, unless there can be clearly established some reason which threw upon the defendant the entire blame for the delay that had occurred, or unless, indeed, it can be shown that ..... section 153 of that code enacts that 'the court may at any time and on such terms as to costs or otherwise as may think fit amend any defect or error in any proceeding in a suit ; and all necessary amendments shall be made for the purpose of determining the 1 real question or issue raised by or depending on such poceeding' and by order vi, rule 17, 'the court may at any stage of the proceedings, allow either party to alter or amend his pleadings in such manner and ..... think that there was at that date a refusal and that consequently, in any circumstances, the indian limitation act would have prevented this suit from being instituted on ..... as their lordships have already expressed their view that the indian limitation act defeats the suit, it is, therefore, unnecessary to add anything further .....
Tag this Judgment!Court : Mumbai
Reported in : (1921)23BOMLR350
..... questions to the high court, as it would have been open to the magistrate to send the papers to government with his decision for it is really a matter for the legislature to decide whether section 40 of the bombay city police act should be amended so as to bring it into line with sections 127 and 128 of the criminal procedure code, all that the court can do is to lay down what the law is, not what it ought to be.shah, j.4. ..... member of an unlawful assembly has been commanded in the manner prescribed by law to disperse that he could be found guilty under section 145, indian penal code, it seems clear that a member of an unlawful assembly who his been commanded by a magistrate to disperse cannot be convicted under that section; nor does the language of section 151, indian penal code, make any difference, although the word 'lawfully' is used instead of 'in the manner prescribed by law ..... the criminal procedure code, in which section 127 appears, was repealed by the bombay city police act iv of 1902, and sections 127 and 128, criminal procedure code, were replaced by section 40 of that act. ..... unlawful assembly to disperse is an officer in charge of a section; and under section 55 a police officer of superior rank, if on the scene, might perform the, duty of the officer in charge of a section. ..... and thirty-three others, have been referred for the opinion of the high court under section ..... placed by the learned chief presidency magistrate on section 40 of the bombay city police act is correct. .....
Tag this Judgment!Court : Mumbai
Reported in : (1921)23BOMLR570
..... i would say that the question whether income can be said to accrue or arise in british india would ordinarily be a question of fact, but whether income accruing outside british india can be taxed as accruing in british india because the company is registered in british india is a question of law and certainly falls within the purview of section 51 of the indian income tax act.6. ..... chief revenue authority under section 51 of the indian income tax act (vii of 1918). ..... the chief revenue authority is of opinion that these profits must be taxed because it was expressly intended by the legislature by the present income tax act to alter the law, and in effect to tax the profits derived from a business carried on outside british india as if they had accrued or arisen in british india, wherever the business was controlled by a company or an individual ..... has arisen between the company and the income tax authorities is whether the profits of the company which were made from the manufacture carried on at aurangabad can be said to accrue or arise in british india on account of the head office being in bombay and because the directors control the ..... fact of the entries being made for the purpose of proper account-keeping would not entitle the collector to treat the profits as having been received in british india within the meaning of section 3(1) of the act.9. ..... in british india in virtue of the entries having been made in respect of such profits in the accounts of the company kept in british india. .....
Tag this Judgment!Court : Mumbai
Reported in : (1921)ILR45Bom1286
..... in answer to the 3rd question i would, say that the question whether income can be said to accrue or arise in british india would ordinarily be a question of fact, but whether income accruing outside british india can be taxed as accruing in british india because the company is registered in british india is a question of law and certainly falls within the purview of section 51 of the indian income tax act.6. ..... this is a reference made by the chief revenue authority under the income tax act, bombay, under section 51 of the indian income tax act (vii of 1918). ..... the question which has arisen between the company and the income tax authorities is whether the profits of the company which they made from the manufacture carried on at aurangabad can be said to accrue or arise in british india on account of the head office being in bombay and because the directors control the business in bombay. ..... it is clear that the mere fact of the entries being made for the purpose of proper account-keeping would not entitle the collector to treat the profits as having been received in british india within the meaning of section 3(1) of the act.9. ..... has not been pressed before us, that the profits which have arisen or accrued at aurangabad must be taken to have been received in british india in virtue of the entries having been made in respect of such profits in the accounts of the company kept in british india. .....
Tag this Judgment!Court : Mumbai
Reported in : (1922)24BOMLR687
..... the learned subordinate judge, in their lordships' opinion, misread the third paragraph of section 55 ; that paragraph is as follows :if, in case of a contract voidable on account of the promisor's failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than that agreed, the promisee cannot claim ..... in an action for non-delivery or non-acceptance of goods under a contract of sale the law does not take into account in estimating the damages anything that is accidental as between the plaintiff and the defendant, as for instance an intermediate contract entered into with a third party for the purchase or sale of the goods ..... complicated by the necessity of considering section 17 of the statute of frauds and section 4 of the sales of goods act, but in the indian contract act there is no section analogous to this. ..... the contract as originally made, held that the fault in non-delivery by that date lay with the appellant, who never had 4000 sleepers ready for delivery by that time, and could not excuse himself, because at one particular station of the railway there was no room to lay out 4000 sleepers at one time. ..... that when in the month of december the respondents alleged non-performance, and maintained that they would claim the penalty, that was equivalent to putting an end to the contract on their part, and he gave judgment for a return of the deposit and for damages calculated on the profit which would have accrued in respect of .....
Tag this Judgment!Court : Mumbai
Reported in : (1922)24BOMLR692
..... sale certificate was dated july 25 of the same year, and it included 'the whole of the pannai lands belonging to and enjoyed by the sons of the first defendant, who acquired them as legal representatives of the first defendant' and all incomes, rights and privileges attached to the zamindari.4. ..... the learned judges of the high court appear to regard the words set out as capable of explanation and limitation by reference back to the mortgage itself; but their lordships are unable to accede to this ..... decree for the realisation of the mortgage set out the villages and hamlets, and directed their sale with all 'the pannai lands belonging to the defendants and in their enjoyment,' and the sale proclamation followed the words of the decree. ..... but this they have never done and it is now too late. ..... certificate that are capable of explanation by such means, and the object of the sale certificate would be defeated if it were possible to change its plain meaning by reference to other documents the rights of the mortgagors, however, need not have been taken away by this fact as they were at liberty to have taken proceedings in the suit in order to raise the contention that they now put forward under section 47 of the code of civil procedure, 1908, .....
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