Court : Mumbai
Reported in : (1934)36BOMLR1195
..... it is now also common ground that at the date of the institution of the present suit, an action by the defendant for specific performance of the plaintiff's agreement to sell to him the southern half-plot would have been in time, but that by august 3, 1925, when the defendant was allowed by the acting district judge to amend his written statement, such an action would have been barred by the indian limitation act, section 3, first schedule, article 113. ..... having apparently some doubt as to whether in his written statement he had sufficiently and properly pleaded by way of defence the plaintiff's agreement to convey the southern half-plot to him, the defendant asked leave to amend, and on august 3, 1925, he was allowed by the acting district judge to add the following paragraph:that this defendant further pleads that as plaintiff has agreed to convey the [half] plot to this defendant, and as possession is with him, he could not be legally evicted.7. ..... 'that an english equitable doctrine affecting the provisions of an english statute relating to the right to sue upon a contract should be applied by analogy to such a statute as the transfer of property act and with such a result as to create without any writing an interest which the statute says can only be created by means of a registered instrument appears to their lordships, in the absence of some binding authority to that effect, to be impossible. .....
Tag this Judgment!Court : Mumbai
Reported in : (1934)36BOMLR976
..... it is to be noted that the sections referring to partnership in the said act have been repealed and are now embodied in the indian partnership act, 1932.37. ..... , 1 1/16 of 4, with the chetties in the colombo business, that the said partnership began on may 15, 1908, and was dissolved as from the date of the institution of the suit, and the usual direction for the taking of accounts between the parties to the partnership.45. ..... this is an appeal against a decree of the high court of judicature at madras, dated september 9, 1929, reversing the decree of the court of the subordinate judge of ramnad, at madura, dated january 18, 1927.2. ..... their lordships do not consider it necessary to refer at any length to the evidence to which their attention was drawn with much care by learned counsel at the hearing of the appeal; it is sufficient to say that in their opinion the evidence, both documentary and verbal, shows conclusively that 'k.v.r. ..... 1 to 3 were concerned, the entire family property was liable, because the family had the advantage of the said moneys and most of the family properties were purchased with the money got from the partnership firm.19. ..... the prayer, which is material to the present appeal, was for a declaration that the alleged partnership was dissolved on march 26, 1924, or from the date of the suit, and a direction for accounts of the partnership dealings, including the personal accounts of the partners.17 ..... 2 and 3 appealed to the high court at madras, which allowed the appeal. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1934Bom420; 153Ind.Cas.1041
..... , in delivering the judgment, expressly slated that in the view the court took the matter it was not necessary, nor was it desirable for them to decide, whether on the acceptance of the indent the relations of the parties became crystallized into those of purchasers and vendors pure and simple, because apart from that the court held that under the terms of the indent, viewed in the light of the custom of the bombay market, the plaintiffs were not under any obligation to account for the difference to the defendants. ..... viewing the transaction from another point of view, i think that, even if the transactions be not pure transactions of sale and purchase, it is evident that the defendants acted as the agents of some undisclosed foreign principals in the transactions and, under the terms of the contracts, including the conditions on the reverse, undertook to carry out those transactions on behalf of their undisclosed foreign principals. ..... 1) sent by the defendants to the plaintiff on february 26 and march 6, 1932, are tendered. ..... it appears that the plaintiff passed in favour of the defendants two documents, which are called indents, on february 20, and march 4, 1932, respectively. .....
Tag this Judgment!Court : Mumbai
Reported in : (1934)36BOMLR867
..... , and having done so they arrived at the conclusion that the entry of the sitting-room in the deed was not a fictitious entry within the meaning of the decision of the board already cited, and although on the facts of the present case one could not help feeling that the parties to the sale-deed under consideration attempted to juggle with the registration law, still the question was whether they had overstepped the bounds laid down by the law, and the learned judges felt that that question ..... the pedigree filed by the rani in 1805 if admissible is clearly a relevant admission under section 21 against the present rani as her representative in interest and an admission within the definition in section 18 of the indian evidence act.upon this issue, therefore, their lordships find themselves in agreement with both courts below.they now proceed to consider the third question raised by the appeal-whether the registration of the sale-deed of october 30, 1922, was valid?the deed is a registrable instrument under section 17 of the indian registration act, 1908. ..... 402 instances a pedigree showing a common ancestor as remote as or remoter than the common ancestor in the present case without any suggestion made that this remoteness raised any presumption of separation as to the impartible estate either in the high court of madras or in the judgment of the board. .....
Tag this Judgment!Court : Mumbai
Reported in : (1934)36BOMLR858
..... it is clear on these authorities that the right of the representatives of the deceased partner is one of property and does not rest merely on contract, and that the surviving partners, who have the right and duty to realise the partnership property, hold a fiduciary relationship towards the deceased partner's representatives as regards his interest in the partnership property, though the latter have no such right in any individual asset of the partnership property as will entitle them to interfere with the surviving partners' right to deal with and ..... but there are two outstanding documents in this period, the first of which consists of public notices by handbills and by advertisement in the madras mail and the fort st. ..... these provisions are among the rights and obligations which are continued after dissolution for the purposes of winding up by section 263, and, in their lordships' opinion, there is no material difference between them and the provisions of sections 24 and 39 of the english act, except that section 262 of the indian act is in more absolute terms than section 39 of the english act.17. ..... 101 of 1932) will, in effect, apply equally in the remaining appeals.2. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1934Bom431; (1934)36BOMLR901; 153Ind.Cas.283
..... it is said that this is a mere rule of procedure which does not affect or take away the inherent power of the mahajan to inquire into an offence committed by a member of the community against the community itself, and the power to inquire into the alleged offence was delegated as a matter of procedure to the managing committee, and that in spite of such delegation the mahajan as a whole did not surrender its inherent jurisdiction to the managing committee, and was not deprived of its inherent jurisdiction. ..... now, it appears that in the month of august, 1904, certain rules were made by this caste, and it was provided that all the work of the mahajan would be carried on according to the rules so long as no changes were made therein, and that the various committees and servants of the mahajan and the mahajan itself should act agreeably to the rules. ..... the plaintiff claims a declaration that the resolution dated august 26, 1932, expelling him from the caste is invalid and of no effect, and an injunction to restrain the defendants from giving effect to the resolution. ..... in the month of august, 1932, namely, on august 3 and 9, the plaintiff wrote two letters to defendant no. .....
Tag this Judgment!Court : Mumbai
Reported in : (1934)36BOMLR881
..... the plaintiff's case is that the defendant is infringing his patent after having come to know of his process from a man called varmani, and the defendant's answers are : (1) that the process described in exhibit a to the plaint is not an invention; (2) that the plaintiff is not the true and the first inventor of it (3) that the process claimed by the plaintiff has been publicly used long before the issue of the patent by a firm of which the plaintiff was a partner and was known to all the employees of the firm; and (4) 'that ..... , in england, the patent act of 1835 specifically required the delivery of the particulars of the objection by the defendant to the plaintiff, and so also the act of 1883 ; and now the rules of the supreme court provide for the same. ..... two things, public user or private user for excessive profits which will prevent the invention being a new one, and these two matters seem to be based on two principles underlying the law relating to patents, the first being that there must be no disclosure to the public before the letters patent are applied for, since, if the public already knows the secret there is no consideration for the patent; and the second being that even if there is no public, disclosure, still ..... july 4, 1931, the plaintiff applied for letters patent in respect of his process of treating almonds, and the letters patent were granted on april 27, 1932, the grant relating back to the date of the application.2. ..... in his solicitors' letter of june 7, 1932,. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1935Bom41; (1934)36BOMLR1083; 155Ind.Cas.516
..... justice seshagiri ayyar expressed the view that the courts acting upon the principles of the english law would have no power to relieve against forfeiture where there has been a denial of title, unless the tenant proves that the denial was occasioned by the fraud, mistake or accident of the landlord, and that the tenant himself was neither careless nor negligent. ..... i think there is a good deal to be said for the view that where the transfer of property act does not apply, the disclaimer of the landlord's title, even though clear and unequivocal and even though made in a judicial proceeding, would not operate as a forfeiture of the tenancy, unless it amounts to an estoppel or comes within the mischief of the rule that a man may not approbate and reprobate, or is made in such circumstances that it would render the tenant's possession adverse to the landlord.18. ..... hence, verbal or written denials of a tenancy have rendered a notice to quit unnecessary; but it does not appear that they have effected a forfeiture of the term.so that two propositions appear to follow from the judgment of their lordships in this case : (1) that there can be no forfeiture by disclaimer in cases not covered by the transfer of property act unless the disclaimer is in matter of record (see in that connection vidyavardhak sangh company v. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1934Bom348; (1934)36BOMLR681; 153Ind.Cas.899
..... 273 it was held that where, after an inquiry as to the nature of the property, of which the judgment-debtors had notice, the court, in execution of the decree, caused certain immoveable property to be sold by auction as non-ancestral, the judgment-debtors standing by and neglecting to supply the court with any information as to the nature of the property sold, it was not competent to the judgment-debtors subsequently to seek to have the sale set aside upon the ground that the property was ancestral and ought to have been dealt with ..... a different view was taken by the madras high court in subramania aiyar v. ..... the learned subordinate judge has taken the view that the annulment of the order of adjudication resulted in the property vesting again in balkisandas, and automatically revived the attachment which had been subsisting on it on the date of the adjudication and which had been raised as the result of the adjudication. ..... the lower court has held that the appellant is estopped from raising the contention with regard to the improper description of the property in the proclamation of sale because he had been aware of the defect in the proclamation long prior to the sale and took no steps to get the error corrected when it was his duty to have done so. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1934Bom370; (1934)36BOMLR798; 152Ind.Cas.575
..... therefore, when the appellant filed the darkhasts in this case he was met by the plea that the respondents-judgment-debtors had carried out the terms of the agreement and paid the amount for which they were liable under the agreement and that it was his duty to have the darkhasts marked satisfied.14. ..... those two matters are dealt with in this country by sections 55 and 74 of the indian contract act, and unless the present case can be brought under one of those heads, in my judgment, the court has no power to relieve the respondents from the consequences of their failure to carry out strictly the terms of their agreement.7. ..... the learned counsel for the appellant has admitted that this case is binding on us; but he asks us to hold that, as the payments were not; certified within the proper time, and as the judgment-debtors cannot now certify the payments, we cannot take them into account, and, therefore, we have no evidence to show that the respondents-judgment-debtors actually complied with the terms of the decree. ..... in my opinion, the contract is of the latter class, and the law relating to penalties, and section 74 of the indian contract act, have no application. ..... a court of equity will relieve against a penalty, and will also refuse to enforce strictly stipulations as to time where it is satisfied that the parties themselves did not intend those stipulations to be acted upon strictly. .....
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