Mumbai Court February 1883 Judgments
Vyankatraya BIn Ramkrishnapa Vs. Shivrambhat BIn Nagabhat
Court: Mumbai
Decided on: Feb-28-1883
Reported in: (1883)ILR7Bom256
Charles Sargent, Kt., C.J.1. The plaintiff in this case sued to have his right established to attach a piece of land in execution of his decree against one Dodapa Yana Timaya, who held the land under a mulgeni lease from the defendant. The defendant objected to the attachment on the strength of a particular provision in the lease in question, which after forbidding alienation by the tenant by mortgage, sale, or lease, continues thus: 'You are not to let it be sold, or attached and sold in satisfaction of judgment debts if you do let it, I shall take away the land, and give it to others for cultivation.' The Judge held that this clause was void as being in restraint of alienation, which he held to be a necessary incident to a mulgeni estate, but that in any case 'the creditor was not bound by it, nor the Court restrained from issuing process of attachment at his instance, and, lastly that an assignment by operation of law, and not by the voluntary and immediate act of the parties, was n...
Tag this Judgment!Krishna Ji Raghunath Kothavle Deceased, by His Son and Heir Ramchandra ...
Court: Mumbai
Decided on: Feb-28-1883
Reported in: (1883)ILR7Bom293
Charles Sargent, Kt., C.J.1. The appellant in this case had filed an award against the respondent on 19th December 1873, and by his darkhast of 1874 applied for and obtained the attachment of certain property of his judgment-debtor, which was, however, subsequently removed on the 16th July, 1875, on the application of one Bhaskarav, a minor, represented by his mother and guardian, Lakshimibai. Thereupon the appellant preferred a suit in. 1875 to have it declared that the property was liable to attachment, which suit was rejected on the 8th July, 1880. On the 30th November, 1880, the appellant presented a darkhast for the arrest of the respondent. The Subordinate Judge rejected the darkhast as beyond time, being of opinion that the decision of this Court in Kalyanbhai Dipchand v. Ghanashamlal Jadunathji I.L.R. 5 Bom. 29 was not applicable. In that case, the judgment-creditor had attached the property of his debtor, but the sale had been subsequently restrained by an injunction obtained ...
Tag this Judgment!Kacharbhoj Vaija and ors. Vs. Bai Rathore Widow of Kachar Raja Jetha a ...
Court: Mumbai
Decided on: Feb-21-1883
Reported in: (1883)ILR7Bom289
Charles Sargent, Kt., C.J.1. We think the Subordinate Judge was right in holding that the claim to have the several alienations by the widow Rathore mentioned in the plaint declared void arises out of several distinct causes of action against the several defendants who were the alienees of the particular properties, the subject of those alienations, which causes of action could not, therefore, be properly united in the same suit, having regard to the provisions of Section 45 of the Code of Civil Procedure. The Code does not state what course the Judge ought to pursue where there has been a misjoinder of causes of action. In similar cases under Sections 8 and 9 of the Code of 1859, which are virtually the same as Section 45 of the present Code in a less expanded form, it was said by Peacock, C.J., in Rajah Ram Tewary v. Luchman Pershad 8W.R.15 that Judges ought to reject the plaint. If this be not done, and the objection be taken by the defendants in their written statement, the Judge o...
Tag this Judgment!Jamnabai Widow of Nahalchand Vs. Raychand Nahahalchand
Court: Mumbai
Decided on: Feb-20-1883
Reported in: (1883)ILR7Bom225
Melvill, J.1. The evidence, in our opinion, is sufficient to establish the factum of the adoption. The witnesses for the plaintiff state that the defendant went to the plaintiff's natural father Giga, and asked him to give his eldest son in adoption--the eldest son being preferred by the defendant, because he was of an age to assist her in her business; that Giga consented; that the defendant afterwards sent for the boy; and that a ceremony of adoption was gone through in defendant's house. Defendant afterwards spent a large sum of money on plaintiff's marriage, and her own explanation of this is absurd. The only reasonable explanation is that she recognized the plaintiff as her son. Three months after the adoption we find plaintiff deposing in suits brought by the defendant that he was the defendant's adopted son. The evidence of the defendant and her witnesses on the other side, to the effect that no adoption took place, is utterly unreliable.2. It is contended that even though an ad...
Tag this Judgment!Hansji Chhiba Vs. Valabh Chhiba
Court: Mumbai
Decided on: Feb-19-1883
Reported in: (1883)ILR7Bom297
Charles Sargent, Kt., C.J.1. The Assistant Judge was in error in applying to this action the provisions of Article 148, Schedule II of Act IX of 1871. The suit is a suit by a Hindu, excluded from joint family property, to enforce a right to share therein, and for such suits Article 127 provides a period of twelve years, commencing from the date when the plaintiff claims and is refused his share. It is not even alleged by the defendant in the present case that the plaintiff ever claimed and was refused his share. The suit is consequently not barred under the provisions of Act IX of 1871.2. It was, however, contended before this Court that the suit was barred under the provisions of Act XIV of 1859 before Act IX of 1871 came into operation, and that the right of action, having been once lost, could not be revived. This was not the case made in the Court below, and it is not perfectly clear on the finding of the Assistant Judge that the plaintiff had been out of possession for twelve year...
Tag this Judgment!Kashibai Kom Bhagvant and anr. Vs. Tatla BIn Lakshman
Court: Mumbai
Decided on: Feb-12-1883
Reported in: (1883)ILR7Bom221
Charles Sargent, Kt., C.J.1. The decision in this case turns upon the question of the validity of the adoption of an eldest son. This as well as the cognate question of the validity of the adoption of an only son, may probably be considered as settled in the High Courts of the other Presidencies. In Madras the validity of the adoption of an eldest son was established in the case of Chinna Gaundan v. Kumara Gaundan Mad. H.C. R. 54 the decision being based principally on the opinion expressed by Sir T. Strange 'that with regard to both the prohibitions respecting an eldest and an only Son, where they most strictly apply, they are directory only, and that an adoption of either, however blamable in the giver, would nevertheless, to every legal purpose, be good according to the maxim factum valet quod fieri non debuit.' In Calcutta the adoption of an eldest son was held valid by Mr. Justice Markby and Mr. Justice Mitter in Janokee Debea v. Gopaul Acharjea I.L.R. 2 Cal 365 and that of an onl...
Tag this Judgment!In Re: Abdul Ali Ishmailji and His Wife Husenbi
Court: Mumbai
Decided on: Feb-07-1883
Reported in: (1883)ILR7Bom180
1. The 'talak biddat' or irregular divorce, which is effected by three repudiations at the same time, appears from the authorities to be sinful, but valid; and it was recognized as valid by this Court In re Kasam Pirbhai and his wife Hirabai 8 Bom. H.C. R 95 Cr. The Magistrate should, therefore, no longer enforce his order for payment of maintenance made on the 19th May 1882....
Tag this Judgment!Kalidas Kevaldas Vs. Nathu Bhagvan
Court: Mumbai
Decided on: Feb-01-1883
Reported in: (1883)ILR7Bom217
Charles Sargent, Kt., C.J.1. The plaintiff sues upon a debt contracted with his deceased father when carrying on trade under the name of Kevaldas Hansi. The defendant pleaded that the shop at present belongs to the plaintiff and his three brothers--Mansuk, Amratlal and Harilal--as an undivided family, and that, therefore, plaintiff could not sue alone. Both the Courts below found that the fact was as stated by the defendants, and held that the plaintiff could not sue alone, and rejected the claim with costs. The three brothers, it appears, were examined at the hearing, and said that they had no objection to the plaintiff suing alone, as their father gave this debt to him before his death in consideration of his managing the business. The District Judge, however, disbelieved this story, holding that it had been invented for the purpose of avoiding the bar of limitation, and rejected the claim, holding on the authority of Ramsebuk v. Ramlal Kundoo I.L.R. 6 Cal 815 that the plaintiff coul...
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