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1965 (5) TMI 51
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... ... ..... ose contract either under the Common law principles or under the principles adumbrated in the Carriers Act the liability of the common carrier could be limited. As we have already observed, the learned Judge has not approached the matter from a correct angle in dealing with this aspect of the matter. Dhanna Lal was not shown to have any authority from the owner to enter into such a special contract. It is only the plaintiff himself or his duly authorised agent who could relieve the common carrier of his absolute responsibility and this has neither been pleaded properly nor proved by the defendant. Consequently we are of the opinion that the learned District Judge was not justified in reversing the judgment and decree of the trial court. 23. The result is that, we hereby accept this appeal with costs and while setting aside the judgment and decree of the learned District Judge, Kota, dated 19-10-57, we hereby restore the judgment and decree of the learned Munsif dated 16-8-56.
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1965 (5) TMI 50
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... ... ..... may be mentioned that the lower appellate Court was careful enough to say that there was substantial cause for the admission of Ex. P-4. It would be observed that in clause (b) it is definitely mentioned that the appellate Court if it requires the document for "any other substantial cause may allow such evidence to be produced. The words "for any other substantial cause" must be read with the word "requires" in the beginning of the sentence and need not be construed in the narrow sense suggested by the doctrine of ejusdem generis and the power to allow additional evidence may be exercised when any point is required to be cleared up in the interests of justice. Reference may be made to Chitaley's Commentary on the Code of Civil Procedure. Volume IV, at page 4319. (8) The suit of the plaintiff, in my opinion, has been rightly decreed by the lower appellate Court and seeing no force in this appeal. I would dismiss it with costs. (9) Appeal dismissed.
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1965 (5) TMI 49
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... ... ..... f selection to certain posts under it which were higher in the rank held by him and when his services stood temporarily placed at the disposal of the Public Works Department, and that thereby he was subjected to a denial of equal opportunity of promotion, and thereby Article 16 of the Constitution was violated. 10. We accordingly allow this petition and hold that the orders passed by the Board on the 29th April, 1961, and subsequent orders confirming respondents Nos. 4 to 14 shall be inoperative against him, and we further direct that he shall be considered for promotion to the post of an Assistant Engineer for the selection made in 1961 and/or any other selection which might have been held subsequently thereto, and if he is found fit for such posts, he shall be assigned his due seniority according to rules. As for costs we think that as the petitioner's writ petition was framed in a rather inexact and inartistic manner, he should bear his own costs. We order accordingly.
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1965 (5) TMI 48
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... ... ..... the finding that "nothing is due by the plaintiff to the defendants under the transaction, Exhibit 43." There is no substance in this contention. The first appellate Court recorded inconsistent findings. Having held that the Civil Court had no jurisdiction to determine whether defendant No. 1 was a mortgagee in possession or a tenant, the lower appellate Court should have stayed the suit pending decision of that question by the Mamlatdar, and until such a decision was given, the Court could not proceed on the footing that the transaction evidenced by Ex. 43 was a mortgage and the defendant No. 1 was a mortgagee and hold that nothing was due by the plaintiff to the defendants under the transaction. The High Court had ample power to correct this error and to set aside this inconsistent finding in an appeal filed by the plaintiff, though the defendants had filed no appeal or cross-objections. 11. In the result, the appeal is dismissed with costs. 12. Appeal dismissed.
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1965 (5) TMI 47
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... ... ..... and 16(2), the courts have to come to the conclusion that the benefit of the grossing up provision in section 16(2) is only available to a ' shareholder ' and none else. That does not mean that the dividend as such cannot be treated as the income of the real owner of the shares." We do not agree with this decision. In our opinion the case is not consistent with the decision of their Lordships of the Supreme Court in the case of Commissioner of Income-tax v. Shakuntala 1961 43 ITR 352 (SC). That case does not appear to have been considered by their Lordships of the Mysore High Court. Apart from it, as I have already pointed out, there is no reason why the word "shareholder" in section 2(6A)( e) should be given a different meaning. In the result, we would answer question No. 2 in the negative. In view of our answer to question No. 2, it is not necessary to answer the other questions. The assessee is entitled to his costs, which we assess at ₹ 250.
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1965 (5) TMI 46
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... ... ..... Shariat Act was extended to it. In the circumstances, therefore, we hold that the Khan Bahadur was incompetent to make a will and that consequently the property left by him must devolve on his heirs as if he had died intestate. It was contended by Mr. Agarwala that the will was accepted by the heirs of the late Khan Bahadur and therefore the question of his capacity to make it could not arise. Apart from anything else, there is no proof of this on the record. We, therefore, reject his contention. 15. The third point raised by Mr. Agarwala concerned property which we have dealt with while dealing with the question as to the sufficiency of the notice. In view of what we have held there the share of Zarina in the interest held by the Khan Bahadur in the assets of "M/s. Khan Bahadur Ahmed Alladin & Co.," could not vest in the Custodian. That portion, therefore, will have to be left out of consideration. Subject to this modification we dismiss the appeal with costs.
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1965 (5) TMI 45
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... ... ..... y in view of the decision in Greene's case, 1942 AC 284, I think, it would have been necessary to send the case back to the learned Single Judge to consider the affidavit of the respondent in the light of the decision in Greene's case, 1942 AC 284 and then proceed to dispose of the matter. But it is not now necessary as has already been explained. 12. The learned Single Judge has referred three questions to the Full Bench and, ordinarily, when the questions have been answered, the case goes back for disposal in the normal way, but we do not consider that that course should be adopted in the present case just to enable the learned Single Judge to make a formal order of dismissal of the petition of Ram Kumar petitioner, because in view of the answer given to the first question this must follow as a matter of course. In the circumstances, in the wake of that answer, the petition of Ram Kumar petitioner is dismissed. There is no order in regard to costs in this petition.
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1965 (5) TMI 44
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... ... ..... ere validly initiated and it was not necessary to issue the notice under section 34 read with section 22 to every member of the family. That case has no applicability to the present case since the question there was entirely different. Again reference has been made to Mathra Das and Sons v. Commissioner of Income-tax 1933 1 I.T.R. 412. In that case the learned judges of the Lahore High Court rejected the contention of the assessee that the income-tax authorities having accepted the allegation about partition of the family property were estopped in the subsequent years from reopening the question. It must be noticed that in that case this question had not been referred to the court and, secondly, it appears that no order under section 25A had been made. In these circumstances, we must answer the question in the negative and in favour of the assessee. The Commissioner will pay the costs which are fixed at ₹ 200. A.N. GROVER J.--I agree. Question answered in the negative.
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1965 (5) TMI 43
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... ... ..... , if the document clearly discloses an intention to effect a transfer. In the instant case, Ex. B-2 clearly discloses an intention to transfer all the rights of Baithan to defendants 1 to 5, and though the word "surrender" is used and though the deed is styled a release deed, it operates as an assignment. 10. In view of this finding, it must follow that the kanom rights under Ex. A-3 were duly vested in defendants 1 to 5, and they became the kanomdars, and consequently, they are protected from eviction under the Kerala Land Reforms Act, 1963. 11. In view of this conclusion, it is not necessary to consider whether Ex. A-8 operated as an assignment of Koran's leasehold rights in respect of items 3, 4 and 5 of the suit properties in favour of Abubacker and whether Ex. A-10 operated as a sub-lease by Abubacker to Raman. 12. In the result, the appeal is dismissed. In all the circumstances of the case, we direct that there will be no order as to costs of this appeal.
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1965 (5) TMI 42
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... ... ..... leting title. Similarly, the principles decided in the Madras case 1965 56 I.T.R. 29, 33; A.I.R. 1965 Mad. 118 cannot be applied because the suit was not framed in such a way that two groups of persons have been impleaded to fight out their individual rights. On the contrary, the plaint shows that the reliefs claimed are of such general nature that even the assessee's rights in respect of shares including the right to exercise votes and the right to receive the dividends were sought to be jeopardised. It is common knowledge that the insurance company often deals in investments acquired out of the insurance premium and naturally any expenditure for protection of the assessee's business activity cannot but be considered as a revenue expenditure. For the reasons stated above, the answer to the question is in the affirmative and in favour of the assessee who will have its costs of the reference from the applicant. MITTER J.--I agree. Question answered in the affirmative.
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1965 (5) TMI 41
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... ... ..... mitting criminal breach of trust with regard to both the amounts in question. It also appears from the evidence of Laxman, P.W. 6, and Joshi, P.W. 3, that when the audit party arrived the appellant Kale approached Mhaskar for the issue of a blank cash book without any indent. The evidence of Joshi-P.W. 3- also shows that Gupta had, in the presence of the appellant, asked the witness to write the accounts in the rough cash book newly issued. 'The evidence of these two witnesses has been accepted by the lower Courts as true and it has been found that the appellant and Gupta jointly made an attempt to have the accounts rewritten and manipulated. In our opinion, no case is made out for interfering with the conviction and sentence imposed on the appellant under s. 409/109 or s. 477-A of the Indian Penal Code and these appeals must be dismissed. ORDER In Criminal Appeals Nos. 77 of 1962 and 74 of 1965. In accordance with the majority Judgment, these appeals are partly allowed.
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1965 (5) TMI 40
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... ... ..... esser thickness than that of the gold bars. Not one of the so-called jewellers could produce a single receipt to prove the appellant's version that he bought the gold from them; nor did these jewellers produce the books of account of their own to support the appellant's case. The books of account of the appellant do not show any entry to prove that the appellant sent Dharam Chand Jain on 13-11-56 with that huge quantity of gold to Calcutta. 36. So even if Section 178-A of the Sea Customs Act about the burden of proof is not applied to this case, the facts as on records leave no room for doubt that this order of confiscation must be maintained. 37. For these reasons the appeal is dismissed with costs, the hearing fee being assessed at five gold mohurs, and the order of the Collector of Customs is upheld. 38. Let the ad interim order restraining the opposite party from disposing of the gold bars continue for one month from date. Masud, J. 39. I agree. Appeal dismissed.
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1965 (5) TMI 39
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... ... ..... erefore, hold that the family transferred the mortgage interest in trust to the charity for valuable consideration within the meaning of s. 9-A(10)(ii)(b) of the Act. It follows that the mortgage, Ex. A-1, was rightly held by the High Court not liable to be scaled down under the provisions of the Act. In the reply the learned counsel for the appellants sought to raise another plea, namely, that there was no valid transfer of the mortgage deed in favour of the charity inasmuch as the said transfer was not effected by a registered document. This plea was not raised at any stage of the litigation, presumably because Ex. B-3 was a registered document. We cannot, therefore, permit the appellants to raise the plea for the first time before us. In this view it is not necessary to express our opinion on the question whether para (c) of s. 9-A (10) (ii) of the Act was attracted to the mortgage in question. In the result, the appeal fails and is dismissed with costs. Appeal dismissed.
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1965 (5) TMI 38
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... ... ..... ion was an adventure in the nature of trade and the Income-tax Officer had no grounds upon which he could hold that it was not. The fourth and last proposition of Mr. Mitra, therefore, does not also help him. I beg to add that it is not an exceedingly simple case and we have to give our most anxious consideration. There are different questions of law involved in it. The application of old principles to the particular facts was also considered. According to my understanding, and I think authority, it seems to me that in this case, whatever may be the case under different facts, it has all the elements of an adventure in the nature of trade and I am content to hold that the profits made must be assessable to tax and the revenue is justified in so assessing. I accordingly answer the questions in the affirmative and against the assessee who must pay the costs of this reference to the respondent. Certified for two counsel. DATTA J.--I agree. Questions answered in the affirmative.
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1965 (5) TMI 37
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... ... ..... of the case, we shall assume that the appellant was constructively in police custody and therefore the information contained in the first information report leading to the discovery of the dead bodies and the tangi is admissible in evidence. The entire evidence against the appellant then consists of the fact that the appellant gave information as to the place where the dead bodies were lying and as to the place where he concealed the tan,-,', the discovery of the dead bodies and the tangi in consequence of the information, the discovery of a blood-stained chadar from the appellant's house and the fact that he had gone to Dungi Jharan Hills on the morning of August 11, 1963. This evidence is not sufficient to convict the appellant of the offenses under s. 302 of the Indian Penal Code. In the result, the appeal is allowed, the conviction and sentence passed by the Courts below are set aside, and the appellant is directed to be set at liberty forthwith. Appeal allowed.
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1965 (5) TMI 36
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... ... ..... the appellant that s. 16(3) would not apply because the tenant had been ejected on August 22, 1956 and thereafter the sub-tenant could not claim the benefit of S. 16(3). In the present case the benefit of s. 16(3) was given to the sub-tenant not after August 22, 1956 but before that date i.e. on August 9, 1956. That order so far as it went was final and was not open to review or cancellation by the Controller who had thereafter only to fix the rent under the second part of s. 16(3). While going on with the proceeding for fixation of rent, the Controller could not set aside the order already made under the first part of S. 16(3) on August 9, 1956 and insofar as he did so, he acted without jurisdiction. The Appeal Court was therefore right in setting aside the order of the Controller and the High Court was equally right in dismissing the application by the appellant except as to fixation of rent. The appeal therefore fails and is hereby dismissed with costs. Appeal dismissed.
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1965 (5) TMI 35
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... ... ..... s evidence and the order of the High Court deprived the appellant of the benefit of the presumption. There is no force in this argument which may be raised invariably in all cases in which the powers under S. 428 are exercised. There was a serious defalcation of money. The money was received and the only question was whether it was deposited or not. Oral evidence showed that it was not. The accused insisted that the books of account should have been brought and so they were brought as a result of the order. The accused himself demanded that evidence and but for the vagueness of his demand, this evi- dence would have been produced earlier. Rather than take, a different view of the oral evidence, the High Court rightly thought that interests of justice and fair play demanded that this additional evidence should be taken. In our judgment, the High Court acted within the powers conferred by the Code. The appeal. thus has no substance. It fails and is dismissed. Appeal dismissed.
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1965 (5) TMI 34
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... ... ..... Shri Lalvani will continue to function as Custodian's Manager for these concerns in terms of s. 10 (2) (b) of the Administration of Evacuee Property Act, 1950 read with rule 34 of the rules made thereunder". It was submitted on behalf of the appellant that in view of these two letters it must be held that there was a final allotment of the business in favour of the appellant. We do not, however, think there is any justification for this argument. It is manifest that the terms and conditions of allotment were not finally settled between the parties and there was no concluded contact of sale and, therefore, the appellant had no legal right to the business of the two concerns and the High Court was right in holding that the appellant was not entitled to the grant of a writ in the nature of mandamus with regard to the possession of the two business concerns. In our opinion, there is no merit in these appeals which are accordingly dismissed with costs. Appeals dismissed.
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1965 (5) TMI 33
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... ... ..... ch reference has been made is reported in 68 C.W.N. 1109 (Makhan Lal Sen v. Director of Panchayats, Government of West Bengal (A. I. R. 1963 S. C. 395). In this case the order of appointment was made by the Director of Panchayats who was the competent authority under a Government notification. But before the order was communicated to the petitioner it was recalled and cancelled. On these facts this court decided that an order to be effective must be completed and it can only be completed when it is communicated to the person against whom and in whose favour it has been made, that is to say, the person who would be affected by that order. Until such communication is made, it could be varied as many times as necessary. This case also, we are afraid, cannot be invoked in aid of the petitioner for the reasons as stated by us before. In the premises the application is rejected and the leave asked for is refused. Opposite party will get costs of this application. GUPTA J.-I agree.
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1965 (5) TMI 32
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... ... ..... at Chandigarh and that if he was to be required to produce the same at Amritsar, there would be no inconvenience to him and it is perhaps for this reason that the impugned notices in the present case were issued. Now the policy of the department, as suggested by Shri Nehra, is to pass orders of transfer in all pending assessments before a dealer is required to appear before another Assessing Authority. Shri Nehra, who has plainly stated that the petitioner-assessee was suspected by the department to be taking steps to evade legitimate taxes and that is why the impugned notices were issued, has also agreed that he would have proper orders of transfer made in these cases. It would in the circumstances serve the ends of justice if we direct the respondent to proceed further on these notices only after securing necessary orders of transfer, and we direct accordingly. In the circumstances of this case, there would be no order as to costs. NARULA, J.-I agree. Ordered accordingly.
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