Mumbai Court August 1884 Judgments
Abdul Cadur Haji Mahomed Vs. C.A. Turner Official Assignee and ors.
Court: Mumbai
Decided on: Aug-26-1884
Reported in: (1885)ILR9Bom158
Scott, J.1. The facts, on which this motion depends, are set forth in the plaint, and they are not contested by the defendant. The question for decision is one purely of law. The learned Advocate-General pressed me to grant the injunction asked, and leave the question to be settled at the hearing. Of course the Court at this stage avoids, as far as possible; the determination of any right, and abstains, as much as it can, from prejudging , any question in the suit. But the action of the Court cannot be invoked, unless some prima-facie case in support of the title asserted is shown. For this purpose I must examine the facts, which may be briefly stated as follows.2. One Usman Vydina died in 1861, leaving considerable property and a going and lucrative business. He left three sons, Mahomed, Abdul Vyed, and Ebrahim; two daughters; two brothers, Allana (who had a son Esmail) and Jaffir, and two widows. The deceased had made a will, and after certain testamentary dispositions, not necessary...
Tag this Judgment!Queen Empress Vs. Jethmal Jayraj
Court: Mumbai
Decided on: Aug-24-1884
Reported in: (1885)ILR9Bom27
West, J.1. The jurisdiction of the Magistrate in this case depended on sanction to the prosecution by the Collector. It was essential, therefore, that the record of the conviction should evidence such Sanction. It does not contain any written sanction, nor any note even of sanction having been given to the prosecution. The conviction, therefore, must be reversed, as the trial was held without jurisdiction. The fine to be restored....
Tag this Judgment!Nanjundepa and Gurulingapa Vs. Hemapa BIn Irapa and ors.
Court: Mumbai
Decided on: Aug-23-1884
Reported in: (1885)ILR9Bom10
West, J.1. In this case the plaintiffs' predecessor in title purchased the interest of Maribasapa in the property in dispute at a sale in execution of a decree on a simple debt. This was on the 18th January, 1877, but possession was not obtained; nor until the 31st July, 1878, was a certificate of sale obtained by the purchaser.2. In the meantime, Maribasapa was made defendant in two suits filed after the sale of January, 1877, on mortgages executed prior to that date and found by the District Judge to be genuine and valid. In execution of the decrees obtained on these mortgages, the property in dispute was sold to purchasers represented by defendants Nanjundepa and Nilowa. The purchasers promptly got possession; their sale-certificates were obtained on the 5th February, 1878, and the 1st November, 1878, one earlier and one later than the certificate of sale obtained by the plaintiffs' pre-decessor.3. When the plaintiffs sought possession, they were resisted by defendants, and failed i...
Tag this Judgment!Vasudbv B. Pandit Vs. Narayan V. Joshi
Court: Mumbai
Decided on: Aug-23-1884
Reported in: (1885)ILR9Bom15
Charles Sargent, C.J.1. We think the agreement in question is one within the contemplation of Section 44 of the Dekkhan Relief Act of 1679. A comparison of the Sections 41,43,44 and 46 of Chapter VI leads us to the conclusion that the expression 'finally disposing of the matter' in Sections 43 and 44 means no more than the expression 'amicable settlement' in Sections 41 and 46; and it would be impossible, we think, not to hold that an arrangement which provides for a plaintiff's claim to be paid the mortgage debt at once or to have the property sold, being settled by an agreement for the payment. of the debt in ten annual instalments with power to plaintiff in default of payment of any instalment to take possession and retain possession, until the debt has been satisfied out of the produce of the estate is not an 'amicable settlement' of that claim. As to the objection that the agreement provides for the payment of interest on any instalment remaining unpaid on the ground that the enti...
Tag this Judgment!In Re: Shaik Fakrudin
Court: Mumbai
Decided on: Aug-21-1884
Reported in: (1885)ILR9Bom40
West, J.1. This is an application for transfer from the First Class Magistrate's Court at Karmala in the Sholapur-Bijapur District to the Court of one of the Presidency Magistrates of a complaint lodged by the wife of the petitioner against him for maintenance under Section 488 of the Code of Criminal Procedure.2. From the affidavit filed by the petitioner it appears that he is a resident of Bombay, having lived here for upwards of ten years with his wife the opponent. He allowed her to go to her parents at Karmala in 1882 and she has not since returned to Bombay.3. A rule nisi was granted by this Court calling upon the Opponent (the wife) to show cause why the proceedings in the matter before the First Class Magistrate at Karmala should not be quashed as having been held without jurisdiction, or, if jurisdiction were found to exist, why the inquiry should not be transferred to the Presidency Magistrate's Court at Bombay. The, rule has been argued at great length by the pleaders of the...
Tag this Judgment!Nahalchand Harakchand Vs. Hemchand and anr.
Court: Mumbai
Decided on: Aug-20-1884
Reported in: (1885)ILR9Bom31
West, J.1. Referring to the oases cited and to Lallubhai v. Bapubhai I.L.R. 2 Bom. 388 we hold that the nephews of Fatechand, sons of Harakchand though separated, were his heirs in preference to the widow of another heir Lalu, though: the latter was undivided in interest from Fatechand. The members of the compact series' of heirs specifically enumerated take in the order in which they are enumerated-Yy. M., ch. iv, Section viii, 18-preferably to those lower in the list and to the widows of any relatives whether Bear or remote, though where the group of specified heirs has been exhausted, the right of the widow is recognized to take her husband's place in competition with the representative of a remoter line. We, therefore, reverse the decree of the District Court and remand the case for disposal on the other questions which arise in it. Costs of this appeal to be paid by respondents; the other costs to be dealt with in the final decision....
Tag this Judgment!Dhondo Sakharam Kulkarni Vs. Govind Babaji Kulkarni
Court: Mumbai
Decided on: Aug-19-1884
Reported in: (1885)ILR9Bom20
Charles Sargent, C.J.1. The principle laid down in the base referred to by the District Judge, Ganpatgir Guru Bholagir v. Ganpatgir I.L.R. 3 Bom. 230 is not applicable to a suit under Section 283, Act XIV of 1882. The ruling in Parvati v. Kisansing Printed Judgment for 1881 p. 121, which we understand has always been followed in this Court, shows that although the plaintiff may pray in such a suit to be awarded possession, the plaint is still to? be treated as falling under Article 17, Clause 1 of Schedule 2 of Act VII of 1870, and chargeable with only a 10-rupee stamp. We must, therefore, reverse the decree of the Court below and remand the case for a decision on the merits. Costs of this appeal and in the Court below to abide the result....
Tag this Judgment!Govindas Kasandas and anr. Vs. Dayabhai Savaichand
Court: Mumbai
Decided on: Aug-18-1884
Reported in: (1885)ILR9Bom22
Charles Sargent, C.J.1. The District Judge was wrong in directing that the value of the relief sought should not be fixed fey plaintiffs at less than Rs. 10,000, the alleged value in the plaint of the property left by the testator. By Section 7, clause of the Court Fees Act, VII of 1870, the plaintiff in a suit for accounts must state the amount at which he values the relief sought, but he is free to fix it as he thinks proper, subject to the provision of section of which precludes the execution of the decree in case it exceeds such value until the execution fee has been paid. We must, therefore, reverse the order of rejection of 23rd April, 1883, and direct that the plaintiffs do within a month amend their plaint by stating the amount at which they value the relief sought and stamp their plaint accordingly, and that in default of their doing so, their plaint do stand Rejected. Appellants to have their costs of this appeal unless they commit such default as above mentioned....
Tag this Judgment!Giriowa Vs. Bhimaji Raghunath
Court: Mumbai
Decided on: Aug-18-1884
Reported in: (1885)ILR9Bom58
West, J.1. In this case it appears that after the death of Balaji Kulkarni, husband of the defendant Giriowa, his brother Raghunath endeavoured to appropriate the whole of the vatan estate. Giriowa appealed to the Revenue authorities, and then Raghunath , yielded to an assertion of her right to a separate moiety of the estate. The terms of their agreement are embodied in the document (exhibit No. 55) which was produced at the trial by the plaintiff Bhimaji, son of Raghunath. By this agreement it is settled that on account of her share Giriowa is to enjoy certain parts of the property while Raghunath retains his. It is further said that she is to enjoy the part specified during her life, and not to trouble Raghunath by any further complaints. This document cannot be reasonably construed otherwise than as fully admitting Giriowa's ' separate right as owner on an equality for the time at least, with Raghunath himself; and her ownership implies a previous separation between her husband Bal...
Tag this Judgment!Augustus Fisher Vs. James Peares and Two ors.
Court: Mumbai
Decided on: Aug-14-1884
Reported in: (1885)ILR9Bom1
Scott, J.1. [Scott, J.-Even supposing the proof of malice to be necessary, would it not Be enough for our procedure to state facts from which malice might be inferred. Would it be necessary to aver malice. Here the plaintiff had paid the debt, and yet was arrested.]2. Malice could not necessarily be inferred from such facts. A ~ mistake might have occurred, and, if so, here is no action. Malice need not be averred in words, but facts must be stated from which there can only be one inference. Otherwise malice must be expressly alleged. The Court will not infer it from the mere fact of arrest-Tebbutt v. Holt 1 Cr. & Kirw. 280, Moore v. Gardner 16 M.& W. 595 Medina v. Grove 10 Q.B. 152 Churchill v. Stggers 3 Ell. & Bl. 937 Phillips v. Naylor 4 H. & N. 565 Brasyer v. Maclean L.R. 6 P.C. 405 Huffer v. Allen L.R. 2 Ex. 15. These cases show that the mere fact of arrest after payment is not enough. The payment was not made to the first defendant himself, and the plaint does not allege that he ...
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