Court : Mumbai
Decided on : Oct-08-1935
Reported in : AIR1936Bom88; (1936)38BOMLR34
..... . 1 from his obligations under the covenants in the lease is not sustainable, even if evidence on the subject can be given in view of proviso 4 to section 92 of the indian evidence act.10. then the second point which arises is as to whether the plaintiffs can sue defendant no. 1 on his covenants in the lease, whether, that is, the right ..... was not, any such agreement, it would, in my opinion, have not been open to defendant no. 1 to give such evidence, having regard to proviso (4) to section 92 of the indian evidence act, inasmuch as it would amount, in my opinion, clearly to a subsequent oral agreement to rescind or modify a contract, grant or disposition of property, where the contract ..... converting this action into two actions by different plaintiffs against different defendants, and, in my opinion, we are not justified in doing that. i think, therefore, that the leave to amend must be refused, and that being so, it is not necessary or proper in this suit to consider what the rights may be as between plaintiff no. 6 and defendant ..... old forms of pleading would have been in covenant. the mere acceptance of rent from the assignee cannot affect the question, because the assignee normally pays the rent after assignment.9. the learned judge, i would add, does not really dispute that proposition. but he holds that there is in this case something beyond the assignment, namely a release of the .....
Tag this Judgment!Court : Mumbai
Decided on : Jul-01-1935
Reported in : (1935)37BOMLR955
..... , chief justice, based his finding on a legislation of 1926 and 1927. the head-note runs :-the amendment made by act xxvii of 1926 in the definition of the word 'attest' in section 3 of the transfer of property act, 1882, has been given a retrospective effect by act x of 1927.13. in yakubkhm v. guljarkhan (1927) 30 bom. l.r. 565, which was an ..... -which are not very plain-he gave the defendants an option of paying compensation instead of giving up the land, and decided that the amount of compensation proper was rs. 9,377.4. this appeal has been filed by the society and by ramanlal. the secretary of state is shown as respondent no. 2. the rights of the parties depend on ..... act, 1912.the learned subordinate judge has, as i have said, followed the decision of this court that this society ..... illegal, since in his opinion the society was not a ' company ' within the meaning of the land acquisition act. a 'company' is denned in section 3 (e) of that act-the expression company means a company registered under the indian companies act, 1882, ... and includes a society registered under the societies registration act, 1860, and a registered society within the meaning of the co-operative societies .....
Tag this Judgment!Court : Mumbai
Decided on : Nov-26-1935
Reported in : AIR1936Bom172; (1936)38BOMLR164
..... property, whether it is one's own, or somebody else's. it seems to me, therefore, on the wording of sections 378 and 425, indian penal code, that these two acts are distinct offences and that the intention to cause wrongful loss by the destruction of property is different from the intention to ..... has been taken in emperor v. ramla ratanji is not correct and that, at any rate, that decision has ceased to have force after section 35 of the criminal procedure code was amended in 1923 by deleting the word ' distinct' between the words 'two or more' and ' offences.' in the above case, no reasons ..... be punished separately for the offences of theft and mischief. no reasons are given in the judgment for this view, and in view of the amendment of section 35, criminal procedure code, which has been pointed out by the learned government pleader, it is no longer binding on us.13. the question we have ..... cause wrongful loss by its mere removal from a person's possession.9. it may be noted that sections 428 and 429 ..... subsequently killing it and thereafter it is killed, the legal position would not be different.10. it may also be noted that the present section 35 of the criminal procedure code does not contain the word 'distinct' which the previous section 35 did. it says : ' when a person is convicted at one trial of two .....
Tag this Judgment!Court : Mumbai
Decided on : Mar-08-1935
Reported in : AIR1935Bom347; 158Ind.Cas.151
..... made by the governor-general in legislative council, because it affects the prerogative of the grown.10. this also does not seem to extend the powers of a provincial legislative authority to make laws affecting the crown. this act however was followed by the amending act of 1916, section 2 (2) of which provides that after the words 'governor-general in legislative council' the words ..... be invalid by reason only that the same affects any prerogative of the crown, but that saving provision does not extend to the act of any local legislature. a similar provision is to be found in section 24, indian councils act, 1861. there is therefore undoubtedly force in the contention of the advocate-general that in the year 1888 the local legislature had no ..... the bombay act 3 of 1888 is ultra vires the local legislature inasmuch as it affects the prerogative of the crown. in hiranand kirpalani v. secy ..... of the act imposing taxation on land in bombay including government land. i think therefore the judgment appealed from was right, and the appeal must be dismissed with costs, with the variation that the provisions about costs and interest in the judgment should be struck out.ramgnekar, j.9. i agree. the first question raised by the appellant is that section 212 of .....
Tag this Judgment!Court : Mumbai
Decided on : Mar-08-1935
Reported in : (1935)37BOMLR499; 158Ind.Cas.824
..... affects the prerogative of the crown.this also does not seem to extend the powers of a provincial legislative authority to make laws affecting the crown. this act, however, was followed by the amending act of 1916, section 2 (2) of which provides that after the words ' governor-general in legislative council' the words ' or a local legislature ' should be inserted, and the rival ..... the contention that the whole intention of the legislature was to make section 84 as also section 2 (2) of the amending act of 1916 applicable to the laws which any authority in british india might make in the future. i am, therefore, clearly of opinion that the act of 1888 was intra vires.9. the next question is whether the crown is bound by the ..... invalid by reason only that the same affects any prerogative of the crown, but. that saving -provision does not extend to the act of any local legislature. a similar provision is to be found in section 24 of the indian councils act, 1861. there is, therefore, undoubtedly force in the contention of the advocate general that in the year 1888 the local legislature had ..... scheme of the act and the other sections in this particular chapter, which deals with the question of taxation. this question has been dealt with in the judgment which has been delivered by my lord the chief justice, and as i entirely agree with it, i do not think it necessary to go into any detailed discussion on this question.10. the whole .....
Tag this Judgment!Court : Mumbai
Decided on : Feb-21-1935
Reported in : (1935)37BOMLR544
..... their lordships' opinion, a confusion of thought upon the subjects of estoppel and waiver.22. the question of estoppel is governed by section 115 of the indian evidence act, which for the present purpose seems to their lordships not to differ from the law in england in regard to estoppel in pais.23 ..... , 1933, a memorandum of appeal was presented by the plaintiffs and an application was made by them praying that the cause title might be amended. this was acceded to by an order of the high court, and the title of the proceedings on the hearing of the appeal disclosed the ..... september 29, 1930. subsequently the bank went into voluntary liquidation, and mr. laurence dawson and mr. heaton were appointed liquidators. thereupon the plaint was amended by striking out the name of the bank as second defendant, and inserting the name of mr. laurence dawson as second defendant and the name of ..... japan, 554, merchant street, rangoon, represented by their manager mr. t, saito ... appellant (plaintiff). versusdawsons bank ltd., a public company incorporated under the indian companies act having its head office at pyapon by its secretary hugh dawson... respondents (2nd & 3rd defendants).36. by its operative part it provides for a decree 'against ..... of 150 bags was the subject-matter of a similar delivery order and invoice dated may 10, 1930, payment of the invoice price (rs. 1,780-13-0) being made to saw kai on may 11, 1930.9. saw kai, having received the money, absconded without having paid off the bank's .....
Tag this Judgment!Court : Mumbai
Decided on : Mar-04-1935
Reported in : AIR1935Bom385; (1935)37BOMLR642; 159Ind.Cas.533
..... it will then be necessary to consider certain adjectival difficulties.13. the central position amongst the sections relevant to the present case is occupied by section 323 of the indian succession act (xxxix of 1925) which reproduces section 282 of act x of 1865. section 323 runs : ' save as aforesaid,'- viz., save as to the payment first of funeral ..... the debts of all the creditors liquidated therefrom without priority, and equally and rateably as far as the assets of the deceased extend : indian succession act, section 323 and section 360, proviso.5. it is admitted that the executrix committed a breach of the duty of equal and rateable payment of debts. the personal ..... creditor's action against a deceased person's estate as an administration suit and insisting upon the amendment of the plaint in such a suit on that basis. where the plaintiff is not willing to amend, the court if it finds the claim proved, should pass a decree simply giving him a ..... suffered because of the unsubstantial character of the debtors as well as the disappointing values realised by the securities on which the debts had been advanced.9. finally, in regard to the tangible assets possessed by the deceased, an inflated value was put on the village of ara. in accordance with ..... filed on january 6, 1926. the total assets as therein stated were rs. 27,01,756-10-3 and the debts rs. 23,82,153-1-0 leaving the net assets of rs. 3,19,603-9-3.2. during the time that bai vejbai was administering the estate, defendant no. 1, .....
Tag this Judgment!Court : Mumbai
Decided on : Sep-25-1935
Reported in : AIR1936Bom408; (1936)38BOMLR823; 165Ind.Cas.994
..... for payment of money, which incidentally is no longer called a penalty, but also in the alternative for damages and injunction. the same provision is made under section 53 of the indian act of 1911. as section 53 makes up a self-contained code, it would be arguable whether by electing to claim payment of the sum of rs. 1,000, and not to ..... written statements within a fortnight after the plaintiffs have made the election and amended the plaint, and intimated' the same to the defendants.10. i have heard counsel on the question of the costs of the two summonses my attention was drawn to two letters dated august 19 and ..... . 1320, at p. 742, in his first edition of 1913, which was long after the english act of 1907.9. i, therefore, order the plaintiffs to make the election which i have, mentioned before within a month from to-day. the plaintiffs will make the necessary amendments in the plaint in each suit at their own cost. defendants to put in their respective ..... on the notices of motion, and that he made the admission only for the purposes of these two suits. there is a clear authority both in sounders v. wiel (1892) 9 r.p.c. 459 and titus astle, ltd. v. mansfield (1905) 22 r.p.c. 356 that a proper application can be made in chambers to the chamber judge to .....
Tag this Judgment!Court : Mumbai
Decided on : Nov-27-1935
Reported in : AIR1936Bom301; (1936)38BOMLR593
..... it. he was then seventy-five years old and s presumably now dead. his deposition has been put on the record exhibit l05, and it is admissible under section 33 of the indian evidence act. exhibit 138 which is relied on in support of exhibit 136 is also a copy, and in this case there is no proof whatever of the original. no ..... to be clear. clause (b) of the prayer in the plaint in this suit, as it stands, would, therefore, be clearly barred by section 4 of the revenue jurisdiction act. but the plaintiff has put in an application for amendment by which he asks only for a declaration that as the deceased giriyeppa was the nearest heir to ningangauda dod-irangauda, the plaintiff ..... jurisdiction of the civil courts to decide disputes between persons claiming to be watandars inter se, as to their status in the watan family. section 36 of the bombay hereditary offices act, both before and after its amendment in 1910, contemplates a decree of a civil court as a matter which has to be taken into consideration by the collector in determining whose ..... heir to ningangauda finding in the negative. (8) if not, can plaintiff be the heir to the suit property? finding in the negative. (9) is defendant no. 2 the validly adopted son of baslingappa finding in the affirmative. (10) is he entitled to claim any part of the watan property of masuti? finding in the affirmative. (11) is the suit in time .....
Tag this Judgment!Court : Mumbai
Decided on : Dec-20-1935
Reported in : AIR1936Bom423; (1936)38BOMLR864
..... which he is obliged to discharge, he may compel the legatees to refund : see doe v. guy (1802) 3 east 120, 123; (cf. section 359, indian succession act). a creditor's primary remedy lies against the executor and not the legatee. the court of chancery, however, in order to do justice and to avoid the ..... grant the application would deprive the defendants of a vested right of pleading limitation against the plaintiff, and no court under such circumstances would grant the amendment. but the fact remains that the plaintiff himself admitted in his evidence that the moneys became due on october 1, 1926, and that he went ..... east india cotton association could not ripen until may, 1927, as the contract was of april-may 1927 vaida. he then applied formally for leave to amend the plaint and stated that the plaintiff's debt became due in may, 1927. the application was opposed. it seems to me that, having regard ..... a creditor's action against a deceased person's estate as an administration suit and insisting upon the amendment of the plaint in such a suit on that basis. where the plaintiff is not willing to amend, the court if it finds the claim proved, should pass a 'decree simply giving him a ..... notice of motion in the administration suit for a relief similar to that prayed for by defendants no. 9 in their chamber summons. this notice of motion was heard, and the claim of defendants no. 10 was referred to the commissioner for taking accounts to investigate the said claim. by an order made on .....
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