Court : Mumbai
Reported in : AIR1939Bom313; (1939)41BOMLR561
..... that where a coparcenery exists at the date of the adoption, the adopted son becomes a member of the coparcenery, and takes his share in the joint property accordingly, and that where the adoption takes place after the termination of the coparcenery by the death, actually or fictionally, of the last surviving coparcener, the adoption by a widow of a pre-deceased coparcener has not the effect of reviving the coparcenery, and does not divest the property from the heir of the last surviving coparcener (other than the widow) or those claiming through him ..... although a judgment in a previous case not inter partes may be admissible under the provisions of sections 13 and 43 of the indian evidence act, as establishing a particular transaction, that is, the decision arrived at, the reasons upon which the judgment was founded are no part of the transaction and cannot be considered, nor can any finding of fact there come to, other than the transaction itself, be relevant evidence vide gobinda narayan singh v. ..... in both points they agree with the high court of madras, no doubt on the ground that in the case of a gift there is no equity upon which a decree for partition would depend. ..... gurunathgouda khandappagouda (1932) l.r. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1939Bom66; (1939)41BOMLR59
..... aside the decree against him ; we must assume therefore that he has a right to bring such a suit. ..... right in this connection of so definite and far-reaching a nature that the courts of this country were entitled to say: 'this right is based on equity and good conscience; we will adopt it and apply it here ; the remedies given by the english law are not available or not effective here, but that is only a matter of procedure ; the right cannot be made effective in this country unless the minor is freed from the bar of res judicata and allowed to bring a suit to set ..... the protection of minors against the negligent actings of their guardians is a special one, and in these cases the plaintiff in the second suit was also the plaintiff in the former suit, although in the earlier suit he or she had sued through a guardian.19. ..... in the madras high court it was held by a division bench in punnayyah v. ..... (1932) all. ..... (1932) all. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1939Bom149; (1939)41BOMLR168
..... motibhai : air1932bom513 and a decision of a full bench of the madras high court, subba rao v. ..... in their written statement the defendants maintained that they were the owners of the vacant land on which the water was discharged, and alternatively they claimed an easement to discharge water through the mori and the spouts over this land, assuming that the land was of the plaintiff. ..... 599 that if it be shown that the owner of the dominant tenement has in fact exercised all the rights which he says go to constitute an easement in pursuance of a perfectly definite and well-recognised claim of ownership, then it is not open to him to turn round and say 'now that my claim to ownership on which i always relied has failed, i rely on some of the acts of ownership as being sufficient to constitute an easement. ..... in my opinion, where a party shows that for the statutory period he has openly exercised certain rights which are in themselves sufficient to establish an easement, prima facie he is entitled to the easement, and it is not necessary to show that during the whole of the prescriptive period he was consciously asserting a right to an easement. ..... it is not in my judgment the law that a person cannot acquire an easement unless during the whole prescriptive period he acts with the conscious knowledge that it is a case of a dominant and servient tenement and that he is exercising a right over property which does not belong to him. ..... krishtacharya (1932) 35 bom. l.r. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1939Bom61; (1938)40BOMLR1275
..... that is the effect of sub-clause (a), and it saves from the operation of the act the right which the plaintiffs had to enforce their mortgage, such right having accrued before the act came into operation. ..... the indian partnership act came into operation on october 1, 1932, but by virtue of section 1, sub-section (3), section 69 of the act: only came into force on october 1, 1933, that is two days before this suit was filed. ..... but in my opinion where the words of a section in a statute are plain, the court must give effect to them, and is not justified in; depriving the words of their only proper meaning in order to give effect to some intention which the court imputes to the legislature from other provisions of the act. ..... section 74 provides, so far as is relevant, that :-nothing in this act or any repeal effected thereby shall affect or be deemed to affect-(a) any right, title, interest, obligation or liability already acquired, accrued or incurred before the commencement of this act, or(b) any legal proceeding or remedy in respect of any such right, title, interest, obligation or liability, or anything done or suffered before the commencement of this act, or(c) anything done or suffered before the commencement of this act.6. ..... the matter has also been considered in the madras high court. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1939Bom188; (1939)41BOMLR249
..... thakor for the respondents has conceded that upon the claim to recover a debt due to a deceased mahomedan a civil court cannot pass a decree without a certificate, and he has urged that that difficulty, as well as the difficulty arising from the provisions of section 22 of the indian limitation act by reason of bringing the other heirs as parties to the appeal, could be obviated if he was given time to produce the certificate contemplated by section 214 of the indian succession act. ..... the madras high court adopted the above view of the bombay high court in the earlier decisions. ..... the irresistible inference is that that conduct was the result of some arrangement, particularly when till 1932, as admitted by the defendants, the balance of rs. ..... sayed harun died in october, 1932, without presenting the hundi for payment and his widows claiming to represent his estate, being according to the plaint his only heirs, instituted this action to recover the debt on june 1, 1933. .....
Tag this Judgment!Court : Mumbai
Reported in : (1938)40BOMLR1236
..... rights as follows : that no money is separately invested or is intended at the time to be withdrawn from use in the firm's business ; that interest is credited upon the sum due to the deity at the ordinary rate allowed to customers of the firm, which is lower than the rate obtained by the firm by the use of its money ; that the managers of the deity, however, have no right to demand payment when they choose, but the money should be expended for the deity by the firm at the firm's discretion as occasion may arise- in other words ..... even if the matter could be regarded as a mere question of admitting or rejecting a proof, when the official assignee acts under rule 25 of the second schedule, it seems more reasonable and more in accordance with a sound interpretation of section 86 and with english practice under statutory provisions couched in the same terms that the 'appeal' from the 'act or decision' of the official assignee to the judge should be by motion and that the oral evidence necessary should be taken before the insolvency judge ..... 85 in the list of unsecured creditors, the name of a hindu temple situate at a place called o'siruvayal in the ramnad district of madras, the place of origin of this chetty ..... 48,915-10-0 ; the ' date when contracted ' is entered as april, 1932 ; and the consideration is described as ' deposit ..... 670 and which had continued to increase by the addition of compound interest with frequent rests and at varying rates till in 1932 it reached the figure of rs. .....
Tag this Judgment!Court : Mumbai
Reported in : (1938)40BOMLR843
..... but the mere bounty of the testator enables the legatee to call for his species of marshalling : that, if those creditors, having a right to go to the real estate descended will go to the personal estate, the choice of the creditors shall not determine, whether the legatees shall be paid, or not...both are in law liable to the creditors; and therefore by making the opinion to go against the one they shall not disappoint another person, who the testator intended should be satisfied.13. ..... the mahomedan law as to legacies is highly special and need not now be considered ; but, in providing that the heir takes a share in the nett estate after deduction of the debts of the deceased, the mahomedan law is in line with other laws including the hindu law and the second chapter of the indian succession act, 1925. ..... in this case two appeals by separate sets of plaintiffs have been brought from a decree of the chief court of oudh dated march 14, 1934, setting aside the decree of the subordinate judge, lucknow, dated september 1, 1932, and dismissing with costs a suit for contribution. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1938Bom453; (1938)40BOMLR995
..... no doubt according to the definition in section 239 of the indian contract act ' partnership ' is the relation which subsists between persons who have agreed to combine their property, labour or skill in some business, and to share the profits thereof between them, and according to the definition of ' person ' in the general clauses act, unless there is anything repugnant in the subject or context, it includes any company or association or body of individuals whether incorporated or not. ..... the most: reasonable construction of the words, however, seems to be not that the partnership came to an end but that the business of the partnership came to an end, and there is nothing in the indian contract act which justifies the view that the mere cessation of business would dissolve the partnership. ..... we must hold that the plaintiffs have not succeeded in proving the contract to the contrary which they have alleged and that the deaths of meghaji and bhikaji dissolved the firm for the dissolution of which the suit is now brought.13. ..... ' it does not appear that the heirs of meghaji or of bhikaji joined the main firm as partners, so that the only statement of this defendant which can be said to lend any real support to the appellants' case is the final sentence ' even if the heir leaves, the other partners conduct the firm.'12. ..... we understand that the same view of the law has been taken in madras also, and i may mention ghishulal gamshilal v. ..... (1932) all. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1939Bom31; (1938)40BOMLR1192
..... signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty,and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract,and the transferee has performed or is willing to perform his part of the contract,then, notwithstanding that the contract, though required to be registered, has not ..... anything already done before the 1st day of april, 1930, in any proceeding pending in a court on that date : and any such remedy and any such proceeding as is herein referred to may be enforced, instituted or continued, as the case may; be, as if this act had not been passed.the most reasonable interpretation of the provisions of this section certainly seems to be that the sections of the transfer of property act not specifically mentioned in section 63 of the amending act were intended to be retrospective except in the case of proceedings pending in a court ..... prior to this full bench case the view taken by the allahabad high court and also by the madras high court in ramasami pattar v. ..... (1932) mad. ..... (1932) all. ..... (1932) ran. ..... (1932) mad. ..... (1932) all. ..... (1932) all. ..... (1932) mad. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1938Bom405; (1938)40BOMLR676
..... raja yarlagadda ankineedu : (1923)45mlj651 the madras court disagreed with the view taken in asgar ali v. ..... it is not, however, necessary to decide the point, for 1 am of opinion that under order xxi, rule 17, the court has a discretion, even if the application for amendment is made after the expiry of the period of limitation under article 182, to remedy the defects when first brought to its notice, provided the delay is not unreasonable under the circumstances, and the application is otherwise bona fide. ..... but sub-rule (3) provides that 'every amendment made under this rule shall be signed or initialled by the judge,' and sub-rule (4) provides that when the application is admitted, the court shall enter in the proper register a note of the application and the date on which it was made, and shall, subject to the provisions thereinafter contained, order execution of the decree according to the nature of the application. ..... that sub-rule seems to contemplate, first of all, a ministerial act in entering a note of the application in the proper register, and secondly, a judicial act, namely, the ordering of the execution of the decree, and the doing of both acts is mandatory. ..... on august 11, 1932, judgment was obtained by the present respondents against the appellant and two others, in the court of the first class subordinate judge at ahmedabad, and on july 25, 1934, that decree was transferred to this high court for execution. ..... (1932) pat. .....
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