Mumbai Court February 1888 Judgments
Shri Vishwambhar Pandit Alias Nana Maharaj Vs. Vasudev Pandit Alias Ba ...
Court: Mumbai
Decided on: Feb-29-1888
Reported in: (1889)ILR13Bom37
Birdwood, J.1. We are of opinion that the District Judge has wrongly held in this case that the words of Section 9 of Regulation Till of, 1827 are not directory or mandatory, but permissive. The use of the words 'may appoint' in this section does not imply that the District Court has any discretion in a proper case to appoint or not to appoint an administrator. The principles to be applied to the construction of the section is that laid down by the Curt of Common Pleas in MacDougall v. Paterson 11 C.B. 755 773 where it was said that 'when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized, to exercise the authority when the case arises, and its exercise is duly applied for by a party interested, and having the right to make the application; and that the exercise of such power depends, not upon the discretion of the Court or Judge, but upon the proof of the particular case out of which such power arises.'2. If any discretion is...
Tag this Judgment!Shivram Chintaman Vs. Jivu and anr.
Court: Mumbai
Decided on: Feb-25-1888
Reported in: (1889)ILR13Bom34
Birdwood, J.1. We are of opinion that the Assistant Judge has wrongly held that the present suit is not maintainable. The defendant No. 1 obtained a decree on a mortgage against one Hari Trimbak on the 31st May, 1882, and in execution of her decree caused certain property to be sold which the plaintiff claims as his own, under a sale to himself by the sons of Hari Trimbak made on the 31st July, 1882. The Assistant Judge has held (1) that under Section 244 of the Code of Civil Procedure the plaintiff is not entitled to bring a suit, and (2) that his suit is premature, as he should have waited till he was dispossessed by the auction-purchaser, the defendant No. 2.2. Section 244, however, does not bar the suit. It could have no application except as regards the property affected by the decree, and it is evident from the decision of the Assistant Judge that a part, at any rate, of the property now in suit was not included in the decree. Moreover, the plaintiff does not claim title from the...
Tag this Judgment!In Re: Jaikissondas Purshotamdas
Court: Mumbai
Decided on: Feb-21-1888
Reported in: (1888)ILR12Bom408
Bayley, J.1. I think we must reject this application. No doubt Section 38 of the Act does not say, in express words, that an application for re-hearing under that section must be in writing, but reading that section with Section 71 I think we must hold that the intention was that such an application should be in writing. If, however, there was any doubt about the matter, I think the doubt has been cleared up by the rule (No. 208) framed by the Judges of this Court, which provides that the application shall be by petition. We are now asked to say that this rule is ultra vires. We are not prepared to come to that conclusion.2. Then, what are the circumstances under which this application is made? We find that although the application was nominally made on the 16th December, the petition was not signed or declared until the 17th December; that the affidavit in support of it was not filed until two or three days subsequently; and that the fees were not paid until the 20th December. Even as...
Tag this Judgment!Fatmabai Vs. Aishabai
Court: Mumbai
Decided on: Feb-21-1888
Reported in: (1888)ILR12Bom454
Scott, J.1. In this suit Fatmabai, as widow of one Haji Adam Haji Ismail, sued Aishabai, also widow of Haji Adam, and claimed a share of the sum which Aishabai had received as such widow, on the ground that she (Aishabai) has forfeited her share by remarriage. Aishabai has replied, amongst other things, that Fatmabai in a previous suit against her put forward a claim, as widow, to money of the late husband in Aishabai's hands, and that the Court in that previous case decided that Fatmabai was not lawfully married to Haji Adam. Aishabai has further replied in the present suit that in the previous suit a sum of money had been awarded to Fatmabai in final settlement of all claims she might have against Aishabai. Aishabai, therefore, now pleads that the question in dispute in the present suit was finally adjudicated in a previous suit between the same parties, and cannot, therefore, be entertained by the Court a second time. She relies, of course, upon Section 13 of the Civil Procedure Cod...
Tag this Judgment!Keval Vanmali Vs. Fakira Jivan Deceased by His Sister Bai Lakai and or ...
Court: Mumbai
Decided on: Feb-14-1888
Reported in: (1889)ILR13Bom42
Birdwood, J.1. The plaintiff in this case is the assignee of a mortgage-deed executed by the defendant to one Fakira. The District Judge finds that the transaction was a genuine one, 'so far as that a real transfer of the deed for a valuable consideration took place.' That being so, we do not think that he was right in rejecting the claim, on the ground that such a transfer 'was an act of speculation in litigation,' which ' would, if sanctioned encourage professional litigants to speculate in doubtful claims.' It cannot be held that such a transaction is void under Section 23 of the Contract Act, as being opposed to public policy, inasmuch as it has long been established law in India that a chose-in-action is assignable. See Kadarbncha Sahib v. Rangaswami Nayak 1 Mad. H.C. R 150 ; Kanhaiya Lal v. Domingo L.R. 1 All. 732 ; Gokuldas Jagmohandas v. Lakhmidas Khimji I.L.R. 3 Bom. 402 ; Abdool Hakim v. Doorga Proshad Banerjee I.L.R. 5 Cal. 4. The case of Chedambara Chetty v. Renga Krishna M...
Tag this Judgment!Manishankar Pranjivan Vs. Bai Muli and anr.
Court: Mumbai
Decided on: Feb-14-1888
Reported in: (1888)ILR12Bom686
Birdwood, J. 1. In this case the plaintiff sued, as the assignee of a deed of mortgage, to recover the debt from the defendants, the mortgagors, and the mortgaged property. The assignor was a widow, acting as the natural guardian of her minor son.2. The District Judge has held the assignment invalid, for three reasons: (1) because the assignment had not been sanctioned by the District Court under Section 18 of the Minors' Act XX of 18G4' Section 18.-Every person to whom a certificate shall have been granted under the provisions of this Act may exercise the same powers in the management of the estate as might have been exercised by the proprietor if not a minor, and may collect and pay all just claims, debts, and liabilities due to or by the estate of the minor. But no Much person shall have power to sell, alienate, mortgage, or otherwise cucumber any immoveable property, or to grant a lease thereof for any period exceeding five years without the sanction of the Civil Court previously o...
Tag this Judgment!Ananta Balacharya Vs. Damodhar Makund
Court: Mumbai
Decided on: Feb-13-1888
Reported in: (1889)ILR13Bom25
Birdwood, J.1. It is not easy to understand on what principle the lower Courts have dealt with this case. As brought by the plaintiffs, it was a suit founded on an agreement of partition (Exhibit 3) to obtain a specific portion of property thereby grafted to them, and which, they alleged, they had enjoyed up to 1873. The Subordinate Judge, for some reason which does mot appear; either in his judgment in the proceedings, treated the suit as one for a general partition; and he ordered the property at Mahim, Savre, Varkhunti, Chintuchapada, Devkhop, and Vadhio to he partitioned and the plaintiffs to take possession of a moiety, and this notwithstanding the allegations of the defendants and his own finding that both parties held exclusive possession and were owners of separate parts of the property. The Assistant Judge, on appeal, went still further; for he ordered that the immoveable property of the family, situated in Bombay, be also brought into the suit and divided equally. Thus the fi...
Tag this Judgment!Nanabhai, and Four ors. Vs. Shriman Goswami Girdhariji
Court: Mumbai
Decided on: Feb-13-1888
Reported in: (1888)ILR12Bom331
Nanabhai Haridas, J.1. We are of opinion that this appeal should be dismissed with costs. It is established, and indeed was never denied, that the plaintiff, as the Takait Maharaj by right of primogeniture obtaining in his family for generations past, was in possession of the idol of Shri Nathji belonging to the family and inherited from his ancestor Vithalnathji, with all the property dedicated to that idol, till 8th May, 1876. The property now in dispute is admittedly a part of such property; and the Subordinate Judge has found, and we think rightly, upon the evidence, that all the defendants, except the defendant No. 5, were holding the same as his agents, the same having been made over to them for management as the plaintiff was residing at Nathdwar within the territory of the Rana of Udepur in Mewar. In this suit by the plaintiff to recover such property from them, the defendant No. 5, who is his son, was made a party-defendant on his own application, in order to enable him to con...
Tag this Judgment!Raghunath Ganesh Vs. Mulna Amad
Court: Mumbai
Decided on: Feb-13-1888
Reported in: (1888)ILR12Bom449
Jardine, J.1. The question whether the dhara lands received by defendant in execution of the decree were included in the decree, is a question relating to execution-Muttuvelu Pillai v. Vythilinga Pillai 5 Mad. H.C. R, 185 and Jogendro Narain Koonwar v. Ranee Surno Moyee 14 Cal. W.R. Civ. Rule., 39-under Section 11 of Act XXIII of 1861, which section, if it stood alone, would bar a separate suit.2. The saving provision of Section 387 of Act VIII of 1859 was repealed by Act XIV of 1870. It deals with procedure only.3. Section 3 of Act X of 1877 only saves 'procedure prior to decree', and leaves procedure after decree to the uncontrolled operation of the bar reproduced in Section 244.4. Assuming that the 'proceedings' in execution of the decree of 1853 had commenced before the 28th August, 1861, when Act XXIII of 1861 came into force, these 'proceedings' would not be affected by the repeal in 1870. See Section 6 of the General Clauses Act I of 1868.5. But where is the authority for treati...
Tag this Judgment!Vishnu Vishwanath Vs. Hur Patel and ors.
Court: Mumbai
Decided on: Feb-09-1888
Reported in: (1888)ILR12Bom499
Nanabhai Haridas, J.1. The havala mentioned by the District Judge was an agreement such as is contemplated in paragraph 1, Section 257A, Civil Procedure Code, and, as such, void on account of want of sanction by the Court which had passed the decree.2. If the bond sued upon be regarded as one in consideration of the havala, there was no consideration for it; the havala itself was void for the reason above mentioned.3. If it be regarded as an agreement for the satisfaction of the decree, it comes under paragraph 2, Section 257A of the Code, and is void for want of the Court's sanction.4. For these reasons, we consider the whole bond to be void....
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