Court : Mumbai
Reported in : AIR1933Bom239; (1933)35BOMLR462
..... 472 that the word 'coercion' in section 72 of the indian contract act is used in its general and ordinary sense, its meaning not being controlled by the definition of 'coercion' in section 15 of the act, and that where the plaintiff, who was the sole proprietor of certain mills, was compelled to pay to the defendant under protest the money on a decree, obtained by the defendant against a limited company, under attachment against his property, he was entitled to recover back the amount on the ground that the payment was involuntary and was ..... made under coercion under section 72 of the indian contract act.9. ..... 30 and by the madras high court in kummakutty v. ..... this decision of our own court has been followed also by the madras high court in kummakutty v. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1933Bom253; (1933)35BOMLR368
..... it is conceded by the learned advocate for the appellant that act i of 1929, by which limitation with regard to the recovery of property belonging to a religious or charitable endowment was altered, will not apply to the present suit, which is brought in 1924, but he contends that under the rulings of the madras high court there is no limitation for a suit of this character, and that nilmony singh v. ..... it was held that the suit was barred by limitation either under article 134 or article 144 of schedule ii of the indian limitation act, and that the possession of the defendants, who professed to derive title not from the idol but ignoring its rights, must be taken to have become adverse to the idol from the dates of the two alienations, and each succeeding manager does not get a fresh start as far as the question of limitation is concerned, on the ground of his not deriving title from any ..... his life, and in these circumstances the proper inference is that it was so continued, and consequently the possession never became adverse until his death.these observations with regard to the receipt of rent and the creation thereby of a new tenancy will have no application to the present case, where the property was gifted absolutely about fifty years ago, and from that date the succeeding mahants of the math have received nothing from the defendants, nor has their title ..... the learned advocate for the appellant has relied on a recent madras case, rama reddy v. .....
Tag this Judgment!Court : Mumbai
Reported in : (1933)35BOMLR1162
..... 919 the madras high court has held that under section 146 of the code of civil procedure it would be permissible to recognise the validity of the transfer of a part of the decree and allow execution thereof by the transferee, and that order xxi, rule 16, is no bar to the application of that section ..... rule 16 provides for the interest of any decree-holder in the decree being transferred and empowers the court to execute the decree on the application of the transferee in the same manner and subject to the same conditions as if the application was made by such decree-holder.if assignment of part of a decree is valid, i do not see why the assignee should not apply to be allowed to execute the decree jointly with the decree-holder interested in the remainder on the analogy of a joint decree-holder applying for execution under rule 15 ..... there cannot be an absolute assignment within section 25, sub-section (6) of the judicature act, 1873, of a definite part of an existing debt or other legal chose in action; and the court of appeal on the ground that as the original judgment-creditor could only issue a single execution upon his judgment and could not split up the judgment debt and issue separate executions upon the different parts, he could not give to an assignee of a part of the judgment-debt a right which he did not himself possess. ..... by a deed of transfer dated february 29, 1932, the plaintiffs assigned to the applicant their right, title and interest under the decree in respect of rs. .....
Tag this Judgment!Court : Mumbai
Reported in : 147Ind.Cas.1119
..... favour of one or more persons, rule 16 provides for the interest of any decree-holder in the decree being transferred and empowers the court to execute the decree on the application of the transferee in the same manner and subject to the same conditions as if the application was made by such decree-holder.if assignment of part of a decree is valid, i do not see why the assignee should not apply to be allowed to execute the decree jointly with the decree-holder interested in the remainder on the analogy of a joint decree-holder applying for execution ..... 649 the madras high court has held that under section 146 of the code of civil procedure it would be permissible to recognise the validity of the transfer of a part of the decree and allow execution thereof by the transferee, and that order xxi, rule 16, is no bar to the application of that ..... cannot be absolute assigment within section 25, sub-section (6) of the judicature act, 1873, of a definite part of an existing debt or other legal chose in action; and the court of, appeal on the ground that as the original judgment-creditor could only issue a single execution upon his judgment and could not split up the judgment debt and issue separate executions upon the different parties he could not give to an assignee of a part of the judgment-debt a right which he did not himself possess. ..... a deed of transfer dated february 29, 1932, the plaintiffs assigned to the applicant their right, title and interest under the decree in respect of rs. .....
Tag this Judgment!Court : Mumbai
Reported in : (1933)35BOMLR223
..... lieu thereof decreed (a) that currimbhoys should make over possession of all lands, surface and underground mentioned in the plaint save and except the lands covered by the conveyance from the sarkars in their favour, dated november 25, 1924, with a declaration that the plaintiff creet was entitled to recover damages to the extent of his share in the lands at karabagan during the period from july 28, 1924, to november 25, 1924 ; and (b) that in respect of such damages ..... the subordinate judge held that possession of all lands in the mouza by the defendants must be attributed to the possession given to jamalls by the plaintiff and that, in view of section 116 of the indian evidence act, they could not question the title of the plaintiff till ..... that, as assignees of jamalls, they were entitled to a decree for specific performance of a contract concluded in may, 1920, as maintained by them, or, failing that, a contract to be implied from the possession then obtained by them and the subsequent actings of both parties, whether these amounted to a waiver of the condition as to a formal agreement, leaving the remaining terms as a concluded contract, or necessarily implied the conclusion of a new agreement. ..... and any such claim has long ago suffered limitation under article 113 of schedule i to the indian limitation act, which prescribes a period of three years from the date fixed for performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1933Bom272; (1933)35BOMLR397
..... it would, therefore, in view of the opinion of sir dinshah mulla, which, though not binding on us, is entitled to great respect, be unsafe to exempt the sister in bombay from the operation of act ii of 1929, on the ground of custom, but apart from this in view of the fact that the act, if literally interpreted, while designed to improve the position of the sister, has actually the contrary effect in bombay, i would adopt the view that the act was not intended to affect the position of the sister in bombay, and this being so, the sister is the preferential heir to the brother's widow. ..... are two views possible, one, that in view of the words of the act the sister must rank in the order of succession after a father's father, and the other, which is the view adopted by sir dinshah mulla in his hindu law, is that her place in the order of succession is not affected by the act, for the act contemplates succession after the father's father while her place as determined by a series of decisions since 1865 is immediately after the father's mother. ..... it cannot be saved on the ground of custom, for otherwise a sister in the madras presidency should still rank as a bandhu on the ground of custom, she having been recognized as such in that presidency for upwards of half a century ..... a son's daughter and daughter's daughter were recognised as heirs only in the bombay and madras presidencies, but only as bandhus. ..... in madras in addition to the abovenamed certain other female heirs are recognised as .....
Tag this Judgment!Court : Mumbai
Reported in : (1933)35BOMLR185
..... now, clause 5 is in these terms:-shall within 18 hours from leaving custody report himself to the police sub-inspector, karmala, and thereafter shall not without the permission of the police sub-inspector, karmala, leave the area comprised within the municipal limits of karmala.so far as the second part of that clause is concerned, it seems to me that the accused cannot be convicted of leaving the area comprised in the municipal limits of karmala when in fact he has never entered that area. ..... the learned advocate general has explained that in that case he understood from his instructions that the first class magistrate who tried the case had not been given special powers under the ordinance, and on that basis the advocate general admitted that the fine was beyond the jurisdiction of the magistrate in making our order we acted upon what the learned advocate general told us to be the facts. ..... balkrishna phansalkar : (1932)34bomlr1523 and i only desire to say that i adhere to the view which i expressed in that case that the effect of section 57 of the ordinance, and the government notification thereunder of january 5, 1932, is to confer upon the several district magistrates jurisdiction within their own districts. ..... 10, in which he says:-the week expires tomorrow and therefore i am leaving bombay tomorrow night by madras mail.3. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1933Bom245; (1933)35BOMLR388; 145Ind.Cas.164
..... but our law is quite different and under section 63 of the indian contract act every promisee may dispense with, or remit, wholly or in part, the performance of the promise made to him, or may extend the time for such performance, or may accept instead of it any satisfaction which he thinks fit. ..... in an early decision of this court it was held that a hindu family is regarded as a corporation whose interests are necessarily centred in the manager, the presumption being that the manager is acting for the family unless the contrary is shown : gam savant bal savant v. ..... speaking for myself, i think it is difficult for us on the facts in this case to give relief to defendants, if they are entitled to any on this equitable principle, because, as i have pointed out, the finding of the trial court was that no payment to narhari was proved, and the finding of the district judge is too vague for the court to act upon. ..... where property has been acquired in business by persons constituting a joint hindu family by their joint labour, the question arises whether the property so acquired is joint family property, or whether it is the joint property of the acquirers, or whether it is ordinary partnership property within the meaning of the indian contract act. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1933Bom187; (1933)35BOMLR276
..... in the appeal to the privy council the principal question was whether the decision in the earlier litigation commenced under the provisions of the land acquisition act, was res judicata on the question as regards the the interest of the widow under the settlement deed and their lordships observed that in their lordships' opinion the decision given in 1897 by the high court at madras was a clear and complete determination as between the parties to that suit and those claiming under them, which the present litigants could not dispute. ..... rao that the specific provisions as regards right of appeal in apportionment cases given by the earlier act no longer find a place in the present act and for the simple reason that it appears that in the old act by two separate sections rights of appeal were given in the matter of an award and also against orders apportioning the compensation amount between the claimants. ..... the point which arose before the privy council in that case was of a different nature, and, although the order determining the apportionment of the compensation is not, in view of the privy council ruling, an award within the meaning of section 54 of the land acquisition act, that only means that it is not governed by the provisions regarding appeal contained in the latter part of that section. .....
Tag this Judgment!Court : Mumbai
Reported in : (1933)35BOMLR202
..... 529):-that decision was not based upon the fact that the deceased husband was a separated hindu, nor was it based upon the fact that at the time of the adoption, the widow who made the adoption had vested in her the whole or any part of the property which had belonged to her husband. ..... 191) :-upon the review which we have made of the authorities applicable in this part of india, we are of opinion that in the mahrata country, wherein the property in question in this suit is situate, a hindu widow may, without the permission of her husband, and without the consent of his kindred, adopt a son to him, if the act is done by her in the proper and bona fide performance of a religious duty, and neither capriciously nor from a corrupt motive.14. ..... the clause printed in italics represented the madras view which was held in a later case to be inapplicable in bombay: see ramchandra v. ..... now both these cases were from madras, and according to the law as stated in the commentaries of that school, a widow, who has not the express authority of her husband, cannot adopt a son to him without the consent of his kinsmen. ..... ' in both the cases the high court at madras considered that, in the absence of the husband's father, the consent of any kinsman was sufficient, but the board intimated its dissent from that view. .....
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