Court : Mumbai
Reported in : AIR1937Bom483; (1937)39BOMLR795
..... the mortgagee's claim was met by various pleas put forward by the mortgagors such as that the full consideration mentioned in the deed was not received, that the suit was premature, that the agreement to collect rent was obtained by misrepresentation and that it was not acted upon, that the mortgagors had not collected any rent from the tenants in possession and that the twelve additional rooms constructed after the execution of the document were not intended to form part of the security. ..... (1932) luck. 40. ..... as a result of our finding the lower court's decree will be modified in the following manner :-that in lieu of the amount found due by the lower court another shall be substituted after taking a fresh account in which the plaintiff shall be debited with the actual amount of the rent realized by him from the property mortgaged according to his statement, it being understood that the account shall not be re-opened except where necessary in consequence of this order in order to make an adjustment of interest upon the amount of actual realization .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1937Bom217; (1937)39BOMLR277
..... it has been established, and the defendants have admitted the fact, that at regular intervals monthly payments have been made by the sajjadanashin to the plaintiff and his father and other members of the family, that the orders of appointment of the sajjadanashin known as tauliatnamas have enjoined the successor to the gadi to maintain the family and that the declarations by sajjadanashins on taking office contain a resolve to uphold the family prestige by maintaining the different members out of the income (see exhibit 172).26. ..... my learned brother has dealt exhaustively with the various grants and firmans to illustrate the view that the references therein made to the maintenance of the rozas and the descendants of the syed or sajjadanashin, do not curtail the power of the sajjadanashin to utilise the surplus of the income according to his absolute discretion. ..... that a suit for money had and received does not lie by one tenant-in-common against another who has received more than his share, the appropriate remedy in such a case being an action for an account to which article 120 applies, unless from the facts of the case it could be inferred that the person receiving the money acted as the agent of the other, in which case article 89 would apply. ..... this full bench decision of the madras high court has been approved by this high court in govinddas v. ..... it is worth observing that in somewhat similar circumstances the full bench of the madras high court in yerukola v. .....
Tag this Judgment!Court : Mumbai
Reported in : (1937)39BOMLR382
..... of the true principles on which a hindu widow's right to adopt is based, and they held that the foundation of the brahminical doctrine of adoption is the duty which every hindu owes to his ancestors to provide for the continuance of the line and the solemnisation of the necessary rites, and that the vesting of the property on the death of the last holder in some one other than the adopting widow, be it either another coparcener of the joint family or an outsider claiming by reverter or by inheritance, could not be in itseilf the test of the continuance or extinction of the power ..... 251-52):-but though undoubtedly certain passages in the judgments relied on seemed to suggest that it was the succession to the, estate by the son's widow that was the determining factor, and, as was stated by a learned hindu judge in 1900, 'the whole current of recent decisions has been to base this limitation solely on the question whether the widow's act of adoption derogated from her own rights or the vested rights of others' (per ranade j. ..... 228, the madras high court has held that the power of a widow of a pre-deceased coparcener to adopt is at an end once the estate has vested in the widow of the last coparcener.39. ..... 782 the same question came up for consideration before the board in 1932 in bhimabai v. ..... gurunathgouda khandappagouda (1932) l.r. ..... gurunathgouda khandappagouda (1932) l.r. ..... gunmathgouda khandappagouda (1932) l.r. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1937Bom211; (1937)39BOMLR159
..... 485) :-whether such want of jurisdiction vitiates the decree as regards both the property over which the court has jurisdiction, and that over which the court has no jurisdiction, or only as regards the latter depends, in our opinion, on whether the nature of the case permits of a, separation of the part concerning the one from that concerning the other without affecting its basis.we hold that that is the correct view to take. ..... the madras high court has held in that case that the language of para. ..... but in order that there may be no dispute and as if the house is divided into three parts it will not be convenient to any one and it will not be convenient for residence also and if the house is so divided the value of the house and of the parts also will not remain the same-considering all these things we decide that this house should be divided into two parts only by an equitable partition. ..... the provisions in the award which have been held to be bad for indefiniteness are the following :-after dealing with certain ornaments which are ordered to be distributed among the four persons named, the award says this :-'or if any one desires to purchase them the market price of all these ornaments should be assessed and deducting the amount of his own share distribute the balance equally among the three sharers.7. ..... (1932) 55 mad. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1937Bom417; (1937)39BOMLR835
..... it is harmless if it is taken to mean that in certain circumstances the plaintiff is entitled to compensation-and that the circumstances must be taken from the section-that in the circumstances stated in the section, (under three heads), it may be assumed, unless the contrary is proved, that the one person held such a relation to the other as either directly to create, or by implication reasonably to justify, the inference that for the act done, the first named person was entitled to look for compensation to the person for whom the act was done. ..... dealing, first, with the claim on the basis of the contract between the municipality and the plaintiffs (exhibit 32), it seems clear that the contract referred only to that part of the works done by the plaintiffs which was styled the vegetable market, and that assuming that there were any other provisions in the contract with reference to works not falling within the description of a new vegetable market, the provisions of sections 48 and 49 of the bombay municipal boroughs act, 1925, were not followed ..... some attempt was made to bring the contract (exhibit 32) under the provisions of section 48(3)(b) and section 49(2) proviso (b), the effect of which i have just stated : but the effort utterly failed, and so far as the claim of the plaintiffs is based on the work done in respect of the beef market and the slaughter-house, the plaintiffs had to fall back upon the provisions of sections 65 and 70 of the indian contract act.3. ..... (1932) ran. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1937Bom153; (1937)39BOMLR82
..... the judgment, however, of the appellate court clearly shows that the warrant issued under section 6 of the prevention of gambling act was issued by an officer not empowered to issue it, that therefore the presumption arising under section 7 of the act did not arise, that the approver's evidence was unreliable and that thus there was no sufficient evidence against the accused. ..... our attention has been invited to in re gurunath narayan : air1924bom485 the first part of the head-note of which runs thus :the court will not pass any orders under section 561 a of the criminal procedure code which would conflict with any of the provisions of the code.this part of the head-note appears to be based on the following remarks in the judgment (p. ..... indeed if we construe section 439(5) of the code of criminal procedure too literally, the position would be that i could dimiss the present application and then having come to know of this matter could address a letter to the honourable high court under section 438 of the code of criminal procedure and recommend the quashing of the learned trial magistrate's order. ..... balkrishna phansalkar : (1932)34bomlr1523 and it was held (p. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1937Bom186; (1937)39BOMLR61
..... we think that if the prosecution had succeeded in making out its case that the complainant had the husband's authority to take care of ranganayaki on his behalf, so that the complainant stood in the place of the husband for the time being, while the husband was residing quite independently in another part of the town, it would have been difficult to say that the requirements of section 199 were not satisfied. ..... her father, who is an advocate of the madras high court, lives at chetpet, a suburb of madras. ..... it appears that her husband's mother is suffering from leprosy and ranganayaki's father has admitted that she treated the girl harshly; also that she had her son, ranganayaki's husband, completely under her thumb. ..... it need not necessarily be by a physical force, but the use of the word does require that there should be something in the nature of control or influence which can properly be described as a keeping back of the woman, and it cannot properly be said that a man detains a woman if she has no desire to leave and on the contrary wishes to stay with him. ..... but the fact remains that they were acting on their own authority or assumed authority and not by the authority or on behalf of the husband. ..... the few letters he wrote to her in the early days of the marriage show very little affection or patience, and after october, 1932, he never wrote at all either to her or to her father. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1937Bom98; (1936)38BOMLR1286
..... 411, and the decision of the full bench was that under its general jurisdiction, and apart from the guardians and wards act, the high court has power to appoint a guardian of the property of a minor who is a member of a joint hindu family and where the minor's property is an undivided share in the family property, and the court has jurisdiction to sanction an alienation by the father or the manager of a joint family where the court was satisfied that the transaction was for the benefit of the minor. ..... but i am unable to see on what principle a hindu father, or the manager of a joint hindu family, should be deprived of the right to come to court and ask the court to adjudicate upon the merits of the application on the ground that the transaction is for the benefit of his minor sons or minor members of the family, and that if the transaction was not sanctioned the other party to the transaction refuses to complete. ..... long before 1900 the practice in this court was to entertain such applications, and it was recognised that this court, which has inherited the jurisdiction of the supreme court, was not limited in such cases by the provisions of the guardians and wards act, and had inherent jurisdiction to appoint guardians in such cases, and to sanction a transaction either by way of mortgage or sale in the case of joint family properties, where minors were concerned, if the transaction was for the benefit of the minors. ..... however, in the year 1932 mr. ..... in 1932, however, mr. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1937Bom401; (1937)39BOMLR444
..... the language of this section is stronger than that used in section 10 of the madras forest act inasmuch as it expressly provides that an appeal shall lie from the decision of the talukdari settlement officer to the district court as if the decision of the talukdari settlement officer were a decree of a court subordinate to the district court. ..... upon that petition the learned district judge on october 21, 1932, made a note to the effect that as the names of the deceased respondents other than the two who had died before the appeal were not brought on the record and that as no application was made within time to bring the heirs of the legal representatives of respondents nos. ..... turning to the merits of the appeal, it is obvious that it was not brought to the notice of the learned district judge when he passed the preliminary order of abatement on october 21, 1932, that with the exception of two respondents' heirs and legal representatives all the remaining deceased respondents' heirs and legal representatives were ordered by the court to be brought on the record upon the application of the appellants. ..... thereupon the appellants on november 10, 1932, brought to the 'notice of the learned district judge the misunderstanding in regard to the prayer in their former petition and explained its purport and pointed out that upon their petition there was no justification for the order of abatement. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1937Bom1; (1936)38BOMLR1164; 166Ind.Cas.7
..... however, in deference to the referring judgment, i would say that it seems to me that far more difficulties arise from the construction placed upon the section by the madras high court, the rangoon high court, and this court, than arise under the construction placed upon it by the calcutta high court. ..... next after the commission of the offence, or one year after the first discovery thereof by the prosecutor, whichever expiration first happens.referring back to the previous section, which again refers back to section 13, there are three classes of prosecution to which section 15 applies; first, prosecutions for offences under the act, secondly, prosecutions for offences under section 18 of the sea customs act, and thirdly, prosecutions under the relevant sections of the indian penal code, the present prosecution coming within the latter category ..... they start with a makeup which has points of dissimilarity from the rival make-up, and, if they are not attacked, they gradually approach nearer to the make-up of their rival; and a magistrate might well find himself compelled to try, first of all, whether the infringement alleged by the accused in (say) 1931 amounted to an infringement, and if not, whether, on rather different evidence, there was an infringement in 1932 or in 1933, and so on. .....
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