Mumbai Court April 1888 Judgments
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Tara Chand Vs. Suklal and anr.
Court: Mumbai
Decided on: Apr-18-1888
Reported in: (1888)ILR12Bom559
Charles Sargent, C.J.1. Both the Courts below, apparently following the strict English law, have held the agreement to be void, on the ground that it was one to furnish money for litigation on the terms of sharing the property recovered. Such a transaction, however, is not necessarily void in this country, unless accompanied by circumstances, which, in the language of the Privy Council in Chedambara Chetty v. Renga Krishna L.R., 1 Ind. Ap., 241 and Ram Coomar Coondoo v. Chunder Canto Mookerjee L.R., 4 Ind. Ap., 23 ; I.L.R. Cal., 233 lead to the conclusion that it was not a 'bond-fide one for the acquisition of an interest in the subject of litigation, but an illegitimate transaction got up for the purpose merely of spoil, or of litigation, disturbing the peace of families, and carried on from a corrupt and improper motive '. In Abdool Hakim v. Doorga Proshad Banerjee I.L.R. Cal, 4 the application of this test is considered, and the judgment may perhaps be of assistance to the Courts be...
Rajaji Krishna Vs. Pirchand Budharam
Court: Mumbai
Decided on: Apr-17-1888
Reported in: (1889)ILR13Bom221
Parsons, J.1. The plaintiff's land was sold by the revenue authorities for default of payment of assessment, and was purchased by the second defendant, who was placed in possession on the confirmation of the sale on the 30th July, 1879. The plaintiff, on the 4th October, 1886, brought this suit to recover possession, on the allegation that the sale was brought about by the fraudulent representation of the first defendant, the inamdar of the land that the assessment was in arrears, whereas the fact was that it had been duly paid to him by the plaintiff himself. The Subordinate Judge held the suit to be time-barred. The Assistant Judge reversed that decree, and remanded the case for trial on the merits. We are of opinion that the Subordinate Judge was right. The sale was one in pursuance of an order by a Collector, or other officer of revenue, and if not for arrears of Government revenue was at any rate a sale for arrears of rent recoverable as arrears of revenue, and, therefore, fell un...
Kessowji Damodar Jairam Vs. Khimji Jairam
Court: Mumbai
Decided on: Apr-17-1888
Reported in: (1888)ILR12Bom507
Scott, J.1. This is a preliminary issue of great importance It raises the question whether subjects of the Native States 6 India resident out of the jurisdiction but with a branch business in Bombay, are liable to be sued in this High Court when the cause of action arose entirely out of the jurisdiction. The subjects of the Native States of India are foreigners in the sense required here, just as much as say the natives of France. They have their own courts, their own jurisprudence, their own procedure and the criminal and civil jurisdiction of the Courts of British India is by treaty excluded from them. A decision in favour of jurisdiction might have curious consequences. If, for instance, a native of France entered into a contract with a French architect for building a house in Paris on certain terms and conditions, the tribunals of this city would be competent to hear a suit brought by one of those parties against the other on a breach of the contract, provided the defendant carried...
Mulji Bhaishankar and anr. Vs. Bai Ujam
Court: Mumbai
Decided on: Apr-16-1888
Reported in: (1889)ILR13Bom218
Birdwood, J.1. The plaintiff's husband, by his will, made the plaintiff's right to a widow's maintenance conditional on her residing at Kava. The defendants who are in possession of the husband's property under the will, refused to give her any maintenance unless she lived with them there. According to the Vyavastha No. 226, quoted at page 261 of Volume I of Shamacharan Sarkar's 'Vyavastha Chandrika,' a widow is 'not entitled to maintenance by residing elsewhere without a just cause if she was directed by her husband to be maintained in the family house.' In the present case, the Assistant Judge has found that the defendants have sought to blacken the plaintiff's character by raking up, without justification, an old scandalous story against her, and is of opinion that she could not, under the circumstances, live happily at Kava. He also finds that the defendants have interpolated a passage into the will, for future use against the plaintiff, to the effect that the will had become neces...
Joshi Kalidas Vs. Koli Dada Abhesang
Court: Mumbai
Decided on: Apr-12-1888
Reported in: (1888)ILR12Bom555
Charles Sargent, C.J.1. We think the Subordinate Judge was right in holding that the stipulation, by which on default of payment of one instalment double the entire amount of the debt was to become at once payable, was in the nature of a penalty. The mere acceleration of payment of the debt would not have that effect, but the enhancing the amount of the debt (in this case amounting to more than 100 per cent.) ought, we think, to be so regarded, as shown by the remarks of the Court in Sterne v. Beck 1 De G., J. & S.595 and The Protector Endowment Loan and Annuity Company v. Grice 5 Q.B. Div. 592 . ...
Dinsha Kuvarji Vs. Hargovandas Govardhandas
Court: Mumbai
Decided on: Apr-10-1888
Reported in: (1889)ILR13Bom215
Birdwood, J.1. The plaintiff sued two defendants, one of whom is an agriculturist, on a khata, which contains not only an acknowledgment of liability to pay the amount due to the plaintiff/'but also an agreement to pay interest. It is clearly, therefore, an 'instrument' purporting to evidence an obligation for the payment of money within the meaning of Section 56 (1) of Act XVII of 1879--Kanji Ladha v. Dhonde I.L.R. 6 Bom. 729 . It is also, we think, an instrument executed by an agriculturist within the meaning of the section, even though only one of the executants is an agriculturist.2. The Judge of the Court of Small Causes, in admitting the unregistered khata in evidence against the defendant, who is not an agriculturist, and in making a decree thereon, has, we think, acted illegally; for Section 56 of the above-mentioned A ct provides that no instrument to which that section is applicable shall be 'admitted in evidence for any purpose,' unless it is written by or under the superint...
Narayandas Ramdas Vs. Saheb Husein
Court: Mumbai
Decided on: Apr-09-1888
Reported in: (1888)ILR12Bom553
Charles Sargent, C.J.1. There is no power in the Court to order the plaintiff to pay a fee for the purpose of enabling the Nazir, who has been appointed guardian ad litem, to put himself in communication with the natural guardians and other friends of the minor, but the Court may well and indeed ought to refuse to go on with the suit if it should be of opinion that the Nazir has been unavoidably prevented from making himself acquainted with the case against the minor. In the present case, the minor is residing in a Native State at a distance from the Nazir, who is thus practically prevented from conducting the minor's defence without incurring expense; the Court might well, under such special circumstances, in the event of the plaintiff refusing to provide the moans for enabling the Nazir to obtain the necessary information from the minor's relations, cancel the appointment of the Nazir (which it is to be remarked is not obligatory on the Court) either in exercise of its inherent power...
E.C.K. Ollivant Vs. Rahimtula Nur Mahomed and anr.
Court: Mumbai
Decided on: Apr-06-1888
Reported in: (1888)ILR12Bom474
Charles Sargent, C.J.1. In this case the plaintiffs sue to restrain the Municipal Commissioner from putting in force against them the powers vested in the Commissioner by Section 195 of Bombay Act III of 1872, by which he is empowered to remove any prosecution or encroachment which forms an obstruction to the safe and convenient passage along any public street. It appears that the eaves of certain buildings belonging to the plaintiffs project over the public road to the extent of one foot eight inches and form the alleged obstruction which the Commissioner desires to, have removed. The width of the road in front of these buildings is about forty feet, and the height of the eaves in question varies, from seven feet to nine feet two inches above the road way. At, the time this suit was filed there was an open drain or gutter, one foot three inches wide, running along by the side of the plaintiffs' buildings and between them and the road. This gutter, however, has since been covered over,...
Shankar Gopal and ors. Vs. Babaji Lakshman and anr.
Court: Mumbai
Decided on: Apr-05-1888
Reported in: (1888)ILR12Bom550
Charles Sargent, C.J.1. The effect of the decree of the 21st April, 1887, was to transfer the vatan property from the mortgagee to the third plaintiff, who according to the Collector's certificate, is not a vatandar. But the mortgagee himself was not a vatandar, and under such circumstances we do not think that the decree was within the contemplation of Section 10 of (Bombay) Act III of 1874, the object of which was to give practical effect to the prohibition against alienations by vatandars as provided by Sections 5 and 7. The Court should, therefore, not act upon the certificate of the Collector, but leave him to take proceedings, if he thinks proper, under Section 6, Clause 1. Under these circumstances it is not necessary to answer the other questions....
Parsha and ors. Vs. Lagmya Shan and ors.
Court: Mumbai
Decided on: Apr-03-1888
Reported in: (1889)ILR13Bom83
Birdwood, J.1. In this suit the plaintiffs claim as vatandar Mahars of certain villages, the right to receive the aya relating to their office, as against defendants Nos. 1 to 5, who are Mangs of the same villages and claim the right to receive the aya equally with the plaintiffs. The plaintiffs sue also to restrain the defendants Nos. 6 to 15 from paying aya to the defendants Nos. 1 to 5. An objection was taken to the suit that the plaintiffs, who belong to a numerous class, having the same interest as they have in the suit, have omitted to adopt the procedure prescribed by Section 30 of the Code of Civil Procedure. With that objection it is unnecessary for us to deal, as we concur with the lower appellate Court in holding that the suit itself is not maintainable in a Civil Court.2. The claim is based on the alleged right of the plaintiffs to perform the duties in respect of which the aya is payable. They do not seek to establish their right generally to be recognized as Mahars, from ...
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