Court : Kolkata
Reported in : AIR1924Cal115
Greaves, J.1. This is a reference under Section 5 of the Court Fees Act, 1870, for the purpose of determining the amount of the fees to be paid in respect of the grant of Letters of Administration in the above estate. Two questions are raised. The first is whether the Bengal Court Fees Amendment Act of 1922 (Act IV of 1922) is ultra vires. The second question is whether, assuming the Act is not ultra vires, the fee is to be levied at the enhanced rate prescribed by the Bengal Court Fees Amendment Act of 1922 (Act IV of 1922) on the whole estate, or whether the enhanced fee is payable only on that portion thereof which is situate in Bengal, the fee in respect of the assets outside Bengal being leviable at the lower rate prescribed by the Court Fees Act of 1870 as amended by subsequent Acts of the Imperial Legislative Council.2. On behalf of the Administrator-General of Bengal to whom a grant has been issued, and who has paid under protest the fee at the enhanced rate prescribed by Benga...
Tag this Judgment!Court : Kolkata
Reported in : 75Ind.Cas.466
Greaves, J.1. This is a reference under Section 5 of the Courts-Fees Act, 1870, for the purpose of determining the amount of the fees to be paid in respect of the grant of Letters of Administration in the above estate. Two questions are raised. The first is whether the Bengal Court-Fees Amendment Act of 1922 (Act IV of 1922) is ultra vires. The second question is whether, assuming the Act is not ultra vires, the fee is to be levied at the enhanced rate prescribed by the Bengal Court-Fees Amendment Act of 1922 (Act IV of 1922) on the whole estate, or whether the enhanced fee is payable only on that portiol thereof which is situate in Bengal, the fee in respect of the assets outside Bengal being leviable at the lower rate prescribed by the Court-Fees Act of 1870, as amended by subsequent Acts of the Imperial Legislative Council.2. On behalf of the Administrator-General of Bengal to whom a grant has been issued, and who has paid under protest the fee at the enhanced rate prescribed by Ben...
Tag this Judgment!Court : Mumbai
Reported in : AIR1923Bom284; (1923)25BOMLR289; 73Ind.Cas.304
Marten, J.1. This suit consists of a petition for divorce by the wife against her husband on the ground of his alleged adultery, cruelty and desertion, and a cross-petition brought by the husband against the wife and a co-respondent named Nicola Kandelaft asking for a divorce on the ground of the wife's adultery.2. On the wife's petition being called on and after I had read the two petitions, I asked counsel for the wife whether he was in a position to put his client into the box to deny the accusations against her which had been made in the husband's petition. They included in particular an allegation that the wife had travelled with the co-respondent in the same cabin from Bombay to Marseilles by the steamer Loyalty in December 1919 and that the only other occupant of that cabin was a small boy aged eight or thereabouts. Mr. Davar admitted that his client had travelled on that steamer and, after consulting his client, he told the Court that he was not in a position to call his client...
Tag this Judgment!Court : Mumbai
Reported in : (1923)ILR46Bom605
Walter Salis Schwabe, Kt., K.C., C.J.1. The question referred to the Full Bench is whether hi re Ramaswami Ayyar (1) was correctly decided.2. This is not a desirable form of reference to a Full Bench, because the facts of one case are seldom precisely the same as those of another and it is much better that the point on which the opinion of the Full Bench is desired should be formulated. In In re Ramaswami Ayyar I.L.R. (1921) Mad 913 a Village Magistrate arrested a drunken man whose conduct was at the time a grave danger to the public. In this case two police constables arrested a man who was drunk and creating disturbance, but to what extent he was a danger to others does not appear in the order of reference. The decision in In re, Ramaswami Ayyar I.L.R (1921) Mad 913 went on the ground that the English Common Law which is 'that for the sake of the preservation of the peace any individual who sees it broken may restrain the liberty of him whom he sees breaking it so long as his conduct...
Tag this Judgment!Court : Chennai
Reported in : 73Ind.Cas.343; (1923)44MLJ655
Walter Salis Schwabe, K.C., C.J.1. The question referred to the Full Bench is whether In re Ramaswamy Ayyar I.L.R. (1921) M 913, was correctly decided,2. This is not a desirable form of reference to a Full Bench, because the facts of one case are seldom precisely the same as those of another and it is much better that the point on which the opinion of the Full Bench is desired should be formulated. In In re Ramaswamy Ayyar I.L.R. (1921) M 913, a Village Magistrate arrested a drunken man whose conduct was at the time a grave danger to the public. In this case two Police Constables arrested a man who was drunk and creating disturbance, but to what extent he was a danger to others does not appear in the order of reference. The decision in In re Ramaswamy Ayyar I.L.R. (1921) M 913 went on the ground that the English Common Law which is ' that for the sake of the preservation of the peace any individual' who sees it broken may restrain the liberty of him whom he sees breaking it so long as ...
Tag this Judgment!Court : Mumbai
Reported in : (1923)ILR46Bom449
Schwabe, C.J.1. This Criminal Revision Petition has been ordered to be referred to a Full Bench by reason of a large number of similar oases pending in which decisions of Magistrates throughout the Presidency would be vitiated if the recent decision of this Court in In re Madura Muthu Vannian I.L.R. (1922) Mad. 820. was correctly decided.2. The facts are that the accused were charged by the police in a warrant case for receiving stolen property before the Second-class Magistrate of Paramakudi. The procedure adopted by him was the following:---Witnesses for the prosecution were examined. The accused being given the opportunity to cross-examine the witnesses when their examination was completed did not avail themselves of that opportunity. The accused were then questioned generally on the case for the purpose of enabling them to explain the circumstances appearing from the evidence against them, and they stated that they would put in a written statement. The Magistrate then, under Sectio...
Tag this Judgment!Court : Mumbai
Reported in : AIR1924Bom193; (1923)25BOMLR747; 84Ind.Cas.808
Marten, J.1. His Lordship, after narrating the history of the foundation, proceeded : I have dwelt on all these matters at some length not merely because they afford an answer to the appellant (the Acharya) out of his own words, but because they show a vital flaw in the appellant's title or claim to the properties themselves as private properties. All or practically all the suit properties were acquired before Laxmiprasad's deposition. If then it be said that they were the private property of Laxmiprasad, the appellant can only claim them in some way through Laxmiprasad. But Laxmiprasad released all his claims in the properties to the general assembly in return for a money payment. This release was not to the appellant. It was made before the appellant was even installed on the Gadi. Nor is the appellant the next of kin of Laxmiprasad. As I have already pointed out, Laxmiprasad left a minor son who endeavoured unsuccessfully to carry on the High Court Suit No. 365 of 1912.2. Counsel wa...
Tag this Judgment!Court : Mumbai
Reported in : AIR1923Bom208; 82Ind.Cas.27
Marten, J.1. The point in this appeal is one of the onus of proof as to the date of the death of one Baji. The suit is an ejectment suit. The defendants have been in possession under a Court sale since 1889. The plaintiff, who is the appellant, relies for his title on a conveyance in 1910 by one Dwarkabai, who was a sister of Baji. The suit was brought as long ago as February 1911, and has already been remanded once by the High Court for an amendment of the pleadings. On that amended case, the plaintiff's case is that Annapurnabai, the wife of Baji, was a widow at the date of her death in 1908, and that Dwarka accordingly was a reversioner, and the plaintiff sues in right of Dwarka as reversioner. A further amendment was asked for on the remanded trial, which will be found in paragraph 28 of the judgment of the learned Trial Judge, viz., to add Dwarka as a co-plaintiff. But that amendment was refused.2. Now the plaintiff is suing for possession, and the onus of proof is on him to make ...
Tag this Judgment!Court : Chennai
Reported in : 76Ind.Cas.741; (1923)45MLJ557
Walter Salis Schwabe, K.C., C.J.1. The question to be decided in this case is whether on a proper interpretation of the notification contained in the Fort St. George Gazette of May 5th, 1922 the rules imposing increased institution fees on suits on the Original Side of this Court apply the new scale to suits instituted on that day or not. The words of the notification are 'that the amendments do come into force from the date of publication in the Fort St George Gazette,' and the whole question is whether those words mean on and after that date, including May the 5th, or after that date excluding May the 5th.2. The matter has been most fairly and clearly argued by the Advocate General for the Crown and Mr. V.V. Srinivasa Iyengar for the litigants, and I have also had the opportunity of studying and considering the judgments of my brothers, who take different views on this matter. I approach-this matter conscious of the salutary rule that, in all statutes imposing taxation, any real ambi...
Tag this Judgment!Court : Mumbai
Reported in : AIR1923Bom218; 76Ind.Cas.317
Marten, J.1. This is an appeal under the Letters Patent from the order of Mr. Justice Shah, dated 13th December 1921, dismissing the defendants' appeal against the order of the District Judge of Poona who directed the Subordinate Judge of Vadgaon to proceed with the execution of the decree under Darkhast. No. 29 of 1919.2. The question is one of limitation and concerns, primarily, Section 14, Sub-section (2) and Article 182(5) of the Indian Limitation Act. To explain it, I will state shortly the material facts. The suit was an ejectment suit brought in 1906, and on the 27th November 1907 the plaintiff obtained a decree for possession in the Vadgaon Court. I understand from Counsel that the plaintiff has now recovered possession of all the suit land except a particular cottage, and that the present Darkhast relates only to that cottage. Be that as it may, there have been numerous Darkhasts since the original decree, but it is unnecessary to mention them all. It is common ground that the...
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