Mumbai Court August 1883 Judgments
Ghanashamdas Goorsamull Vs. Joharimull Kedarinath
Court: Mumbai
Decided on: Aug-31-1883
Reported in: (1883)ILR7Bom431
Bayley, Acting, C.J.1. Joharimull Kedarinath, a prisoner on the civil side of H.M.'s Common Jail in Bombay, by a petition, dated the 1st August instant, stated that he had been arrested in Suit No. 37 of 1883, brought on the ordinary original civil jurisdiction side of the High Court, under a warrant of arrest before judgment on the 3rd February, 1883, and had been since then undergoing imprisonment on the civil side of the jail; and be submitted that, under the provisions of the Civil Procedure Code, he would become entitled to his release on the 2nd August instant. He stated that he had, however, been served with a warrant of arrest after judgment in the above mentioned suit on the 28th July last (which, we find was marked for the levy of Rs. 2,831-2-9), had been produced before the sitting Judge in chambers, and had again been committed to jail from the date of the decree, which was passed on the 6th March, 1883. He then submitted that, under the provisions of the Civil Procedure Co...
Tag this Judgment!Fakirchand Motichand Vs. Motichand Hurruckchand
Court: Mumbai
Decided on: Aug-30-1883
Reported in: (1883)ILR7Bom438
Latham, J.1. The plaintiff in this case alleges that he and his father, Motichand Nathoo, were jointly entitled to four houses in Champagully as their ancestral property; that his father carried on separate business as a shroff, and stopped payment on the 18th, and filed his schedule on the 17th of January, 1879 having in the interval made a fictitious equitable mortgage of the said four houses to the defendant; that his father died in December, 1881; and that on the 22nd of March, 1882, Mr. Lynch, then acting as Official Assignee, was induced by the misrepresentation of the defendant to sell and convey to him the said four houses for the sum of Rs. 24,000, being an utterly inadequate consideration, from which sum the debt claimed by the defendant from the insolvent's estate was deducted. He prays that the said mortgage and sale may be declared of no effect as against him; and that he may be declared entitled either to the whole, or a part, of the said four houses. The defendant denies...
Tag this Judgment!Mathuradas Nandvalabh and anr. Vs. Bai Amthi
Court: Mumbai
Decided on: Aug-29-1883
Reported in: (1883)ILR7Bom522
West, J.1. The enjoyment of apertures admitting light and air is an enjoyment 'as of right' when it is open and manifest, not furtive or invisible, and when it is not had in such wise as to involve the admission of an obstructive right in the owner of the alleged servient tenement. The phrase does not mean a right acquired through grant from the owner of the servient tenement, though the presumption of a grant from an enjoyment for twenty years was the basis of the English law on the subject. It may seem hard that the owner of a plot of land should be divested of one of the ordinary incidents of ownership by his neighbour's building a house on his land more than twenty years before the former wants to build, and that would be so if exclusive ownership were an ultimate fact; but the truth is, that both owners occupy under the sanction of the State, because such occupation is found conducive to the general welfare. The same principle warrants the use of land for purposes beneficial to co...
Tag this Judgment!James Scott Vs. James Finlay and ors.
Court: Mumbai
Decided on: Aug-25-1883
Reported in: (1883)ILR7Bom386
Bayley, Acting, C.J.1. The question referred to us for our opinion by the Chief Judge of the Small Cause Court is 'whether, on a true construction of the terms of the bills of lading held by the plaintiff, the delivery, under the circumstances set forth in the case, was a complete delivery to the plaintiff in accordance with the terms of the bills of lading.' The bills of lading were two, but are identical in form. The goods 'shipped in good order and condition are to be delivered, subject to the exceptions and conditions herein provided, in like good order and condition from the ship's tackles (where the ship's responsibility shall cease).' Then follow the exceptions and conditions referred to, only one of which is material to the present question, and that runs as follows: 'The ship-owner shall have the option of discharging in dock, and of making delivery of the goods under the bill of lading, either over the ship's side, or from lighters, or a store-ship, or custom house, or wareho...
Tag this Judgment!Jagjivan Javherdas Seth Vs. Magdum Ali Deceased by His Heirs Shekh Ada ...
Court: Mumbai
Decided on: Aug-16-1883
Reported in: (1883)ILR7Bom487
Pinhey, J.1. In execution of a decree against one Shekh Ali, Shekh Ali's equity of redemption in a certain property was sold by auction, and purchased by plaintiff. In this suit plaintiff sues, to redeem the property from the legal representatives of the mortgagee, Makdum Ali. He estimated his claim at Rs. 2,500; but the defendants, in a statement of account given in their written statement, showed that only Rs. 2,440 was due on the mortgage, and the lower Court found that even this sum was not due. The appeal from the decision of the lower Court--that is, the. First Class Subordinate Court at Nasik,--there fore, lay to the District Court, and not to the High Court--Cotterell v. Stratton L.R. 17 Eq. 543. and Kondaji Bagaji v. Anau See anta p. 4-48.2. This appeal must, there fore, be dismissed with costs.3. It may be remarked that if we had held other wise, and had held that the value of the property in suit was over Rs. 5,000, we should have had to annul the whole proceedings in the ca...
Tag this Judgment!Annaji Waghuji Vs. Bapuchand Jethiram
Court: Mumbai
Decided on: Aug-16-1883
Reported in: (1883)ILR7Bom520
West, J.1. The provision in Section 3, Clause (z) of Act XVII of 1879 is not limited to an agriculturist who is himself the original mortgagor, Section 12 again contemplates suits and accounts, according to the method of the Act, between persons who are representatives only of those who were parties to the original transactions. It may be, as Mr. Ghanasham contends, that certain inconveniences will arise from the construction of the enactments we are considering according to their literal sense, but that is not a reason for our amending the work of the Legislature according to our notions of fitness. 'The intention of the Legislature is to be ascertained from the grammatical sense as applied to the object in view'-- see Eastern Counties Railway Companies v. Marriage per Blackburn J. 9H.L.. 36 'and' considerations of policy are to be excluded where the words, are clear', ( per Lord Coleridge, C.J., in Ditcham v. Worran L.R. 5 0. D. 419. Here the words are perfectly clear; and as the pla...
Tag this Judgment!Hemchand Kuber Vs. Vohora Raji Haji
Court: Mumbai
Decided on: Aug-16-1883
Reported in: (1883)ILR7Bom515
West, J.1. The acknowledgment in this case would have satisfied the requirements of Section 19 of Act XV of 1877 had it been written by Vohora Raji Haji himself. It contains his name as that of the person acknowledging the debt. As Vohora could not write, ho got the acknowledgment, including his name, written by a third party. He thus made that third party his agent, and the Subordinate Judge being satisfied as to the facts, Vohora is bound by the acknowledgment.2. We answer the reference accordingly....
Tag this Judgment!Balkrishna Pandurang Vs. Govind Shivaji
Court: Mumbai
Decided on: Aug-16-1883
Reported in: (1883)ILR7Bom518
West, J.1. 'The termination of a suit is when judgment is given in the Court in which the action is commenced.'--per Blackburn, J., in Harris v. Quine L.R. 4 Q.B. 658. The time for limitation is to be counted, under Article 84, sch. II of Act XV of 1877, from the termination of the suit. The pleader in this case instituted his suit more than three years after the termination thus defined of the one in which he had been retained by the defendant. His suit, therefore, was barred by limitation....
Tag this Judgment!Chogalal Vs. Major Trueman
Court: Mumbai
Decided on: Aug-13-1883
Reported in: (1883)ILR7Bom481
West, J.1. A copy of a decree of the Court of the First Class Subordinate Judge at Nasirabad having been sent for execution to the District Court at Belgaum, the District Judge has refused to execute it, on the ground that the Nasirabad Court had not jurisdiction to make the decree. Poona, the District Judge has found, was the seat of the obligation merging the earlier one, the locality of which was Nasirabad. There might be some room for this contention were the question an open one, but we do not think it is, Nasirabad is in British territory. The Code of Civil Procedure was introduced into Ajmir by a notification in the Calcutta, Government Gazette of 1861, page 502; and Nasirabad is a part of the province of Ajmir. The intention of the Civil Procedure Code, as shown by Sections 239 and 242, is Manifestly that a Court to which a decree is sent for execution by another under the same Government, and the same law of procedure, shall not take on itself the trial of whether the Court Wh...
Tag this Judgment!Mohansing Chawan Vs. Henry Conder General Traffic Manager G.i.P. Railw ...
Court: Mumbai
Decided on: Aug-07-1883
Reported in: (1883)ILR7Bom478
West, J.1. The railway company in this case were bound to deliver the particular bags which, they received from the plaintiff's firm for carriage. They did not deliver them, nor did they, so far as the evidence goes, announce their inability to deliver them on account of having lost them either in transit or by misdelivery to some one not entitled. On the other hand, they took from the plaintiff's agent receipts for the full number of bags as arrived at their destination, and gave gate passes for delivery. The natural presumption under such circumstances is that all the goods arrived, and that the railway company was in a position to deliver them. We are asked to infer from the mere non-delivery that they could not be delivered, because they were lost; but that is an affirmative fact of which the company ought to have given evidence. Prima facie, the responsibility rested on the company, and the non-delivery of the goods might arise from other causes than loss. Had the company announce...
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