Court : Mumbai
Reported in : AIR1932Bom466; (1932)34BOMLR849
..... compels the court to record a compromise in accordance with the terms 'so far as it relates to the suit' under order xxiii, rule 3, but where the compromise is plainly outside the suit, the court may refuse to incorporate it in the decree; but where it is a consideration of the compromise and therefore intimately connected with it, the words 'relates to the suit' are wide enough to embrace such a term of the compromise, as for instance, the consideration for the compromise, even though this consideration may be entirely outside the scops of the suit ..... and relate to property which was never in question in the ..... a perfectly proper and effectual method of carrying out the terms of rule 3 of order xxiii would be for the decree to recite the whole of the agreement and then to conclude with an order relative to that part that was the subject of the suit or to introduce the agreement in a schedule to the decree, but the operative part of the decree should be confined to the subject-matter of the suit. .....
Tag this Judgment!Court : Mumbai
Reported in : (1932)34BOMLR528
..... the learned judges held that faiyaz-un-nisa, although she was at the time of the agreement the de facto guardian of the plaintiffs, who were then minors, had no power to deal with their property, and consequently that she had no authority to enter on their behalf into the agreement to refer the disputes to arbitration, which, if acted upon, would necessarily affect the immoveable property of the infant plaintiffs.34. ..... the main issue raised in the court of the subordinate judge was whether faiyaz-un-nisa, acting on behalf of her minor children, the plaintiffs, was competent to refer to arbitration the matter of the division of the assets of mohammad husain and questions connected therewith, and consequently whether the plaintiffs were bound by the award.28. ..... it is obvious that the district judge did not consider the question which is now before their lordships, and the mere fact that the court subsequently found the mother a fit person to act for the minors would not validate the arrangement, which in its inception was invalid.46. ..... 713 the head note of which is as follows:-the mother, as the de facto guardian of minors, is not competent, under the mahomedan law, to enter on their behalf into an agreement to refer to arbitration any dispute, even where there is no dejure guardian of the minors, such agreement being one which will necessarily, if acted upon, involve dealings with the immovable properties of the minors. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1932Bom226; (1932)34BOMLR453
..... 1895 he had been a congressman; that he was president of the congress committee for the hangaltaluka from march to august 1921; that the non-co-operation movement began in december 1920 ; that at the nagpur session of the national congress, which was in 1920, the creed of the congress was changed-instead of dominion status by gradual progress, the object of attainment of swarajya was substituted. ..... of this rather vague phrase says that ' legitimate 'does not mean, as one would rather have expected 'in accordance with law'; it means, according to him, whatever is necessary or may be deemed necessary, by the congress provided it is also peaceful, the argument was developed on these lines: it is the duty or it may be the duty of a faithful subject to criticise government, and if the criticism is not listened to, then it may even be the duty of a faithful subject to resist and oppose government. ..... then he says that the hangal committee, of which, as i have stated, he was the chairman, became part of the congress organisation, and he says 'i subscribed to the creed of the congress before i accepted the office,' and he says further that the object of the congress was not to destroy government but to displace ..... however that may be, it seems to me perfectly clear that a subject, who like the plaintiff is in the enjoyment of special privileges on condition of his remaining a faithful subject of the british government, may fairly be expected to show a higher sort of allegiance than that .....
Tag this Judgment!Court : Mumbai
Reported in : (1932)34BOMLR508
..... the settlement of the mokhasa amaniya village of kosamala made in orabout 1869 by the court of wards acting on behalf of the plaintiff's late grandfather, the then trustee of the gods sri kamaswami and srijagannadhaswami of parlakimedi, and continued since about 1869, by which the said village has been annually leased out at a money-rent determined according to fixed block-rates, is beyond the powers of a trustee and is not binding on the plaintiff, who is the present trustee of the said gods;(b) for a declaration that the plaintiff as the present trustee of the ..... said gods is entitled to claim rent in kind from the defendants .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1932Bom222; (1932)34BOMLR447
..... i am inclined to hold that under sections 101 102 and 103 of the indian evidence act the burden of proof should properly be thrown upon the plaintiff, even if it be assumed, however, that the burden of proof is in the first instance on the defendants, one of the defendants has gone into the witness box and sworn as follows :-even at the time of the negotiations for the compromise we told plaintiff that we were no longer in possession and plaintiff might take possession immediately. ..... the order on the defendants to deliver up to the plaintiff immediate possession involves a holding that the plaintiff was entitled to possession, and consequently to the profits which would accrue from the land after she got possession; and if the learned judge is right it really involves a finding that the court which passed that decree in march 1927 made two inconsistent orders, first, an order that the plaintiff was entitled to possession, and, secondly, an order that the plaintiff was not entitled to the profits of the land ..... in such a suit the decree is to be passed in accordance with rule 18 of order xx, that is to say, it declares the respective shares of the parties in the property to be partitioned and thereupon the proceedings are forwarded to the collector under section 54 of the code and the collector proceeds to make the actual partition of the land. ..... that decision and the reasons given for it are in conflict with a decision-of the full bench of the madras high court in doraiswami v. .....
Tag this Judgment!Court : Mumbai
Reported in : (1932)34BOMLR494
..... the facts which are relevant to this part of the appeal are as follows:the property, which is the subject-matter of the suit, is situated in the district of etah, in the united provinces, in these provinces there is no advocate-general who could act under section 92 of the code of civil procedure. ..... on february 2, 1923, the legal remembrancer, acting in pursuance of the above-mentioned order of the government, granted sanction to the plaintiffs to institute the suit, in which this appeal arises.18. ..... the terms of the sanction are as follows:-with reference to their application dated november 13, 1922, and acting under the powers conferred on the undersigned by section 93, code of civil procedure, and government order no. ..... that part of the decision in the cited case, which dealt with the question relating to section 93 of the code, was to the effect that the fact that the government had, by the order of december 6, 1912, appointed in general terms the legal remembrancer to exercise the powers conferred on the advocate-general by sections 92 and 93 of the code, did not prevent the government from giving an express sanction to the collector to institute the suit in that case, that the legal remembrancer was not the only official who could maintain the suit, that the sanction .....
Tag this Judgment!Court : Mumbai
Reported in : (1932)34BOMLR500
..... the preamble of the act is in these terms :-whereas, in several districts of the madras presidency, large expenditure out of government funds has been, and is still being, incurred in the construction and improvement of works of irrigation and drainage, to the great advantage of the country and of proprietors and tenants of land : and whereas it is right and proper that a fit return should, in all cases alike, be made to government on account of the increased profits derivable from lands irrigated by such works: 3. ..... in other words, if the water rights claimed are within the property which was, so to speak, enfranchised by the jumma fixed at the permanent settlement, then the sanad which fixed the jumma is an engagement within the meaning of the act, of course, the permanent settlement was dealing with the government right to a payment which represented and replaced the melvaram of more ancient times, but the test is the same as the test which would be applied to a conveyance. ..... the cess bore to be levied in virtue of the provisions of the madras irrigation cess act, no. ..... there have been in the madras courts a considerable number of cases dealing with the act of 1865. ..... but counsel for the government did not argue that the act of 1905 made the river belong to the government, and as the natural rights of persons are expressly excepted, it can have no effect on the riparian rights of the parties in the present case.9. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1932Bom486; (1932)34BOMLR931
..... it only directs that certain suits shall not be tried by such courts and this bar is removed under section 24, sub-section (4), of the code of civil procedure when an order of transfer is made under that section.if section 16 of the provincial small causes courts act had the effect of making courts other than those governed by that act incompetent to try 'small cause suits', then section 24, sub-section (4), civil procedure code, need not have been enacted at all since ..... with respect, it seems to me that the view taken by the madras high court is likely to lead to inconvenience, because the small cause court powers conferred on regular subordinate judges' courts are in most oases restricted to a maximum of rs. ..... in the circumstances, with respect, i am not prepared to follow the view of the madras high court, and i am of opinion that sub-section (4) of section 24 gives the power to transfer a suit from a small cause court to a regular court irrespective of the small cause powers of the court to which the suit is transferred. ..... the difficulty arises from sub-section (4) of the section, which if the view adopted by the madras high court is followed, does not seem to have much point. ..... there is no direct ruling on the point beyond the madras high court ruling already referred to, though similar cases have frequently arisen, but no objection seems to have been taken on this score. ..... this is the view accepted by a single judge of the madras high court in murugesa mudaliar v. .....
Tag this Judgment!Court : Mumbai
Reported in : (1932)34BOMLR282
..... and wrong in that, i think further that the insult, if any, was not intended or known by the accused to be likely to lead to a breach of the public peace or any other offence' it was no doubt perfectly natural for the shareholders present to resent the use of this rude language, and to call the attention of the chairman to the conduct of the accused in using it, and it was proper for the chairman to deal with the accused. ..... if a calls b a bastard in circumstances which suggest that he means what he says, that no doubt does reflect on the chastity of b's mother, and nobody would suggest that it was not an insult to b, but when you find that the accused described all the members present at this meeting-we are told about forty members were present-of whose antecedents the accused presumably knew nothing at all, as bastards, it seems to me quite impossible to suppose that he meant literally that they ..... that it was likely that the persons present at the meeting would so far lose control of themselves as to commit a breach of the public peace when they had got the chairman of the meeting in control and capable of dealing with the matter, i think the application must be allowed and the conviction set aside. ..... , rather unfortunate that the learned magistrate did not recall to his mind the terms of section 95 of the indian penal code and decline to go into the matter at all, because it is really the sort of case which ought not to be allowed to take up the time of the criminal courts.3. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1932Bom122; (1932)34BOMLR343; 137Ind.Cas.461
..... , he must hold the property for the benefit of the persons having such interest, or the residue thereof (as the case may be) to the extent necessary to satisfy their just demands.section 95 says:-the person holding property in accordance with any of the preceding sections of this chapter must, so far as may be, perform the same duties, and is subject, so far as may be, to the same liabilities and disabilities as if he were a trustee of the property for the person for whose benefit he holds it,' now section 19 of the indian trusts act runs as follows ..... :- a trustee is bound (a) to keep clear and accurate accounts of the trust .....
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