Court : Mumbai
Reported in : (1942)44BOMLR295
..... been alienated, and any person who uses or occupies any such land to the use or occupation of which by reason of any of the provisions of this act he is not entitled or has ceased to be entitled shall,...pay the assessment of the entire number for the whole period of his unauthorized occupation, and,...the person unauthorizedly occupying any such land may be summarily evicted by the collector, and any crop raised in the land shall be liable to forfeiture, and any building or other construction erected thereon ..... however, several other papers escaped from the fire either because they were at that time produced in the civil courts or they were kept in the bungalow of the collector or in the commissioner's office or in the land records office, and by means of the available record which has remained after the fire the government have sought to prove that the land was given on lease to the two parsis mentioned in the general index register and that somehow or other the plaintiffs came on the land after it was granted to these ..... for nearly a year after he got a copy of the sanad he did not do anything and it was only after the government gave the notice in october, 1931, that the present suit was filed in 1932 for a declaration that the land was of the plaintiffs' absolute ownership.40. ..... the recent decision of the madras high court in pothukutchi appa rao v. .....
Tag this Judgment!Court : Mumbai
Reported in : (1942)44BOMLR20
..... a full bench of the madras high court reached the same result upon a different ..... ram lal and held that a puisne mortgagee who pays off a prior mortgage as part of the consideration for the puisne mortgage is using the mortgagor's money and not his own, so that he obviously acquires no right for himself by his ..... but for our purposes it is enough to say that the plaintiff must be held to have been using the mortgagor's money when he paid off the first mortgage, so that he gets no right of subrogation by his payment ..... they said that the whole question of subrogation had been simplified by the amendment of the code of 1929, under which we have our present section 92, and they took the view that a puisne mortgagee was entitled to subrogation merely by virtue of his being included in the list of persons entitled under ..... it was held, upon a consideration of the first and the third clauses of section 92 together, that a puisne mortgagee in circumstances such as these could not be intended to be included in the first clause, since that clause referred only to persons holding pre-existing interests in the property, and that he could get no right of subrogation unless he held a registered agreement to that effect as provided in clause ..... 2's defence to the suit is that by reason of section 92 of the transfer of property act he is subrogated to the second mortgagee whose mortgage he has paid off, and on that ground he claims to have priority over the plaintiff's mortgage.2 ..... lap (1932) i.l.r. .....
Tag this Judgment!Court : Mumbai
Reported in : (1942)44BOMLR15
..... but the position with which the learned judges of the madras high court were dealing was somewhat different. ..... there a mortgagee bought the mortgaged property for the amount of the sum due upon the mortgage, and the deed contained the following words 'keeping intact the effects of the mortgage created under the simple mortgage and the usufructuary mortgage bonds aforesaid'. ..... it can apply while the mortgage is still subsisting; but it applies even more when the mortgage has been paid off out of some only of the properties mortgaged, and the owner or the person interested in the properties from which the mortgage has been paid off then has a right to claim contribution from the owner of other properties which were liable under the mortgage but which were not called upon to pay it off. ..... section 101 of the transfer of property act reads as follows:-any mortgagee of, or person having a charge upon, immoveable property, or any transferee from such mortgagee or charge-holder, may purchase or otherwise acquire the rights in the property of the mortgagor or owner, as the case may be, without thereby causing the mortgage or charge to be merged as between himself and any subsequent mortgagee of, or person having a subsequent charge upon, the same property; and no such subsequent mortgagee or charge-holder shall be entitled to foreclose or sell such ..... in may, 1932, the house was sold by the court and was bought by defendant no. .....
Tag this Judgment!Court : Mumbai
Reported in : (1942)44BOMLR11
..... justice broomfield no doubt said that the appointment of the receiver was not ultra vires under the peculiar circum-stances of the case, but, i think, having regard to the whole of his judgment, that all he meant was that the district judge, acting under the scheme, and removing a trustee, had an implied authority to protect the trust property in the meantime, and that he could appoint somebody to take charge of the property. ..... then an application was made to the learned judge for recovery of the amount by execution, and the learned judge then came to the conclusion that the district judge of poona, acting under clause (4), was persona designate, and was not acting in a judicial capacity, and, therefore, could not make an order capable of execution under the code.10. ..... nanavati, the then district judge of poona, considered that things were not going on properly, and accordingly he went into the matters of the trust, and made an order, in the first instance, suspending the trustees, and appointing a receiver, which he purported to do under order xl, rule 1, of the civil procedure code, and subsequently dismissed two of the trustees, one of whom being the present opponent, and in so doing he said:-for the present i make no order as to costs of this inquiry. ..... now, what happened was that the affairs of this sansthan got into difficulties, and in 1932 mr. .....
Tag this Judgment!Court : Mumbai
Reported in : (1942)44BOMLR196
..... is it that custom has taken away from some of the junior members their rights of maintenance but left to others those rights of maintenance which the ordinary law would give them in the case of partible property this was thought by the madras high court in the chemudu. ..... by a decision of the high court of lahore given in 1932 with reference to the year of assessment 1929-30 it was held that the income from this impartible estate was chargeable to tax as the income of a hindu undivided family; and also that the younger brother's allowance was no part of the income of the family though chargeable against the recipient as his income : krishna kishore v. ..... the learned judges of the high court have rejected the claim of the commissioner to tax the assessee as an individual upon the income of the house property under section 9 of the act. ..... their lordships think that the answer proper to be given to the first question propounded in the case stated is as follows : as regards house property : for the purposes of section 9 of the act. no. ..... the sections of the act to: which the question directly refers are section 3 and 55 which in language almost, but not quite, parallel impose the tax and the additional duty or super-tax. ..... their lordships cannot accept the suggestion that because the statute to be interpreted is an income-tax act broader or more general notions of ownership than the hindu law affords are to determine the matter. .....
Tag this Judgment!Court : Mumbai
Reported in : (1942)44BOMLR191
..... nevertheless proceeded to discuss the question at some length, and eventually arrived at the conclusion that the mortgages were beyond the competence of the executors and were accordingly invalid as between the appellant on the one hand and the plaintiff and the rest of the unsecured creditors of the testator on the other; but that the mortgages were valid as between the appellant and the executors, by which the learned judges meant, as will presently appear, that it was valid as between the appellant and the persons interested in the testator's estate other than ..... stated shortly it was to this effect : the appeal was allowed; the decree of september 6,1932, was set aside and declarations were made substantially as follows :-(1) that the equitable mortgage of june 2, 1919, was not valid as a mortgage as between the plaintiff and the appellant as it was not registered ; (2) that the mortgage by the executors of no. ..... it was the question whether in view of the provisions of section 307 of the indian succession act the executors had power to mortgage the houses of their testator. ..... chevula venkatasubbaya chetti now deceased was the owner of two houses in madras. .....
Tag this Judgment!Court : Mumbai
Reported in : (1941)43BOMLR860
..... provided by this code or by any law for the time being in force where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.whether as a result of this decision or in anticipation of it or independently of it, a compromise petition was on the same day (november 29, 1928) filed in court with the result that on the next day (november 30) the sale which had been fixed for that ..... further, assuming that madhusudan in the first execution case was wrongly held to be his brother's 'representative' within the meaning of section 47, their lordships see difficulty in the view that such a decision on a question of procedure gave the decree-holder a vested right to the misapplication of the code in all future execution cases between the parties in respect of the same decree. ..... the learned subordinate judge having correctly observed that the two applications were inconsistent--the first being upon the footing that madhusudan was a stranger to the suit in which the decree had been passed and the second on the footing that he was a 'representative' of the judgmentdebtor--dismissed both of them. ..... after hearing a number of witnesses, the learned subordinate judge by his order of november 12, 1932, held that madhusudan's case failed on the facts as regards all the irregularities alleged and this finding is not now disputed. .....
Tag this Judgment!Court : Mumbai
Reported in : (1941)43BOMLR850
..... their case is that they were coparceners with their uncle in a, joint hindu family governed by the mitakshara and that on dharma rao's death they became entitled by survivorship to the whole interest in the joint family property, the appellant, though a creditor of dharma rao, not having taken any steps in his debtor's lifetime to recover his debt.3. ..... further and in the alternative the respondents contend that even if the deed of sale was intended to be operative and was entered into animo contrahendi it did not have the effect of dividing the brothers' interest in the attached properties or of bringing to an end the right of the survivor to succeed to the whole interest. ..... where a third party has been induced to act upon the footing of such a document as exhibit b, very different questions may arise by reason of estoppel or otherwise, but the question in the present case is limited to the parties themselves and to the immediate effect of the deed. ..... 650 is said to have been paid in cash to kasibabu at the time, the rest being accounted for in the deed by recitals about debts of the joint family, of the parties' own branch of the family and of kasibabu personally, and by a statement that rs. ..... certain immoveables in which dharma rao had an interest were attached before judgment, and on april 22, 1932, the respondents applied to the subordinate judge to raise the attachment contending that the properties attached were not liable to be taken in execution under the decree. .....
Tag this Judgment!Court : Mumbai
Reported in : (1941)43BOMLR751
..... gangaram yesu was that inasmuch as under rule 16 the application has to be made to the court which passed the decree, which may not be the court for the time being executing the decree, because execution of the decree may have been transferred to another court under the provisions of sections 38 and 39 of the code, the court hearing an application under rule 16 is not a court executing the decree within order xxi, rule 2, sub-rule (3). ..... it was dissented from by a full bench of the madras high court in subra-manyam, v. ..... the court in effect treated the application under rule 16 as being an application for leave to execute the decree, and considered that until that leave was given, the court which passed the decree was not a court executing the decree, but, with all respect to the learned judges who decided that case, they have overlooked the fact that an application under rule 16 is in the express words of the rule an application for execution of the decree, and it is not an application for leave to execute the decree. ..... then rule 16 deals with the assignment of a decree and provides, so far as material, that where a decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the court which passed it; and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder. ..... ramaswami (1932) i.l.r. .....
Tag this Judgment!Court : Mumbai
Reported in : (1941)43BOMLR681
..... pleaded; and it is then the duty of the court to look into the matter, and if the court comes to the conclusion that the parties were acting together with a view to perpetrate a fraud, and did in fact perpetrate that fraud, and that there is no difference in the degree of guilt of the plaintiff (who is asking the court to give him some help) and that of the defendant, the duty of the court is not to assist either party; in other words, the duty of the court is to dismiss the claim, because the court having then in its ..... have been referred to a considerable number of cases, and, except for the madras high court, all the other high courts have not followed the principle laid down in sidlingappa v. ..... plead his own fraud;(2) where both parties are equally fraudulent, the courts will refuse to enforce the fraudulent transaction on the principles that where each party is equal in fault, the law favours him who is actually in possession, and will give relief to neither, and that a right of action cannot arise out of fraud, with the result that--(a) where the plaintiff seeks relief on the allegation and on the basis of joint fraud, his suit will be dismissed; and(b) ..... among the other high courts, the madras high court is the only one which has in its recent rulings, the last of which is in ..... merely rests the decision on the doctrine of stare decisis, though apart from the decisions of the madras high court itself, the balance of authority is heavily against the view taken. ..... (1932) ..... (1932) .....
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