Mumbai Court September 1887 Judgments
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Narayanrav Damodar Vs. Javhervahu
Court: Mumbai
Decided on: Sep-29-1887
Reported in: (1888)ILR12Bom431
West, J.1. In this case the first point is, whether at this stage of the case it is proper to allow the appellants to make a change in the plaint of so material a nature as that asked for by them. Such an amendment would entirely alter the points of contention between the parties. It is not the practice to allow such a change after a cause has been disposed of, and we are not inclined to permit it in the present instance.2. Those who have gone to issue on one aspect of the case cannot ask for a new decision on a different aspect of the case. The only circumstance in which the Courts have departed from this rule is in the case of a merely formal point of amendment. The appellants here are not persons who have for the first time been engaged in litigation. In suing in the form they chose, they, doubtless, intended to take the chance of getting a greater advantage than they would have obtained if they had sued merely as separated sons. They sought to liberate the property altogether from ...
Karim Mahomed Jamal and anr. Vs. Rajooma and Noorbai
Court: Mumbai
Decided on: Sep-23-1887
Reported in: (1888)ILR12Bom174
C. Sargent, C.J.1. The question before us arises on the notice of motion given by the defendants to the plaintiffs on the 28th April, (His Lordship read the notice above set forth.) The motion having come before Bayley, J., he has referred it to this Court for decision.2. The whole matter has been referred to us, and there is no doubt, therefore, that the plaintiff might have taken here any objection which he might have taken before. If, when the case first came on before Mr. Justice Bayley, it had been objected that the defendants, on the notice which they had given, could not ask for a rectification of the decree, and that objection had been repeated here, I should have been disposed to refuse this application on that ground.3. In this case, however, the objection, that the notice of motion did not state that an application would be made to rectify the decree, was not made until Mr. Macpherson had concluded his argument, and was then too late. The question, therefore, now is, whether...
In Re: the Petition of Radhi
Court: Mumbai
Decided on: Sep-22-1887
Reported in: (1888)ILR12Bom228
Charles Sargent, C.J.1. The application by Radhi to be released from prison was virtually an application for review of the order for her imprisonment, on the ground that it was contrary to law. Two objections were taken to this application by the judgment-creditor. First, that Radhi should have taken the objection when she was arrested and brought before the Judge, and that not having done so, it is now too late; but her mere omission to do so cannot, as it was contended by the opponent, be regarded as a waiver of her right of exemption from arrest; and, having regard to the nature of the right claimed, it was one which the Court could not properly decline to consider on review, however late the application might have been. Secondly, it was said that the decree was absolute in its terms, and contained no express limitation of her liability; and as she did not apply for a review, no other course was open to the Small Cause Court Judge in-executing it but to enforce it in the ordinary ma...
Yashvant Shenvi and ors. Vs. Vithoba Sheti, Deceased by His Minor Son
Court: Mumbai
Decided on: Sep-22-1887
Reported in: (1888)ILR12Bom231
Charles Sargent, C.J.1. We think that the Subordinate Judge was right in his construction of the mortgage-deed, (exhibit 29). There are no words in that instrument which expressly make the old debt of Rs. 100 a charge on the property. The mortgagor undertakes to pay it together with the Rs. 64 when he takes back the land, and also agrees to the mortgagee's continuing in the enjoyment of the land till he pays off both the debts; but these provisions are satisfied by construing them as intended to make the equity of redemption conditional on the payment of both the debts. This construction, moreover, receives corroboration from the allusion to the old debt as a distinct and separate transaction, which would have no significance if the intention was to make the Rs. 100 a charge equally with the Rs. 64. It is further to be observed that the entire income of the property had been previously appropriated in lieu of the interest on the debt of Rs. 64. But although the Rs. 100 was not, in our ...
Kasturchand Gujar Vs. Parsha Mahar
Court: Mumbai
Decided on: Sep-22-1887
Reported in: (1888)ILR12Bom230
Charles Sargent, C.J.1. The Courts of British India have no authority to send their decrees for execution to Courts not in British India....
Shridhar Narayan Vs. Krishnaji Vithoji
Court: Mumbai
Decided on: Sep-19-1887
Reported in: (1888)ILR12Bom272
Charles Sargent, C.J.1. The language of Sections 354, 355 and 356 is far from being as clear as might be wished; but we think that the Assistant Judge was wrong in holding that the mortgaged property could be sold by the receiver without either the consent of the plaintiff, (the mortgagee), or paying him off. By Section 354 the equity of redemption, which was the only interest the insolvent had in the mortgaged premises, vested in the receiver, and Section 356, which directs the receiver to convert the property into money, must be read with Section 354 and as referring to the property vested in the receiver by that section. It is true that Section 356 contemplates the payment of the debts secured by mortgage out of the proceeds of the conversion of the insolvent's property in priority to the general creditors; but this must be taken in connection with the preceding section, and must be understood as referring to those cases in which the mortgaged premises have actually been sold after ...
Mehta Jethalal Vs. Jamiatram Lalubhai
Court: Mumbai
Decided on: Sep-13-1887
Reported in: (1888)ILR12Bom225
Charles Sargent, C.J.1. The question in this case arises out of a dispute in the caste of Visnagra Brahmins, and is the result of a division of that casto,in 1841, into two sections, known as the big and little sections. During this division, vis., in the year 1868, certain lands, which are the property in dispute, were purchased by the small section in the names of the plaintiff and four other persons, of whom defendant Jamiatram was one, for and on behalf of the section. In 1873 the members of the small section, excepting the defendant Jamiatram, became reunited with the other members of the caste. After 1873 the property remained in the possession of Jamiatram, and the plaintiff now sues, for and on behalf of the caste, to recover possession of it. Both the lower Courts have decided, but we think wrongly, that the suit involved a caste question, and not cognizable by the Civil Courts.2. If the lands in dispute had been originally the property of the caste, the question would have be...
Faki Ismail Valad Faki Ali Shilotri Vs. Mahomed Ismail Valad Mahomed I ...
Court: Mumbai
Decided on: Sep-06-1887
Reported in: (1888)ILR12Bom595
Birdwood, J.1. The plaintiff seeks, as khot of the village of Ransai in the Panvel Taluka, to recover, with mesne profits, certain lands which the defendant, while lessee of the village, acquired from the Collector of Thana and the Superintendent of Revenue Survey. The plaintiff says that the acquisition was fraudulent and that the defendant should be declared to hold the lands as his trustee. He says further that he became aware of the fraud at the end of April 1871, when the village was restored to him by the defendant, without the said lands.2. The defendant, among other answers to the claim, says that it is time-barred, and that the property in suit was not acquired by him wrongfully or fraudulently; that he passed a kabulayat to the Collector for some of the lands in 1859; and that some were granted to him by the Survey Superintendent at the time of the survey settlement in 1861-62; and, further, that the land was the property of Government; and that by the express terms of the le...
Bhundal Panda Vs. Pandol Pos Patil
Court: Mumbai
Decided on: Sep-05-1887
Reported in: (1888)ILR12Bom221
Charles Sargent, C.J.1. The plaintiffs in this suit, who are some of the fishermen of the village of Naoghar, claim for the fishermen of that village the exclusive right of fishing in the Nagothna creek between high and low water, within certain limits mentioned in their plaint, and seek, under Section 9 of the Specific Relief Act, to recover possession of that right from the defendants, who, they allege, had dispossessed them within six months before the filing of the suit. The Subordinate Judge made an order that possession should be given to the plaintiffs. It has been contended that this was beyond his jurisdiction, the right of fishing not being immoveable property within the contemplation of the above section. The right claimed is the right of excluding the public from a particular part of the sea, and would constitute what is technically termed a 'common of fishery,' and, being a private right of fishery as distinguished from the right of the general public to fish in the sea an...
Venkatesh Govind Vs. Maruti
Court: Mumbai
Decided on: Sep-05-1887
Reported in: (1888)ILR12Bom214
Charles Sargent, C.J.1. In this case one Apaya mortgaged four shops to plaintiff's father on the 15th August 1864-the bond not being registered. Apaya's father subsequently obtained a decree declaring that two of the shops were not liable to the mortgage, and in 1869 plaintiffs father sued on the mortgage-bond, and also prayed that certain land not included in the mortgage might be held liable for the debt in lieu of the two shops. A decree was passed on the 29th November, 1869, by which Rs. 1,291 and interest from date of plaint were ordered to be paid 'on the liability of the land in the plaint mentioned.' On the 18th August, 1876, Apaya sold a portion of this land to defendant, who obtained possession from Apaya without notice of the plaintiff's decrees. This sale-deed was registered.2. The Acting Judge held, on the authority of Kanu Khandu v. Krishna Bhulaji Shet 5 Bom. H.C. R 147, A.C.J that the defendant's deed of sale was entitled to preference. In that case the ordinary decree ...
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