Court : Mumbai
Reported in : AIR1933Bom190; (1933)35BOMLR147
..... then article 11 of the indian limitation act provides that the claim by a person against whom inter alia the following order has been made to establish the right which he claims to the property comprised in the order, namely, an order under the code of civil procedure, 1908, on a claim preferred to or an objection made to the attachment of property attached in execution of a decree, must be brought within one year from the date of the order. ..... as material, provides that where any claim is preferred to, or any objection is made to, the attachment of any property attached in execution of a decree on the ground that such property is not liable to such attachment, the court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector and in all other respects as if he was a party to the suit : provided that no such investigation shall be made where the court considers that the claim or objection was designedly or unnecessarily delayed. ..... i would refer particularly to the decision of the full bench of the madras high court in venkataratnam v. ..... then rule 63 provides that where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of such suit, if any, the order shall be conclusive. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1933Bom179; (1933)35BOMLR168
..... 271:-their lordships do not think that in this state of the authorities it is possible to accede to the present contention that section 49 of the indian contract act gets rid of inferences, that should justly be drawn from the terras of the contract itself or from the necessities of the case, involving in the obligation to pay the creditor the further obligation of finding the creditor so as to pay him.in this case admittedly there is no indication appearing on the face of the contract or in the evidence or other circumstances of the intention of the parties where on breach of the agreement the deposit was to be returned. ..... therefore, although in this case the contract was made in madras, even assuming the breach took place in madras because the letter cancelling the agreement was sent from madras, there can be little doubt that the contract was intended to be performed within the jurisdiction of the surat court, at least in part and that being the case, i think the court would have jurisdiction to try this suit.11. ..... in any ease there is no dispute about the following facts : that the agreement was entered into in madras ; that the plaintiffs were to act as sole agents in the surat district and to secure business for the defendant in that district; and finally the sum of rs. .....
Tag this Judgment!Court : Mumbai
Reported in : (1933)35BOMLR174
..... 749 where it was held that section 167 of the indian evidence act applied to criminal trials by jury and that when part of the evidence, which has been allowed to go to the jury, is found to be irrelevant and inadmissible, it is open to the high court in appeal either to uphold the verdict upon the remaining evidence on the record or to quash the verdict or to order a re-trial, and that the law as settled in england by the decision in the queen v. ..... if, on the other hand, the evidence is sufficient for conviction, it is not necessary for the court to send the case for re-trial even though there may be misdirection or admission of irrelevant evidence, as the court can accept the verdict of the jury under section 167 of the indian evidence act, unless the court is of opinion that it is difficult to arrive at any conclusion on the evidence and that it is necessary or desirable that a re-trial should be ordered.13. ..... the view of the madras high court in emperor v. ..... vasudeo gogte : (1932)34bomlr571 , for the witness whom gogate's advocate wanted the public prosecutor or the court to call was not likely to favour the defence.18. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1933Bom194; (1933)35BOMLR271
..... the applicant's case rests on section 15 of the aden act which sets out, for the guidance of the courts, that :-in the administration of civil justice, the court of the resident shall be guided by the spirit and principles of the laws and regulations in force in the presidency of bombay, and administered in the courts of that presidency not established by royal charter, and in the high court in the exercise of its jurisdiction as a court of appeal from those courts.the section is a very wide one, and its generality seems to me to cause the difficulty in applying it as here desired. ..... the applicant, based his case on section 15 of the aden act, which is in these terms :-in the administration of civil justice, the court of the resident shall be guided by the spirit and principles of the laws and regulations in force in the presidency of bombay, and administered in the courts of that presidency not established by royal charter, and in the high court in the exercise of its jurisdiction as a court of appeal from those courts.he contends that by virtue of this section the court at aden was empowered and bound to apply the whole of the provincial insolvency act .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1933Bom122; (1933)35BOMLR144
..... but the madras court took the view that if the acts of user relied upon to establish an easement were in fact exercised under a claim of ownership, then they could not be held to establish the easement. ..... motibhai : air1932bom513 , as i understand the decision of the madras high court, it comes to this, that there is no objection to a man pleading in the alternative that he is the owner of a piece of land, and that if ho is not the owner, he is entitled to an easement over it. ..... we have been referred to a good many cases on the subject, and the authorities were all discussed in a full bench decision of the madras high court in subba rao v. ..... however, for the purposes of this case i will assume as correct the law as found by the madras high court. ..... that i understand to have been the view of the madras court, and mr. ..... 204) :-i only desire to add that in both the lower courts the case has been tried on the footing that the plaintiffs claim by way of easement the right of way over a strip of land which, according to the defendant, forms part of his land. ..... the two main issues raised in the trial court were : first, whether the plaintiff proved that the yard to the north of the proposed wall belonged exclusively to the plaintiff, and that issue was answered in the affirmative. ..... the defendants pleaded that the yard in question was in the joint ownership of the plaintiff and the defendants, and in the alternative they claimed a right of way over the court-yard from their premises to the road. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1933Bom112; (1933)35BOMLR38
..... now, it is clear from the scheme of the act, to which i have briefly referred, that the right, if any, of the petitioner is exhausted after the application of the petitioner is entertained by the court, and it is entirely the court's privilege upon the application to direct an inquisition, and the matter thereafter becomes one really between the court and the alleged lunatic. ..... i do not think that a contingent right of maintenance which may or may not be declared and dependent on there being property or not belonging to the lunatic, is such a right as would make the order in question a 'judgment' within the meaning of the current of decisions as to what a 'judgment' is under clause 15 of the letters patent, it can hardly be disputed that an inquisition under the indian lunacy act is primarily in the interest and for the benefit of the alleged lunatic and not in the interest of any one else.8. ..... he says, first of all, that the wife has certain contingent rights in the property of the lunatic, because the court might make an order giving her some right of maintenance out of the property of the lunatic under section 46 of the indian lunacy act, and that the order affects those rights. ..... now in order to understand the preliminary objection, it is necessary to consider the nature of the proceedings taken by the appellant, the petition is headed 'in the matter of the indian lunacy act and, in the matter of ismail sakhi' &c. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1933Bom80; (1933)35BOMLR26
..... 691) :-he comes to the conclusion that it is not necessary that it should be named at the time of making the call, and therefore he says, where you have no proof at all, that is, where there is an absence of proof hut you find an act done which ought to be dona by the authority of the directors, you must assume it to have been done by their authority :...then dealing with the facts of the case before him, jessel m.r. ..... in the most formal manner the company purported to forfeit the appellant's shares, and thereby to terminate the contractual relations between the company and the appellant, and for some two years they acted upon the view that the forfeiture was valid. ..... 690):-now, it is quite clear that the act of parliament does not require the day for the call to bo named in the same resolution as the one by which the call, is made. ..... in that case the company was governed by table a of the companies act, 1862, and it appears to me that article 4 is substantially in the same terms as article 18 in the present case. ..... nor does the act of parliament require the day to be named by any particular formal act by the directors. ..... but in my view the burden is upon the company to displace the presumption that the agents acted properly. ..... nor does the act of parliament require the day to bo named by any particular formal act by the directors. ..... 16), and it appears to me that the 22nd section of that act is substantially in the same terms as article 18 in the present case. .....
Tag this Judgment!Court : Mumbai
Reported in : (1933)35BOMLR15
..... in that case it was held that the decision of the court that the applicant was not in the circumstances of the case competent to avail himself of the benefit of the stay section of the arbitration act by reason of steps taken by him in the proceedings in the suit determined that the controversy between the parties must be decided by that court and not by arbitration and was a judgment within the meaning of the letters patent and as such was appealable under clause 15. mr. ..... justice greaves had held by his order that the applicant was not, in the circumstances of that case, competent to avail himself of the benefit of that section by reason of steps taken by him in the proceedings in the suit, and went on to point out that that decision virtually determined that the controversy between the parties must be decided by that court and not by arbitration, and he took the view that such a decision was a 'judgment' within the meaning of the letters patent.5. ..... 241 where it was laid down, adopting the views which had been accepted by the calcutta high court, that 'judgment' in clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability, but that if the order or judgment in question merely regulates procedure of the suit then it is not a judgment within clause 15.2. ..... at page 101 chief justice couch said as follows :-it was held by the high court at madras in de souza v. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1933Bom469; (1933)35BOMLR998; 147Ind.Cas.362
..... and intestate matters, and rules 583 to 649 of the high court rules regulate the procedure of the court in dealing with those matters, it was argued on behalf of the defendant that the words 'for the more convenient despatch of business' occurring in section 4 of the judicature act of 1925 are not found in either of these two rules, but under section 13 of the indian high courts act, to which i have referred above, the rules are to be made for the exercise of jurisdiction by single judges or division courts in such ..... on august 22, 1932, the plaintiffs took out a notice of motion for an order revoking the grant of probate and for appointment of a receiver and for injunction. ..... one hirabai widow of madhavji makanji died at bombay on or about january 1, 1932, leaving a will dated december 20, 1931, of which the defendant is the executor. ..... defendant applied to this court for probate on july 12, 1932, and probate was granted to him on august 5, 1932. ..... , on february 2, 1932(unrep. ..... nene (1932) o.c.j. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1933Bom87; (1933)35BOMLR18
..... or deeds revocable or irrevocable or by his last will or any codicil thereto expressly referring to this power wholly or partially to alter or vary the trust powers and provisions herein declared and contained concerning the trust premises hereby settled or the moneys or properties for the time being representing the same or any of them or any part thereof and by the same or any other dead or deeds or will or codicil to appoint and declare any now or other trusts or powers of and concerning ..... that dictum is adopted with approval by a majority of the full bench in the madras high court in the case of pathukutti v. ..... 5 directs that the trustees are to stand possessed of the remaining sixty per cent, of the gross rents and income of the trust premises upon the trust there set-out,-those trusts being in effect for muhammadan charities, and the last paragraph of that clause provides that 'the trustees shall have full discretion to apply the said sixty per cent, of the gross rents and income to any of the above-mentioned objects in such order either one after the other or to one .....
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