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Case Laws
Showing 1 to 19 of 19 Records
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1951 (10) TMI 31
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... ... ..... h of their story at any rate to that extent. He has not been called. So also the man who first saw the occurrence, namely Ghani, has not been called. 8. The only reason the High Court give for accepting the confession is because the learned Judges considered there was intrinsic material to indicate its genuineness. But the only feature the learned Judges specify is that it contains a wealth of detail which could not have been invented. But the point overlooked is that none of this detail has been tested. The confession is a long and rambling one which could have been invented by an agile mind or pieced together after tutoring. What would have been difficult is to have set out a true set of facts in that manner. But unless the main features of the story are shown to be true, it is, in our opinion, unsafe to regard mere wealth of uncorroborated detail as a safeguard of truth. 9. For the reasons given above, we allow the appeal, set aside the conviction and acquit the appellant.
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1951 (10) TMI 30
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... ... ..... ferent from those in 'Subbayya v. Anantaramayya', 53 Mad 34 (F B). The Court below entirely overlooked the distinction pointed out in 'Subbayya v. Anantaramayya', 53 Mad 84 (F B), between the liability of the father to meet the marriage expenses of the daughter when he is possessed of joint family property, & the liability of such a father when he is not possessed of any joint family property. 9. It follows that the judgment of the Courts below dismissing the suit on the ground that there is no liability on the part of the father, has to be set aside. The case has to go back to the trial Court for an enquiry as to the amount to which the plaintiffs would be entitled. 10. In the result, the second appeal is allowed and the case remanded to the trial Court for disposal according to law and in the light of the observation made above. The appellants will have refund of the court-fee paid by them in this second appeal. I make no order as to costs. 11. No leave.
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1951 (10) TMI 29
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... ... ..... tatement of the other defendants needs no further reference; for the mortgage debt was during the pendency of the suit in the trial Court paid up, issues raised thereupon deleted, these defendants were not impleaded as respondents in the lower appellate Court, nor are the parties before us. 4. The judgment of the trial Court appears to have been delivered by instalments. On Farwardi 5, 1353 Fasli February 7, 1944, it decided Issue No. 7 in the case, which related to whether the 'Siaha' (marriage certificate) was compulsorily registrable and whether in absence of such a registration it was admissible in evidence. It held that as under Section 116 of the Hyderabad Transfer of Property Act the provision of S. 110 of the Act about the registration of a deed of gift was not applicable to Mohammadans, there can be oral gift; but if the transaction was reduced into writing, it was registrable; such an unregistered document, however, was admissible for the collateral purpose.
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1951 (10) TMI 28
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... ... ..... des that certain appeals which were heard by a Bench of two Judges should in future be heard by a Judge sitting alone takes away the vested right of appeal and can therefore be deemed to operate only in respect of appeals which arise out of suits instituted on or after the relevant date. 21. For these reasons I am of the opinion that the new rule framed by this Court cannot apply to any second appeal arising out of a case which was instituted in a Court of law before the 8th day of May 1951. My answer to the question referred to the Full Bench must therefore be in the negative. J.L. Kapur, J. 22. I agree with the opinion of Bhandari, J., in regard to cases falling within Section 109(a) and Section 109(b) of the Code but I entertain some doubts in regard to cases under Section 109(c). No useful purpose will however be served by any elaboration of the doubts as a majority of the Bench has reached a clear conclusion on the point. S.S. Sodhi, J. 23. I agree with A.N. Bhandari, J.
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1951 (10) TMI 27
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... ... ..... as the department had to reject the accounts and to arrive at the profits on the basis of an estimate, taking the comparable cases into consideration. The assessee cannot expect the department to disclose not only the basis on which they proceeded to make the assessment but also to give further details regarding the comparable cases. If an investigation of that kind were permitted, there will be no end to the enquiry and the assessment could never be made. The assessee no doubt was entitled to get such of the information regarding the comparable cases as could possibly be disclosed by the department with a view to apprise him of the basis on which the estimate was made. We do not think that he is entitled to detailed information regarding the business of those assessees where profits were taken as the standard of comparison. The application, therefore, for reference under Section 66(2) must be dismissed with costs of the Income Tax Commissioner, which we fix at ₹ 150/-.
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1951 (10) TMI 26
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... ... ..... e question of attestation was framed by the learned Subordinate Judge. On the whole, our conclusion is that the view taken on this point by the Subordinate Judge is right and it is difficult to hold on the internal evidence furnished by the contents of the document itself taken along with the statement of witnesses that the bond was attested in due and proper manner. This being our view, the other question as to whether we should pass a mortgage decree in this case in exercise of our powers under Order 41, Rule 33, Civil Procedure Code, in spite of the fact that the plaintiffs did not challenge the decision of the trial court by way of appeal or cross- objection does not require to be considered. 16. The result is that the appeal is allowed, the judgments and decrees of both the courts below re set aside and the plaintiffs' suit dismissed. Having regard to the facts and circumstances of this case, we would direct that each party would bear its own costs in all the courts.
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1951 (10) TMI 25
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... ... ..... ssary to found the jurisdiction to make an order, or give a decision, deprives the order or decision of any conclusive effect; but it is otherwise where the order is good on its face and the Court adjudicating has jurisdiction to determine the existence or not of the condition, and the party denying its existence has neglected his opportunity of raising the objection at the hearing." This observation is based on the decision given in River Ribble Joint Committee v. Croston Urban District Council 1987 1 QB 251. My own view of the matter is that although the mere fact that the points involved in the questions framed are not necessarily precluded from being raised at this stage simply because they were not raised in the appeals before the Tribunal, the nature of the questions is such, involving matters of fact as well as law, that I do not think they ought to be allowed to be raised at this stage. I would accordingly dismiss the applications with costs. Khosla, J.-I agree.
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1951 (10) TMI 24
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... ... ..... ction 8 of the Essential Supplies Act and sentenced to 9 months rigorous imprisonment and a fine of ₹ 1,000 by the 1st Class Magistrate of Barrackpore. The Sessions Judge of 24-Parganas dismissed the appeal preferred by the accused. A revision application filed by him in the High Court shared the same fate. 16. The legal argument urged in this appeal was the same as in the earlier appeal, and has to be repelled as untenable for the reasons already stated. A special point was sought to be argued that the element of mens rea was wanting. But the question was considered by the High Court, and it was held that there are two facts from which mens rea could be inferred. When questioned, the accused stated that he was loading handloom bales and not millmade cloth. He had no permit with him and was not able to produce any even from his employers. These facts under the circumstances warrant the inference of a criminal intent. 17. This appeal also will therefore stand dismissed.
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1951 (10) TMI 23
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... ... ..... culated to prevent circulation of the papers and was, therefore bad There are observations in 'Macray v. The United states', (1904) 195 U S 27 49 Law Ed. 78, tending in the same direction. 54. Thus notwithstanding the recognition of the rule that powers of taxation are absolute subject only to limitations contained in the Constitution, these passages would seem to recognise the principle that in the case of "constitutionally protected rights" the reasonableness of the tax and whether it is calculated to destroy the rights are matters open to judicial review. 55. No question has been raised in this case that the duty is such as to destroy the right and it is, therefore, unnecessary to consider it further. 56. In the result, I agree with my Lord the Chief Justice that this application should be rejected without costs. 57. We certify that this case involves a substantial question of law as to the interpretation of the Constitution and in particular Article 19.
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1951 (10) TMI 22
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... ... ..... certain specified laws already passed from the combined operation of article 13 read with other relevant articles of Part III. The new articles being thus essentially amendments of the Constitution, Parliament alone had the power of enacting them. That the laws thus saved relate to matters covered by List II does not in any way affect the position. It was said that Parliament could not validate a law which it had no power to enact. The proposition holds good where the validity of the impugned provision turns on whether the subject-matter falls within or without the jurisdiction of the legislature which passed it. But to make a law which contravenes the constitution constitutionally valid is a matter of constitutional amendment and as such it falls within the exclusive power of Parliament. The question whether the latter part of article 31B is too widely expressed was not argued before us and we express no opinion upon it. 22. The petitions fail and are dismissed with costs.
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1951 (10) TMI 21
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... ... ..... cannot be said to have carried on business in Bombay at the date of the institution of the suit. (39) On all the grounds aforesaid, I agree with the order proposed by my Lord the Chief Justice. Curiam, J. (40) The appellant wanted the Court to assume jurisdiction both with regard to moveable and immoveable properties, with regard to immoveable properties the appellant has substantially failed. But ho has succeeded in getting Mr. Justice Shah's order reversed as far as the Vikhroli property and the moveables are concerned. We think that the fairest order with regard to costs will be that the respondents must pay to the appellant half the costs of the appeal and half the costs of the hearing before Mr. Justice Shah. (41) Mr. Justice Shah, in view of the fact that he held that the Court Had no jurisdiction, dismissed the summons taken out by the plaintiff for discovery and inspection. The learned Judge will now pass the proper order on that summons. (42) Order accordingly.
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1951 (10) TMI 20
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... ... ..... hether it is the equity recognised in Ramsden’s case(1), or it is some other form of equity, is not of much importance. Courts must do justice by the promotion of honesty and good faith, as far as it lies in their power. As pointed out by Jenkins C.J. in Dadoba Janardhan’s case (Dadoba Janardan v. The. Collector of Bombay (1901) I.L.R,. 25 Born. 714), a different conclusion would be "opposed to what is reasonable, to what is probable, and to what is fair." I am of the opinion that the decision of the Privy Council in Ariff v. Jadunath ((1931) 58 I.A. 91) is not applicable to the facts before us, as the doctrine of part performance is not being invoked here as in that case, to clothe a person with title which he cannot acquire except by the pursuit of or in conformity with certain legal forms. Here, as pointed out already, the Corporation became the full and absolute owner of the site on the lapse of SO years from the date of the grant. Appeal dismissed.
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1951 (10) TMI 19
Whether directions in the nature of interim relief only could be granted under article 226, when the Court expressly stated that it refrained from determining the rights of the parties on which a writ of mandamus or directions of a like nature could be issued?
Held that:- Appeal allowed. Article 226 cannot be used for the purpose of giving interim relief as the only and final relief on the application as the High Court has purported to do. If the Court was of opinion that there’ was no other convenient or adequate remedy open to the petitioners, it might have proceeded to investigate the case on its merits and come to a decision as to whether the petitioners succeeded in establishing that there was an infringement of any of their legal rights which entitled them to a writ of mandamus or any other directions of a like nature; and pending such determination it might have made a suitable interim order for maintaining the status quo ante. But when the Court declined to decide on the rights of the parties and expressly held that they should be investigated more properly in a civil suit, it could not, for the purpose of facilitating the institution of such suit, issue directions in the nature of temporary injunctions, under article 226 of the Constitution. In our opinion, the language of article 226 does not permit such an action. On that short ground the judgment of the Orissa High Court under appeal cannot be upheld.
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1951 (10) TMI 18
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... ... ..... industry. From this point of view, a dealer who buys small quantities of jari or silk required solely for use on hand-loom cloth produced as a cottage industry will not be debarred from claiming exemption under Rule 25. I consider that the Board should be content with laying down this principle, leaving it to the (1) 1950 1 S.T.C. 153. Sales Tax Commissioner to determine in each case what quantities of materials of embroidery can be regarded as required strictly for the pur- pose indicated. In the light of the principle laid down, it is open to him to review his decision, should the circumstances of a case make it just and proper he should do so. So far as this case is concerned, however, the appellant has no valid claim for exemption. Even if on the question of dealings in jari he should have an arguable case, his dealings in power-loom cloth are sufficient to negative any claim he may have on other grounds. The appeal, therefore, fails and is dismissed. Appeal dismissed..
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1951 (10) TMI 17
Court – Jurisdiction of ... ... ... ... ..... irtue of clauses 22 and 23 of the Adaptation of Laws Order, 1950, read with Article 372 of the Indian Constitution which came into force on 26th January, 1950. By virtue of the aforesaid clauses, the law which was in force in India continues to be so in force unless altered by some Legislature or authority empowered to regulate the matter in question. The law in force in India would include all notifications enabling courts to entertain suits of a particular character. In our opinion, therefore, the District Judge, Nagpur, had the jurisdiction to entertain the present winding up proceedings and was competent to pass the order that he did. We, therefore, proceed to consider the question whether the compromise should be accepted or not, and also to decide the appeal filed by Shri K. S. Chitnavis. In view of the fact that Shri Dabir appeared before us mainly at our instance, we do not think that any order about the costs of hearing this question of jurisdiction should be passed.
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1951 (10) TMI 15
Compromise and arrangement ... ... ... ... ..... pay its debts. Clearly, section 38 does not touch the powers of the court to sanction a scheme of arrangement between a banking company and its creditors or any class of them or between such company and its members or any class of them, if that scheme of arrangement or compromise is covered by the provisions of section 153 of the Act. In this connection it is significant to notice that section 153 of the Act is applicable in the case of a going company as well as a company in liquidation. For the foregoing reasons I am of the view that section 38 of Act X of 1949 does not take away the powers of the court to act under section 153 of the Act in relation to the affairs of a banking company which is unable to pay its debts. In the result, I overrule the objection raised and order that C.O. No. 128 of 1950 and C.O. No. 136 of 1951, will be put up for further proceedings on the 9th of November 1951, and 19th of October 1951, respectively. No order as to costs in these proceedings.
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1951 (10) TMI 13
Company – Incorporation of ... ... ... ... ..... st any of the partners of the firm for breaches, if any, of the terms of the partnership agreement, that remedy is to sue in damages such partners as may have committed a breach of the terms of the agreement. But surely the remedy is not to sue an altogether third person, an independent person, namely, the company, for accounts of the business done by it, a business which does not belong to any of the members of the partnership firm and does not also belong to any of the shareholders of the company. In these circumstances, therefore, Appeal No. 805 of 1949 is allowed, although I hold, on a question of fact, that the partnership firm known as the Dhulia-Amalner Motor Owners Union has not been dissolved. On the question of costs, I think it would be proper to make no order as to costs in this appeal, since on a point on which a very considerable amount of argument was advanced by both sides, namely, a point of alleged dissolution of the partnership firm, the appellant has lost.
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1951 (10) TMI 2
Whether, on the facts and in the circumstances under which the sum of ₹ 8,197 was dealt with by the respondent, it is a permissible deduction from his income under section 10(2)(xi) of the Income-tax Act in the assessment year?
Held that:- The facts are that when a division was made between the partners on the 12th September 1942, the books of the partnership were closed, an account of the debtor was opened in the family books and be was debited with the amount of ₹ 8,197, indicating that he became a debtor of the new partnership of the business and the debt became a loan advanced by the assessee's money-lending business to the debtor. When later on there were payments, the debtor received credit for such payments in this account with the respondent and must have got a discharge receipt from him. He was thus recognised as a debtor of the new firm and the amount in question being a loan of the money-lending business of the respondent, it was an admissible deduction under section 10(2)(xi) of the Act. Appeal dismissed.
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1951 (10) TMI 1
Whether, on the facts of the case, the expenditure incurred by the assessee company in registering for the first time its trade marks which were not in use prior to the 25th February, 1937, is revenue expenditure and an allowable deduction under Section 10(2)(xv) of the Indian Income-tax Act ?
Held that:- In our opinion, this is neither such an asset nor an advantage so as to make payment for its registration a capital expenditure. In this connection it may be useful to notice that expenditure incurred by a company in defending title to property is not considered expense of a capital nature. Where a sum of money is laid out for the acquisition or the improvement of a fixed capital asset it is attributable to capital, but if no alteration is made in the fixed capital asset by the payment, then it is properly attributable to revenue, being in substance a matter of maintenance, the maintenance of the capital structure or the capital asset of the company. In our opinion, the advantage derived by the owner of the trade mark by registration falls within this class of expenditure. The fact that a trade mark after registration could be separately assigned, and not as a part of the goodwill of the business only, does not also make the expenditure for registration a capital expenditure. That is only an additional and incidental facility given to the owner of the trade mark. It adds nothing to the trade mark itself. Appeal dismissed.
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