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Supreme Court Monthly Digest December 1950

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Agricultural Income tax Act, 1944 (Bengal) – S. 65 – Suit in civil court for declaration and injunction restraining assessment proceedings-Maintainability. Hiralal J. Kania (CJ), M. Patanjali Sastri, J. Saiyid Fazal Ali, J. B.K. Mukherjea, J. N. Chandrasekhara Aiyar, J. State of Tripura v. Province of East Bengal, AIR 1951 SC 23 : 1951 (19) ITR 132 [Supreme Court of India, 04-12-1950]

Civil Court Act, 1948 (Bombay City) – Whether the Act XL of 1948, is ultra vires the Legislature of the State of Bombay – Whether in any event Section 4 of the above Act is ultra vires the State Legislature – Whether the Bombay High Court has jurisdiction to try the suit. Mukerjea, J. M.C. Mahajan, J. P. Sastri, J. Dass, J. Fazl Ali, J. State of Bombay v. Narottamdas Jethabhai, AIR 1951 SC 69 : (1951) 53 Bom. L.R. 402 : 1951 SCR 51 [Supreme Court of India, 20-12-1950]

Civil Law – Suit for declaration of title and confirmation of possession and other ancillary reliefs. Kania, P. Sastri, S.R. Das, JJJ. Sheodhari Rai v. Suraj Prasad Singh, AIR 1954 SC 758 [Supreme Court of India, 01-12-1950]

Civil Procedure Code, 1908 – S. 48 – Execution of Decree – Application after 12 years from decree and 3 years from order on last application – Fraudulent concealment of property to prevent execution – Maintainability of application – Limitation – Fraud preventing execution against particular property – Whether saves limitation under Art. 182 – Applicability of S.18 – Decree directing payment of deficit court fee before execution – Whether conditional decree – Starting point of limitation – Time spent in proceedings to adjudge judgment debtor insolvent, whether should be excluded. Hiralal J. Kania, (CJ), N. Chandrasekhara Aiyar, J. Sudhi Ranjan Das, J. Yeshwant Deorao Deshmukh v. Walchand Ramchand Kothari, AIR 1951 SC 16 : 1950 SCR 852 [Supreme Court of India, 01-12-1950]

Civil Procedure Code, 1908 – Section 149 – the power of the High Court to allow an amendment is clearly one under which the plea of the bar of limitation may be ignored. The contention therefore that by allowing the amendment the High Court took away the valuable right to plead the bar of limitation cannot be accepted. Kania, C.J. P. Sastri, S. Das, JJ. Mahasay Ganesh Prasad Ray v. Narendra Nath Sen, AIR 1953 SC 431 : 1951 KLT 28 [Supreme Court of India, 01-12-1950]

Constitution of India – Arts. 14, 19 (1) (f), 19(5), & 32 – “Deprivation of property”, “Property”, “Acquisition”, “Taking Possession”, “Equal Protection” – Meanings of – Right to apply under Art. 32 – Corporation’s right to apply – Shareholders’ right. Hiralal J. Kania (CJ) Saiyid Fazal Ali, J. M. Patanjali Sastri, J. B.K. Mukherjea, J. Sudhi Ranjan Das, J. Charanjit Lal Chowdhary v. Union of India, AIR 1951 SC 41 : 1950 SCR 869 [Supreme Court of India, 04-12-1950]

Constitution of India – Arts. 134, 136 & 374 (4) – Special Leave to Appeal -Judgment of Hyderabad High Court passed before 26th Jan. 1950 -Application for Special Leave – Maintainability – Pendency of application for leave to appeal to Judicial Committee of Hyderabad when new constitution came into force – Effect of – Scope of Art. 136 – “Any court or tribunal in the territory of India” – Interpretation of Statutes – Presumption of prospective operation – Right to appeal. Hiralal J. Kania (CJ), Saiyid Fazal Ali, J. M. Patanjali Sastri, J. B.K. Mukherjea, J. Sudhi Ranjan Das, J. N. Chandrasekhara Aiyar, J. Janardhan Reddy v. State, AIR 1951 SC 124 : 1951 CriLJ 391 : 1950 SCR 940 [Supreme Court of India, Crl.M.P. No. 71 of 1950 14-12-1950]

Contempt of Court – If it is a fact that the District Magistrate was away on tour and was not aware of the order of the High Court, that fact must be regarded as a good defence in a contempt proceeding – If there was no intention to flout or disobey the order of the High Court that must also be regarded as an important circumstance. Fazl Ali, B. Mukherjea & C. Aiyar, JJJ. H.P. Singh v. Thakur Prasad Tewari, AIR 1953 SC 436 : 1953 CriLJ 1837 [Supreme Court of India, 21-12-1950]

Contract Act, 1872 – S. 212 – Damages – Remoteness of Damage – Agent neglecting to insure goods against fire – Goods destroyed by explosion -Liability of agent. Hiralal J. Kania (CJ), M. Patanjali Sastri, J. Sudhi Ranjan Das, J. Pannalal Jankidas v. Mohanlal, AIR 1951 SC 144 : 1950 SCR 979 [Supreme Court of India, C.A. No. 71 of 1949 21-12-1950]

Contract Law – Specific Performance – Offer to purchase leasehold right – Stipulation that lesses should obtain consent of lesser – Lessor unreasonably refusing consent – Lessee, whether relieved of liability to assign – Suit for specific performance by purchaser – Maintainability – Lease deed – Covenant prohibiting assignment of lease without lessor’s consent, “such consent, however, not to be unreasonably withheld in case of respectable person” – Meaning and effect of covenant. Hiralal J. Kania (CJ), Sudhi Ranjan Das, M. Patanjali Sastri, J. Kamala Banjan Roy v. Baijnath Bajoria, AIR 1951 SC 1 : 1950 SCR 840 [Supreme Court of India, 01-12-1950]

Explosion (Compensation) Ordinance, 1944 (Bombay) – Ss. 14 & 18 -Ordinance granting compensation for damage by explosion – Loss by explosion not covered by policy – Loss of compensation under Ordinance by failure to insure – Whether direct or remote damage – Claim by principal against agent, whether barred by Ordinance. Hiralal J. Kania (CJ) M. Patanjali Sastri, J. Sudhi Ranjan Das, J. Pannalal Jankidas v. Mohanlal, AIR 1951 SC 144 : 1950 SCR 979 [Supreme Court of India, C.A. No. 71 of 1949 21-12-1950]

Hindu Law – Will – Construction – General Principles – Presumption against intestacy. Gnanambal Ammal v. T. Raju Ayyar, AIR 1951 SC 103, 1950 SCR 949 [Supreme Court of India, C.A. No. 13 of 1950 21-12-1950]

Income Tax Act, 1922 – S. 4A (b) – Hindu Undivided Family – Residence -Tests – Occasional visits to India and attending to family affairs there – Effect of – Burden of proof – “Control and management “, “situated “, “wholly” and “affairs “, meanings of. Saiyid Fazal Ali, J. B.K. Mukherjea, J. N. Chandrasekhara Aiyar, J. Subbayya Chettiar V.V.R.N.M. v. Commissioner of Income Tax, Madras, AIR 1951 SC 101 : 1951 (19) ITR 168 : 1950 SCR 961 [Supreme Court of India, C.A. No. 38 of 1949 21-12-1950]

Income Tax Act, 1922 – Ss. 10 (2) (xv) & 66 – Reference – Jurisdiction of High Court – Duty to decide case on facts stated by Tribunal – Accepting arguments of counsel as proved facts and basing decision on them – Impropriety of – Business Expenditure – Payments to avoid disclosure of misfeasance of directors – Burden of proof. Hiralal J. Kania (CJ), M. Patanjali Sastri, Sudhi Ranjan Das, JJ. Commissioner of Income Tax, West Bengal v. Calcutta Agency Limited, 1950 SCR 1008, AIR 1951 SC 108 : 1951 (19) ITR 191 [Supreme Court of India, C.A. No. 59 of 1950 21-12-1950]

Income tax Act, 1922 – S. 25 – Death of person carrying on business -Executors carrying on business as going concern for selling it under terms of will – Whether “succeed in such capacity “to testator – Date of succession. Hiralal J. Kania (CJ), M. Patanjali Sastri, Sudhi Ranjan Das, JJ. Executors of the Estate J.K. Dubash v. Commissiner of income tax, Bombay City Bombay, AIR 1951 SC 111 : 1951 (19) ITR 182 : 1950 SCR 969 : 1951 Tax Pub (DT) 63 [Supreme Court of India, 21-12-1950]

Independence Act, 1947 – S. 9 – Indian Independence (Legal Proceedings) Order, 1947 – Art. 4 – Indian Independence (Rights, Property and Liabilities) Order, 1947 – Arts. 10 (2), 12 (2) – Notice on Ruler of State for return of income under Bengal Agricultural Income tax Act, 1944 – Suit for declaration of invalidity of Act and injunction restraining Income tax Officer from proceeding with assessment – Partition of India pending suit – Property falling within Province of East Bengal – Jurisdiction of court in West Bengal to proceed with suit against Province of East Bengal. Hiralal J. Kania (CJ), M. Patanjali Sastri, J. Saiyid Fazal Ali, J. B.K. Mukherjea, J. N. Chandrasekhara Aiyar, J. State of Tripura v. Province of East Bengal, AIR 1951 SC 23 : 1951 (19) ITR 132 [Supreme Court of India, 04-12-1950]

Interpretation of Orders – “Liability”, “actionable wrong other than breach of contract”, meanings of – Torts and actionable wrongs. Hiralal J. Kania (CJ), M. Patanjali Sastri, J. Saiyid Fazal Ali, J. B.K. Mukherjea, J. N. Chandrasekhara Aiyar, J. State of Tripura v. Province of East Bengal, AIR 1951 SC 23 : 1951 (19) ITR 132 [Supreme Court of India, 04-12-1950]

Land Revenue Sales Act, 1859 (Bengal) – S.6 – System of Collection of Revenue. H.J. Kania (CJI), M. Patanjali Sastri, J. & S.R. Das, J. Kali Ram Dokania v. S.K. Ulfat Hossain, AIR 1951 SC 6 [Supreme Court of India, 01-12-1950]

Sholapur Spinning and Weaving Company (Emergency Provisions) Act, 1950 – Act dismissing managing agents of a company, removing its directors, authorising Government to appoint new directors, and curtailing rights of shareholders in the matter of voting, etc. – Validity – Whether infringes fundamental rights – Right not to be deprived of property save by authority of law – Right to acquire, hold and dispose of property -Right to equal protection of law. Hiralal J. Kania (CJ) Saiyid Fazal Ali, J. M. Patanjali Sastri, J. B.K. Mukherjea, J. Sudhi Ranjan Das, J. Charanjit Lal Chowdhary v. Union of India, AIR 1951 SC 41 : 1950 SCR 869 [Supreme Court of India, 04-12-1950]

Limitation Act, 1908 – Ss. 14 (2), 18, Art. 182 – Execution of Decree – Application after 12 years from decree and 3 years from order on last application – Fraudulent concealment of property to prevent execution – Maintainability of application – Limitation – Fraud preventing execution against particular property – Whether saves limitation under Art. 182 – Applicability of S.18 – Decree directing payment of deficit court fee before execution – Whether conditional decree – Starting point of limitation – Time spent in proceedings to adjudge judgment debtor insolvent, whether should be excluded. Hiralal J. Kania, (CJ), N. Chandrasekhara Aiyar, J. Sudhi Ranjan Das, J. Yeshwant Deorao Deshmukh v. Walchand Ramchand Kothari, AIR 1951 SC 16 : 1950 SCR 852 [Supreme Court of India, 01-12-1950]

Specific Performance – Offer to purchase leasehold right – Stipulation that lesses should obtain consent of lesser – Lessor unreasonably refusing consent – Lessee, whether relieved of liability to assign – Suit for specific performance by purchaser – Maintainability – Lease deed – Covenant prohibiting assignment of lease without lessor’s consent, “such consent, however, not to be unreasonably withheld in case of respectable person” – Meaning and effect of covenant. Hiralal J. Kania (CJ), Sudhi Ranjan Das, M. Patanjali Sastri, J. Kamala Banjan Roy v. Baijnath Bajoria, AIR 1951 SC 1 : 1950 SCR 840 [Supreme Court of India, 01-12-1950]

Registration Act, 1908 – S.17(1)(b) & (d), 17 (2) – “Lease” – Compromise decree creating under lease between A and B on condition that A pays a sum of money to C – Whether compulsorily registerable – Agreement to lease not creating immediate interest land – Whether “lease”. Hiralal J. Kania (CJ), Sudhi Ranjan Das, M. Patanjali Sastri, J. Mangan Lal Deoshi v. Mohammad Moinul Huque, AIR 1951 SC 11 : 1950 SCR 833 [Supreme Court of India, 01-12-1950]

Will – Construction – General Principles – Presumption against intestacy. Gnanambal Ammal v. T. Raju Ayyar, AIR 1951 SC 103, 1950 SCR 949 [Supreme Court of India, C.A. No. 13 of 1950 21-12-1950]

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