Court : Mumbai
Reported in : AIR1936Bom363; (1936)38BOMLR632; 165Ind.Cas.672
..... that section 292 merely entitled the assignee to recover the full amount ' recoverable under the bond', and observed as follows :accordingly, the section itself contemplates that at the time of the assignment, there is in law an amount recoverable in respect of the breach.with all respect the words ' recoverable under the bond ' refer to and mean nothing more than the main obligation of the administrator set out in the bond itself in these terms :.shall administer...all the rest and residue of the said property and credits ..... the learned judge held that the suit was a suit upon a bond subject to a condition, and was governed by article 68 of the indian limitation act, that the conditions of the bond had been broken at the latest on the death of nathalal, and that in consequence all rights under the bond had become barred by limitation at the date of the assignment of the bond to the plaintiffs, and that the plaintiffs' suit was, therefore, time-barred.4. ..... in madras the practice, as i understand, has always been to take the bend in the name of the registrar. ..... on january, 19, 1932, an order was made directing the trustee to pay rs. ..... now in this case the loss occurred on january 19, 1932, when it was realized by plaintiff no. ..... 58,087-1-0 by a notice of motion, dated january 13, 1932. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1937Bom19; (1936)38BOMLR1023; 166Ind.Cas.961
..... in my opinion the language of order xxi, rule 7, and the deliberate omission of the words ' or of the jurisdiction of the court which passed it' when the code was amended in 1908, make it clear that it was not the intention of the legislature that the court to which a decree has been sent for execution should have power to inquire into the question of the jurisdiction of the court which passed the decree, and there is a long series of decisions both of this court and of other high courts in support of this view. ..... in general it can be argued that the amendment of the old section 225 of the civil procedure code by the present order xxi, rule 7, which omits the words ' or of the jurisdiction of the court which passed it,' is almost conclusive of the intention of the legislature to make it impossible for an executing court to question the jurisdiction of the trial court for any reason whatever. ..... 675 a full bench of the madras high court agreed with the view taken in har govind v. ..... narsingrao konherrao it was held by a division bench of this court that, under order xxi, rule 7, of the civil procedure code (act v of 1908), the executing court has no power to question the jurisdiction of the court which passed the decree under execution. ..... (1932) cal. ..... (1932) cal. ..... (1932) cal. ..... 1842 of 1932. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1936Bom330; (1936)38BOMLR903; 165Ind.Cas.34
..... are the daughters of the settlor, and after the death of the settlor, the trustee is to pay to bai khatubai during her life the rents and profits of the property in the first schedule, which was that in khetwadi back road, and then come the material words :-and the trustee shall pay to the said bai saroobai during her life the net rents and profits derived from the property described in the second schedule hereto.then the scheme of the settlement is that after the death of the respective daughters, the ..... this contention seems to be based on the analogy of the principle embodied in section 172 of the indian succession act which says:where the interest or produce of a fund is bequeathed to any person, and the will affords no indication of an intention that the enjoyment of the bequest should be of limited duration, the principle as well as the interest shall belong to the legatee.and illustration (iii) says :a bequeaths to b the rents of his lands at x. ..... the material facts are, that one fatmabai, widow of elias haji abdul rahim, died in august, 1932. .....
Tag this Judgment!Court : Mumbai
Reported in : (1936)38BOMLR776
..... is allowed for this,' meant that the widow was to wait for seven years after the death of baboo rao dani and not merely for seven years from the date when the will was made to see whether the plaintiffs, who were the paternal uncle's sons referred to, would either 6f them have a son in which case he was to be adopted : that the adoption of rambharosa was within the seven year period computed as the plaintiffs said it ought to be computed.secondly ..... 522) :-.a direction to operate as a prohibition against a hindu widow adopting any boy to her husband as a son except the boy named by him must be explicitly made and clearly intended by the husband to limit the discretion of his widow for all time and on every occasion on which otherwise after his death his widow might validly make an adoption for him.7. ..... upon appeal to his majesty in council the decision as to the contingent nature of the will was reversed and the suit remanded to the court of the judicial commissioner to deal with the other matters upon which that court had not passed. ..... if this boy does not exist which god may forbid, any boy can be taken in adoption.the property to be allowed to the school department should remain in charge of government.i have executed this will with my free will and pleasure. ..... on april 25, 1920, .rambharosa the defendant was adopted by the widow purporting to act in accordance with her deceased husband's wishes. ..... rambharosa (1932) l.r. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1936Bom314; (1936)38BOMLR571
..... this court has always acted upon the definition of ' judgment' given by the calcutta high court in the case of the justices o) the peace for calcutta v. ..... 452) :-we think that ' judgment' in clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability.does the order appealed from decide any question between the parties and determine any right or liability on the notice of motion there was, in my opinion, no question between the parties. ..... no reasons, however, seem to have been given for this opinion, and with all respect to the learned judges i am unable to agree that an order refusing to commit the party alleged to have committed a breach of the order of the court is a judgment within the meaning of clause 15 of the letters patent.12. ..... all that he can do is to come to the court and complain that the authority of the court has been flouted, and if the court thinks that it was so, then the court in its discretion takes action to vindicate its authority. ..... now, the exact meaning of that expression has given rise to a good deal of controversy in the various high courts in this country, but so far as this court is concerned, it has consistently followed a judgment of the calcutta high court in the case of the justices of the peace for calcutta v. ..... solomon moses (1932) i.l.r. .....
Tag this Judgment!Court : Mumbai
Reported in : (1936)38BOMLR660
..... appears that pillai was a working partner, a man of little or no means; there does not appear to have been any written agreement of partnership; and neither partner undertook to bring any capital into the partnership in the strict sense of this expression-that is in the sense in which the word is used in clauses (c) and (d) of section 13 of the indian partnership act (ix of 1932). ..... the appellant took exception to the assessment made by the income-tax officer on march 11, 1932, as aforesaid, but his appeal to the assistant commissioner of income-tax was on december 10, 1932, dismissed, and the high court of madras has in effect upheld the orders of the income-tax authorities ..... the learned chief justice of the high court at madras, with whom the other judges agreed, answered the question referred in the negative, holding that in the books of the cotton business there was nothing to show that the appellant had made any other or further loss in that business than his five-eighths share, and that as the money-lending business never lent any money to pillai but only to the cotton partnership, pillai never became a debtor of the money-lending business at all ..... this was doubtless done in accordance with the ruling given by the madras high court in the case of commissioner of income-tax v ..... is an appeal by the assesses from the decision of the high court at madras on a reference made by the commissioner of income-tax, madras, under section 66(2) of the indian income-tax act (act xi of 1922). .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1936Bom221; 163Ind.Cas.279
..... has been committed by a party to any proceeding in any court' used in section 195(1)(c) refer not to the date of the commission of the alleged offence, but to the date on which the cognizance of the criminal court is invited, and that when once a document has been produced or given in evidence before a court, the sanction of that court, or of some other court to which that court is subordinate, is necessary before a party to the proceedings in which the document was produced or given in evidence can be prosecuted, notwithstanding that ..... under section 471, penal code, that is, of using a forged document, and a question was submitted to this court by the then chief presidency magistrate in these terms:whether in the event of an offence punishable under section 471, penal code, being made out in a complaint, the use complained of being prior in date to the use of the document in question in evidence in a civil court, the sanction of such court is necessary under section 195(1)(c), criminal procedure code, before a criminal court can take ..... i think also that the reasoning adopted in those cases was approved by the madras high court in in re parameshwaran nambudri 39 m. ..... 545 : (1932) cri. ..... 545 : (1932) cri. ..... that maybe so, but in such a case, if the high court thought that injustice had been done, it could always act in revision. ..... 1932 bom. ..... 1932 bom. ..... (1932) sind 77. ..... 341 : (1932) cr. ..... 1932 sind 90 : 137 ind. .....
Tag this Judgment!Court : Mumbai
Reported in : (1936)38BOMLR440
..... the answer which this court makes is,the court thinks that the answer to the question put by the chief presidency magistrate should be in the negative. ..... , that is, of using a forged document, and a question was submitted to this court by the then chief presidency magistrate in these terms :-whether in the event of an offence punishable under section 471 of the indian penal code being made out in a complaint, the use complained of being prior in date to the use of the document in question in evidence in a civil court, the sanction of such court is necessary under section 195(z)(e) of the code of the criminal procedure, before a criminal court can take cognizance of such offence.and ..... i think also that the reasoning adopted in those cases was approved by the madras high court in re parameshwaran nambudri i.l.r. ..... sanjiv ratnappa : (1932)34bomlr1090 . ..... sanjiv ratnappa : (1932)34bomlr1090 ,. ..... that may be so, but in such a case, if the high court thought that injustice had been done, it could always act in revision. ..... emperor air [1932] sind 90. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1937Bom65; (1936)38BOMLR1034
..... (2) there is no presumption created in favour of custom,- even if the legislative enactment which governs the court provides that the law to be observed in the trial of suits shall be acts of parliament and regulations of the government and in the absence of acts and regulations, the usage of the country in which the suit absence the contrary, it is only when the custom is established that it is to be the rule of decision. ..... lays down several propositions which for convenience i will state categorically:(1) in all cases it lies upon the person asserting that he is ruled in regard to a particular matter by custom,-(a) to prove that he is governed by custom and not by personal law, and(b) to prove what the particular custom is, which he seeks to apply; if he fails to prove the custom, section 5, clause (b), of the punjab laws act, applies, and the rule of decision must be the personal law of the parties subject to the other provisions of the clause. ..... it is deemed to be contrary to justice, equity and good conscience to make the parties act in disregard of their habits, their methods of dealing with property, and the expectations formed as to the devolution of estates, succession and inheritance. ..... sham lal singh the judgment may be admissible under the provisions of sections 13 and 43 of the indian evidence act as only establishing a particular transaction in which the custom was asserted and recognized. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1936Bom280; (1936)38BOMLR562
..... the section provides that the court, in passing a decree for redemption, foreclosure or sale in a suit covered by the act, or in the course of any proceedings under a decree for redemption, foreclosure or sale passed in any such suit, may direct that any amount payable by the mortgagor under that decree shall be payable in such instalments, on such dates and on such terms as to the payment of interest, and where the mortgagee is in possession, as to the appropriation of the profits and accounting therefor, as it thinks fit. ..... justice russell did not notice the difficulty which the decision involved, authorising the executing court to set aside and redraft the decree which it was supposed to be executing, but merely dealt with the question whether the decree referred to in section 15b was the decree nisi, or the decree nisi and decree absolute, and he held that both decrees were referred to in the section. ..... we therefore allow this appeal and refer the matter back to the trial court to deal with the question whether the defendant was an agriculturist at the material date on the merits, and to make an appropriate order according to its finding. ..... the suit is a suit on a mortgage bond and the preliminary decree was made ex parte on september 21, 1932, and on october 4, 1933, the final decree was made ex parte by which it was directed that the plaintiff do recover a sum of rs. .....
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