Court : Mumbai
Reported in : AIR1932Bom562; (1932)34BOMLR1216; 140Ind.Cas.213
..... as a suit for damages for negligence, a difficulty at once arises under section 167 of the act which provides :-no suit shall be commenced against any municipality, or against any officer or servent of a municipality, or any person acting under the orders of a municipality, for anything done, or purporting to have been done, in pursuance of this act, without giving to such municipality, officer, servant or person one month's previous notice in writing of the intended suit and of the cause thereof, nor after six months from ..... damages are claimed in the suit for acts done by the defendants as officers of the municipality, and the provisions as to notice and limitation in section 167 would seem to be necessary a fortiori in the case of a person who has severed his connection with the municipality at the time of the suit. ..... but if the suit is to be treated as one for damages for negligence then the gist of it is that the defendants issued these certificates and made these orders for payment negligently, but the issuing of the certificates and the making of the orders for payment must be regarded as things done in pursuance of the act. ..... the act of the defendants in giving the completion certificates was done in pursuance of their obligations arising under this statute and the rules made thereunder, and was done as officers of the municipality, and acting under the orders of the municipality. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1932Bom392; (1932)34BOMLR815; 140Ind.Cas.262
..... be that as it may, i agree, with respect, with the view expressed in the madras decision rather than in the rangoon decision. ..... there is no authority of this court on the point, but it has been decided by the calcutta and madras high courts and by the punjab chief court that a suit against an insurance company can be brought where the insured died, the death being a part of the cause of action. ..... the madras case is vishvendra thirtha v. ..... admittedly the premia were payable in calcutta, and the policy contains a clause that the amount of the insurance is payable in calcutta, the plaintiff's husband died in ahmedabad, and the company having refused payment for reasons with which we are not concerned at present, the widow sued the company in the court at ahmedabad. ..... it may at first sight appear awkward that an insurance company which insures the lives of people resident in various distant places should be liable to be sued where the insured dies, but as against that, as was pointed out in one of the cases above quoted, it would be equally inconvenient for the heirs of the insured living in distant places to have to bring their suits in the headquarters of the insurance company. ..... i do not, however, think that there can be any reasonable doubt that in the case of a suit against an insurance company to recover the amount of a life insurance policy the death of the assured is a part of the cause of action, because there can be no claim unless the death had taken place. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1932Bom478; (1932)34BOMLR991
..... whatever the view of the madras high court may be, i am unable to agree with the view taken in seetamma a case, and in my opinion, the word 'mere' in clause (e) of section 6 makes the position clear ..... i may point out that in the madras high court itself the soundness of this decision has been doubted in venkatarama aiyar ..... this brings me to the madras decision on which mr ..... he held that as the sale was of land as well as the right to recover mesne profits, and that as mesne profits were in the nature of damages, the whole transaction was void under section 6(e) of the transfer of property act. ..... desai for the appellant has argued that, assuming that the right to recover mesne profits cannot be legally sold, where there is a sale of land and a right to recover mesne profits of that land is sold with it, section 6 (e) of the transfer of property act does not apply, and the sale is valid even though the consideration is not severable ..... eamohandra raju : (1913)24mlj298 , the claim in that case was, as appears from the head-note, to recover damages from an agent for being negligent in collecting rent, and it was held that it was a mere right to sue within the meaning of section 6 (e) of the transfer of property act. ..... act, the prohibition is against the transfer of a mere right to ..... section 6 (e) of the act runs as follows: ' a mere right to sue cannot be ..... it was held that a transfer of a claim for past mesne profits is invalid under clause (e) of section 6 of the transfer of property act. ..... act .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1932Bom509; (1932)34BOMLR987
..... the opinion of two judges of the madras high court seems to be clearly against it, i have already held that the order in this case is a suicient compliance with the provisions of sub-rule (2). ..... the learned judges followed the decision of a full bench of the madras high court in rajagopala ayyar v. ..... the case, therefore, is no authority for the proposition that when a court acting under sub-rule (2) has in fact dispensed with the issue of a notice, the mere fact that it has not recorded its reasons would vitiate the execution ordered to issue. ..... lachmi debi the contention was that no notice was in fact issued and not that the court purporting to act under sub-rule (2) had made an order on the facts before it dispensing with the issue of a notice. ..... the decree was then more than one year old, but the learned judge acting under sub-rule (2) of rule 22 of order xxi, civil procedure code, dispensed with the issue of the notice required by sub-rule (1), he ordered execution to issue and sent the darkhast to the collector for effecting partition. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1932Bom484; (1932)34BOMLR936
..... 17 where a suit was dismissed on the ground that no notice to quit had been served, and it was held that where a former suit between the same parties in respect of the same subject-matter has been dismissed on a preliminary point, a finding in that suit on the mertis in the plaintiff's favour will not bar the defendant from putting forward the same defence on the merits in a subsequent suit by the same plaintiff against the same defendant. ..... naresh narayan roy and the madras decision in ramamini reddi v. ..... applying that teat, it will be seen that in the former litigation the question of whether the plaintiff was or was not the owner of the land or whether the defendant was the owner was an issue which it was necessary to decide before any question such as notice could arise. ..... the question was whether the plaintiffs or the defendants were the owners of the plaint lands, and although the high court did not directly find on the issue regarding ownership, their judgment clearly proceeds on that basis, inasmuch as damages for use and occupation were awarded to the plaintiffs and the defendants were held entitled to a notice to quit on the basis that they were annual tenants. ..... 5 and 9, whether the claim is barred by res judicata as contended by the defendants, and whether the question of the proof of the plaintiffs' sale deed, dated june 28,1919, and the question of the status as yearly tenants are res judicata as contended by the plaintiffs, respectively. .....
Tag this Judgment!Court : Mumbai
Reported in : (1932)34BOMLR590
..... is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences he may be charged with and tried at one trial for any number of them not exceeding three, and then there is a definition of 'offences of the same kind' they are only of the same kind when they are punishable with the same amount of punishment under the same section of the indian penal code or of any special or ..... the courts have laid stress on the words ' as to the mode of trial' in the privy council judgment and drawn a distinction between the provisions of the code relating to the joinder of charges and joint trials and provisions relating to procedure in respect of such matters as the manner of recording evidence, the recording of reasons for adopting a particular course, the form of an order or judgment, and so ..... it has been suggested that the cases might be tried jointly under section 235 or 239(d), as being offences committed in the course of the same transaction; the allegation is that both these offences were committed in order to drive the complainant out of the house which the accused desired him to quit ..... if the authorities acting on behalf of the prosecution come to the conclusion in all the circumstances of the case that it would be better not to proceed with a new trial we have no intention of fetteringtheir discretion.broomfield, j.4 ..... the charges there covered no less than forty-one different acts extending over a period of two .....
Tag this Judgment!Court : Mumbai
Reported in : (1932)34BOMLR771
..... if the matter could be regarded as one of contract, their lordships think that it would fall within the terms of section 65 of the indian contract act, which provides that ' when a contract becomes void '-and their lordships would have no difficulty in holding these words sufficient to cover the case of a voidable contract which had been avoided-any person who has received any advantage under such contract is bound to restore it to the person from whom he received it, or make compensation therefor.13. ..... regarding the transaction, however, as one that has passed out of the realm of contract, it would seem to be met by section 88 of the indian trusts act, which has always applied to the province of oudh. ..... their lordships will humbly advise his majesty that the appeal of satgur prasad should be dismissed, and that of mahant har narain das allowed; and that the decree of the chief court of oudh dated may 2, 1928, should be varied by substituting for the words ' date of the suit' the words 'twenty-fifth of november, 1924,' and by adding after the words 'possession by him' the words 'the defendant-appellant being entitled to credit in the account so to be taken for all sums paid by him .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1932Bom516; (1932)34BOMLR1112; 140Ind.Cas.519
..... raychand, it is urged firstly that chhaganlal cannot recover the amount without the production of a succession certificate under section 214 of the indian succession act; secondly, that the application under order xxi, rule 50, clause (2), is not within time; and thirdly, the appellants being partners who were not personally served in the suit, the award made under a reference, to which only dullabh was a party, is not binding on the other members of the firm and therefore they are not liable to be proceeded ..... the defence in the present case is that the appellants, who were the partners not served in the suit, are not liable by the award decree passed on a reference made by dullabh who had no power to refer the matter to arbitration under section 251 of the indian contract act and under the authorities referred to above. ..... the power to refer disputes, even although they relate to dealings with the firm, cannot be said to be an act done for carrying on its business in the ordinary way...the partner actually referring the dispute is, however, himself bound by the award and the other partners may become bound by ratification.10. .....
Tag this Judgment!Court : Mumbai
Reported in : (1932)34BOMLR764
..... filed against both these decrees by some of the respondents, and on the hearing in the high court the following question, upon which the decision of the appeals turned, was referred to a full bench, viz,:-whether an executor appointed by a hindu will made in the muffassal of the presidency has vested in him the estate of a testator and has all the powers of an executor as set out in the probate and administration act even though such executor does not obtain probate of the will or whether his powers, unless he obtains ..... there has been a divergence of opinion between the high courts of madras and bombay on the one hand, and of calcutta on the other. ..... , as to the effect of the words of section 177(reappearing in the present case as section 4 of the probate and administration act) unaccompanied by probate, was clearly not under the consideration of the board in the case cited, as the authority to transfer under section 31 of the administrator-general's act was expressly dependent upon the grant of probate, and their lordships have no doubt that the words used by lord watson were not intended to have the wider significance which the appellants seek to attribute to them.26. .....
Tag this Judgment!Court : Mumbai
Reported in : (1932)34BOMLR571
..... the sentences passed under the indian arms act were shorter than the sentence under section 307 of the indian penal code, and as the sentences were to run concurrently, it is not necessary to consider the propriety of the conviction under the indian arms act if the conviction under section 307 of the indian penal code stands, this being an appeal from the verdict of a jury, the appellant's case must be limited to points of law, and mr. ..... the facts, so far as it is necessary to state them for the purposes of dealing with the points of law, are extremely few and simple, his excellency sir ernest hotson, the acting governor of bombay, was on the date of the offence paying a visit to the fergusson college, poona, and in the course of the visit, he in company with the principal of the college and certain of the professors and hisaide de-camp went to the college library. ..... according to the rule laid down in section 106 of the indian evidence act when any fact is especially within the knowledge of any person the burden of proving that fact is upon him; and the first illustration to the section is this :when a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.10. .....
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