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 ' ..... such verbal representation by ba maw as to delivery as is referred to in paragraphs 7 and 8 of the plaint, or of any such contract or waiver as are alleged in paragraphs 5, 6 and 8 of the plaint.16. although some of the other witnesses for the japanese company gave .....
Tag this Judgment!Court : Mumbai
Decided on : Mar-04-1935
Reported in : AIR1935Bom385; (1935)37BOMLR642; 159Ind.Cas.533
..... cited in this connection was nilkomul shaw v. reed (1872) 12 beiigs l.r. 287. the case refers to section 203 of the act viii of 1859 and to sections 279-282 of the indian succession act, 1865. these sections correspond to section 52 of the present civil procedure code and sections 320-323 of the indian succession act, xxxix of 1925. in citing the judgment i shall for convenience refer to the ..... , for the purpose of having 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 liability of the executrix to ..... the necessity of treating 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 declaration of the debt due ..... which i have referred indicate that the net estate was very large, yet subsequent events have proved it to be, insolvent and extremely difficult of administration. , 7. these subsequent events may be very shortly stated.8. the estate consisted in the first instance of certain realisable securities pledged with the central bank of india and the bank of india to secure claims .....
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 ..... is no. (5) is. plaintiff's adoption proved finding in the affirmative. (6) is it invalid as alleged by defendants? finding in the negative. (7) was giriyeppa the nearest 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 .....
Tag this Judgment!Court : Mumbai
Decided on : Sep-25-1935
Reported in : AIR1936Bom408; (1936)38BOMLR823; 165Ind.Cas.994
..... 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, ..... the payment of the sum of money mentioned in it, and the other by way of damages and injunction.4. it is clear that the provisions of section 53 of the indian act apply to the two suits filed by the plaintiffs against the defendants. the questions which arise for consideration are : (1) are the plaintiffs bound to ..... of the statutory remedy. in stevens v. chown; stevens v. clark [1901] 1 ch. 894, which was a case under the sidmouth market act of 1839 as amended by the sidmouth market act of 1846, it was held by farwell j. that, where a statute provided a particular remedy for the infringement of a right to property thereby ..... in each of the two suits. i, therefore, do not think it necessary to express any particular opinion at this stage on the point raised by counsel.7. the plaintiffs cannot have an account of the profits as an alternative to a claim for damages or to a claim for payment of rs. 1,000. ..... their claim-for damages along with the injunction and the payment of the sum of rs. 1,000 which is the maximum amount recoverable.8. the last question is, when must the plaintiffs make their election? counsel for the plaintiffs argued that the defendants would not in any way- .....
Tag this Judgment!Court : Mumbai
Decided on : Dec-20-1935
Reported in : AIR1936Bom423; (1936)38BOMLR864
..... capacity under the provisions of order i, rule 8, civil procedure code. the learned judge very rightly rejected the argument of the plaintiff that section 323 created a trust in favour of creditors. then the learned judge referred to section 359 of the indian succession act, which provides that-when the executor or administrator ..... 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 ..... upon it. in june, 1902, the respondent kirk, in whom the mortgage was then vested, moved for leave to claim for a debt of 7,000 and interest against the personal estate. it was opposed by the residuary legatee, henry harrison, the appellant. the application was rejected by the ..... of the administration judgment is entitled to participate in the assets.the authority cited is in re general rolling stock company (1872) l.r. 7 ch. app. 646 the following observations occur :-and where there has been a judgment for administration, it stops the statute, notwithstanding that a creditor ..... claim of defendants no. 10 was referred to the commissioner for taking accounts to investigate the said claim. by an order made on january 7, 1932, defendants no. 10 were allowed to receive the amount of the dividend payable to them, and this order was made without prejudice to .....
Tag this Judgment!Court : Allahabad
Decided on : Nov-05-1935
Reported in : AIR1936All102; 160Ind.Cas.991
..... in any other case the court may either approve or refuse to approve the proposal.6. the indian act of 1920 in all material particulars agrees with the english bankruptcy act, only that under the indian act the application under section 38 can be made by an insolvent only after the making of an order of adjudication and ..... consent. in shafiq-uz-zaman v. deputy commissioner, barabanki 1915 18 pc 125 the learned judicial commissioners commented on the provisions of section 27, act 3 of 1907 (corresponding to section 38, act 5 of 1920) and observed that the first step was to bring the scheme to the notice of the creditors and the ..... of course, given the option before the proposal is placed before the creditors at the meeting to amend the proposal if the amendment is in the opinion of the court calculated to benefit the general body of creditors.8. under sub-clauses 4, 5 and 6 the court is told that if the terms of ..... reached the stage of agreement or a composition and there cannot therefore be a proposal for a composition before the court for its consideration or acceptance.7. the acceptance by a majority and 3/4ths in value of all the creditors seems to be a condition precedent before the court can proceed to ..... court thus had no option but to refuse to give its approval to the proposal.4. the case for the insolvent is that under sub-clause 7 the court has very wide powers either to approve or to refuse the [proposal and although certain restrictions might have been laid down in sub-clauses .....
Tag this Judgment!Court : Allahabad
Decided on : Sep-26-1935
Reported in : AIR1936All239
..... give our own view on the subject which is in disagreement with the opinion of the bombay high court. it is true that clause 2, of section 17, registration act, distinctly provided that nothing in clause (b) (and it is only under clause (b) that the document might require registration) applies to any ..... of pronouncing judgment, nor again can it be said that the said document was not within the knowledge of the applicant. the application for the amendment of pleadings however stands on a different footing and we think that in the interests of justice that application ought to be allowed. it is ..... assignor after it was communicated to the assignee or that it was a void deed within the rule referred to.11. the cases decided by the indian high courts also favour such compositions. the earliest case perhaps is the case of bomanjee manockjee v. navroji palanji (1864) 1 bom hcr 233, ..... -ramswaroop; (4) in-darmal, munim of joharimal-ramlal; (5) babu lal, partner of ramjimal-babulal; (6) jagannath of the firm of gopiram-eadhakishan and (7) kakubhai of the firm of khimji-vishram. it was decided that the work of drafting a composition deed should be entrusted to messrs. malvi modi and ranchoddas, a ..... property be assigned to a trustee and he takes possession of it and communicates with certain of the creditors, who express satisfaction, the trust is irrevocable.8. may on fraudulent disposition, edn. 3, p. 379, says:the general rule is that a complete transfer of property by a voluntary donor, which .....
Tag this Judgment!Court : Allahabad
Decided on : Mar-15-1935
Reported in : AIR1935All579
..... place it makes the provision that the evidence of the child requires corroboration. in my opinion it would be well if the indian evidence act and the oaths act were amended in this particular and if it were not left to the courts to apply section 13, oaths act, in this connection.7. the next point on which arguments centred was in regard to the provisions of ..... be retried by a, court of competent jurisdiction subordinate to such appellate court or committed for trial.8. now learned counsel for the accused has argued at considerable length that what the appellate court is empowered to do by the second alternative in this sub-section is only to direct a magistrate to hold an enquiry under ch. 18, criminal p.c ..... child is corroborated in; some material particular implicating the accused. this provision comes from the statute of the children act, 1908, 8 edward, 7 c. 67. section 30. we consider that this provision of the english law is sounder than the provision of the indian law in two respects: in the first place it makes provision for a child who may not understand the meaning ..... magistrate did after receiving the order of the sessions judge was to amend the charge and call on the accused to give a list of witnesses and make a formal order of commitment. now learned counsel relies on a ruling of a learned single judge of this court reported in 8. emperor v. maula khan (1907) a.w.n. 178. in that .....
Tag this Judgment!Court : Chennai
Decided on : Nov-14-1935
Reported in : (1936)70MLJ700
..... concurrence of the said minor, the right of all the decree-holders to apply for execution is not barred by reason of the provisions of section 7 of the indian limitation act. the said purushotham chetti is one of the sons of the first plaintiff and was brought on record on the death of the first plaintiff ..... compromise invalid so far as the minor was concerned. in neither of these cases was there any question of the application of the provisions of section 7 of the indian limitation act or of the nature of the powers of a manager to give a valid discharge of a decree in favour of himself and a minor member ..... far as this execution petition now before us is concerned, time began to run from the date of the final decree and not from the date of the amendment, and the amendment does not enure to the benefit of the appellant. the records in the case reported in thiagaraja thevar v. sambasiva thevar (1933) 66 m.l.j ..... of the family represented by another member.8. in the case of vijaya ramayya v. venkatasubba rao (1914) 30 m.l.j. 465 : i.l.r. 39 ..... mad. 853 the contention was that, as the compromise was entered into by the father who was not the guardian ad litem of the minor, no sanction of the court was necessary under section 462 criminal procedure code .....
Tag this Judgment!Court : Chennai
Decided on : Aug-06-1935
Reported in : 159Ind.Cas.853
..... and realising the money from the complainant. if so, having regard to the fact that the promissory note was alleged to be false, the offence committed would fall under section 193, indian penal code and sanction for taking proceedings (which is lacking in this case) of the panchayet court or of such court to which it is subordinate is necessary to enable ..... from the complainant. if this is the true construction of the paragraph in the complaint, there can be no doubt that the offence alleged falls clearly within the provisions of section 193, indian penal code, and so, without a complaint from the panchayet court or of any court to which such court is subordinate, the magistrate cannot take cognizance of the complaint ..... cannot be tried because the forgery was committed in order to fabricate evidence for use in a panchayat court.'8. this position is certainly not satisfactory. in our opinion the difficulty can be got over only by suitably amending section 77 of the madras village courts act by providing that section 476 also of the criminal procedure code, would be applicable to proceedings of the panchayet court. ..... the order of the commitment must, therefore, be set aside. we accordingly quash that order.7. the position reduces itself to this, here is an instance of persons who are alleged to have committed an offence under section 467, indian penal code. having regard to the provisions of section 195(b) and the decision of this court in in re, ramnappz reddi 55 m .....
Tag this Judgment!