Mumbai Court July 1883 Judgments
Anusuyabai Widow of Balaji Vs. Sakharam Pandurang
Court: Mumbai
Decided on: Jul-27-1883
Reported in: (1883)ILR7Bom464
West, J.1. The decree of the Court below being in favour of the appellant, and she seeking no alteration of it, the present appeal must be dismissed. Mr. Ghanasham, for the appellant urges that, though the decision is in his client's favour, one of the grounds on which it is based has been decided unfavourably to the appellant's title and may thus, as res judicata, greatly prejudice her in a future suit between her and the respondent. This fear, though there are some decisions and dicta which support it, does not appear to be well grounded. The judgment is not, and cannot really be based on a ground unfavourable to the successful party, though an opinion unfavourable to him may be expressed on some incidental point. According to the English law, 'the attribute of being conclusive evidence of the facts.stated therein, and properly tending thereto, seems to have been thought to belong to every adjudication emanating from a competent Court'--Crepps v. Durden 1 S L.C. (1876) 716; nee too E...
Tag this Judgment!Gurupadapa Basapa Vs. Virbhadrapa Irsangapa
Court: Mumbai
Decided on: Jul-25-1883
Reported in: (1883)ILR7Bom459
West, J.1. The first question is that of what Act governs this case, and we think it is Act XV of 1877. Acts of limitation, like other laws relating to procedure, apply immediately to all steps taken after they have come into force, except when some provision is made to the contrary. The reason of this is that every one seeking the aid of a Court seeks it on the terms from time to time imposed by the Legislature. He has not the privilege of making any application he likes in any way, and at any time he likes. Other interests than his are at stake, and the Courts are not to exercise their coercive power at his request over another person, except under such regulations as shall make their action compatible with the general welfare. They, accordingly, are commanded to act only in defined ways on applications which satisfy specified conditions. It has been contended that the judgment of the Privy Council in Mangal Prasad's case L.R., 8 IndAp, 123 involves the principle that when a suit has...
Tag this Judgment!Shridharnarayan Vs. Atmaram Govind
Court: Mumbai
Decided on: Jul-23-1883
Reported in: (1883)ILR7Bom455
West, J.1. The property of the insolvent in this case vested, no doubt, in the receiver under Section 354 of the Code of Civil Procedure. All the right title and interest of the insolvent might thereon have been sold in every part of his estate Each creditor; entered in the schedule, framed by the Court under Section 352, would then have stood in the position of a judgment-creditor against the insolvent for the amount entered opposite Such creditor's name in the schedule. A judgment-creditor however, has not a right to deprive a mortgagee, or other holder, of a charge on the judgment-debtor's property, of his rights under' his security; and the receiver, acting for the judgment-creditors as a body, has no more right than they acting collectively, Would have to annul a mortgage. He must pay off a mortgage-debt in every instance as the equitable condition, of his making the property mortgaged as distinguished, from the equity of redemption available for the general body of the creditors....
Tag this Judgment!Sitaram Krishna Vs. Daji Devaji
Court: Mumbai
Decided on: Jul-19-1883
Reported in: (1883)ILR7Bom418
West, J.1. In this case a document not requiring attestation by law was attested. After it had been delivered to the obligee, he seems to have got another attesting signature added to it by a man who had not, in fact, witnessed the execution of it by the obligor. The alteration was, at any rate, made while the obligee had the bond, and he was primarily liable for its preservation untampered with. With reference to Aldous v. Cornwell L.R. 3 Q.R. 578 however, and cases of that class the question arises, whether the addition was immaterial, and being immaterial had no effect in vitiating the security. Any change in a document varying the liability under it in any way is a material alteration:see Gogun Chunder Ghose v. Dhuronidhur Mundal I.L.R.7 Cal. 616 and Master v. Millar Sm. L. Cas I 871 (1876) and Cases referred to in the commentary in Smith's Leading Cases but we think an alteration in a document stating a falsehood, either expressly or by implication, by way of increasing the appare...
Tag this Judgment!Bala Kadar Vs. Gulam Mohidin
Court: Mumbai
Decided on: Jul-19-1883
Reported in: (1883)ILR7Bom424
West, J.1. It is imperative on a Court, before making an order to set aside a sale under Section 313, to see that notice has been given to the judgment-debtor or his representative. Mr. Wagle contends that the representative not being specified, notice to the representative is needless after the death of the judgment-debtor. But though 'judgment-debtor' is not so defined as to include a representative, yet the reason of the thing here requires that a representative should have the same opportunity of guarding his interests as the judgment-debtor himself,. and we have no doubt that this was the intention.2. Mr. Shivshankar urges that a representative cannot be called forward now when more than sixty days have elapsed from the sale; but Section 313 does not prescribe that the notice is to be served before the application, and Schedule II, Article 172 of, Act XV of 1877 only requires that the application shall be made, not that the notice shall be served, within sixty days from the sale.3...
Tag this Judgment!Bai Kushal and anr. Vs. Lakhma Mana
Court: Mumbai
Decided on: Jul-18-1883
Reported in: (1883)ILR7Bom452
West, J.1. It appears in this case that Ruda, the separate owner of certain lands, having become old and somewhat incapacitated for ordinary affairs, called in his daughter Kushal, who for some years carried on the cultivation of the fields composing the paternal estate. It is admitted she had physical detention of the lands, though on her father's account. In this state of things Ruda, the father, executed, a deed of gift, by which he bestowed all his land on Kushal and her four sisters. The property being his own absolutely, he had a perfect right to do this, but it is said that he did not complete his gift by delivery of possession. As Kushal, however, already had the physical detention of the lands, it was not possible to do more than convert this into possession and Ruda, in his deed, says: 'I have given you possession.' This was, on its face, an act divesting himself of the possession, and transferring it to Kushal. He could not retain possession against his will, and here was a ...
Tag this Judgment!In Re: the Indian Trustees and Mortgagees Act Xxviii of 1866; in Re: G ...
Court: Mumbai
Decided on: Jul-14-1883
Reported in: (1883)ILR7Bom381
Latham, J.1. The point is one of considerable importance', and I will take time to consider it2. I have considered the petition; and, looking to the nature of the point at issue, I think that it would not be right or proper for me, on a proceeding of this character, to give any opinion on it. I think it is no part of the duty of a Judge, under Section 43 of the Trustees and Mortgagees' Act, to give any opinion on a point on the decision of which may depend questions of right or title; more especially as, if the opinion were given, there is nothing in that section, or elsewhere in the Act, making it obligatory on, the Administrator General to act in accordance with it, or on the administrator of the domicile to accept it. The questions arising in the administration contemplated by Section 43 are not questions of the character of the one on which I am asked to express my opinion here. That is clear from the English authorities on the almost identical provisions contained in Section 30 of...
Tag this Judgment!Pursuottam Talvar Vs. Mudkangavda Shidangavda
Court: Mumbai
Decided on: Jul-13-1883
Reported in: (1883)ILR7Bom420
West, J.1. The lands in this case, as the District Judge has found, 'pertain to a talvar or shetsanadi vatan, and it is admit ted on both sides that the last owner of them was one Lenkya' from whom Mudkangavda took a lease in 1866. Now, according to Regulation XVI of 1827, Sections 19 and 20, as construed by Act XI of 1843, Section 15, the shetsanadis, who from time to time held the vatan in question in succession, were hereditary district or village officers. The land being held, and entered in the Government account, at a fraction of the full assessment was, as to the residue of the interest in it, assigned as remuneration for the duties to be performed by the functionary. Lenkya became the sole occupant of the office, and from that moment the emoluments annexed to it became inalienable under the provision of Section 20 of the regulation. By his lease, therefore, which is a partial alienation, Mudkangavda acquired no title at all. It would be directly opposed to the regulation.2. Whe...
Tag this Judgment!Kondaji Bagaji and ors. Vs. Anau Widow of Ranuji and anr.
Court: Mumbai
Decided on: Jul-12-1883
Reported in: (1883)ILR7Bom448
West, J.1. The original mortgage in this case was made in A.D. 1784. By the document No. 39, which the Subordinate Judge at first pronounced a forgery, but has now found genuine, the mortgage was recognized as existing in 1824 Again, in 1857, the document No. 18 refers to the mortgage as existing, and this document, too, overlooked in the first investigation, or not referred to in the judgment, the Subordinate Judge has now held proved. Thus, the mortgage, though it would, according to its own literal terms, have become a sale in 1794, has been kept alive by the subsequent acknowledgments, so as to prevent any bar by limitation of the present suit for redemption.2. The sum originally secured by the mortgage was Rs. 166. By the document No. 39, Bagaji, father of Kondaji, a defendant in this case, not only acknowledges the existence of a mortgage, but also a reduction of the amount due on it from Rs. 166 to Rs. 24. The plaintiffs, Ranuji's widows, brought this suit to redeem the mortgage...
Tag this Judgment!Mudvirapa Kulkarni Vs. Fakir Apa Kenardi and anr.
Court: Mumbai
Decided on: Jul-11-1883
Reported in: (1883)ILR7Bom427
West, J.1. The action of the defendant, on which the present suit is grounded, began and ended with his complaint to the Magistrate. The subsequent proceedings were those of the Magistrate himself. The defendant could not escape all responsibility for them as a basis on which damages were to be estimated, since, even in a case originating in negligence, 'the person guilty of it is equally liable for its consequences, whether he could have foreseen them or not' Smith v. L. & S.W. Ry. Co. L.R. 6 C.P. 21 much more than for the consequences, at least the natural consequences, of a wilful wrong. But these would be taken into computation by way of better enabling the Court to estimate the proper compensation for an act, which in itself could not be changed as to time by the longer or shorter series of results traceable to it. In the case of a prosecution the conduct of the prosecutor is looked on as a continuous act prolonged until the close of the case, and limitation is to be computed from...
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