Court : Mumbai
Reported in : (1877)ILR1Bom269
..... the absence of such gift, it would seem that, independently of the provisions of the indian succession act x of 1865, as applied by act xxi of 1870 to the wills executed, within the local limits of the ordinary civil jurisdiction of the high courts, by hindus after 1st september 1870, the executors of a hindu do not, in the character merely of executors, take any estate, properly so called, in the property of the deceased; or, in other words, that the mere ..... for the foregoing reasons i have arrived at the conclusion that the defendant is entitled to rely on the limitation act, as being a purchaser, not only for value, but bona fide, within the meaning of article 134 of schedule 2 and of section 10 of the indian limitation act ..... conjunction with the 11th clause, shows, in my opinion, that the testator did not intend that his wife should take his general estate for her own benefit absolutely, with power of free disposal thereof at her discretion. ..... i do not consider that she took more than a life estate, for the reason, mainly, that after her death the executors of the will, not her heirs, were ..... of courts of equity is, that if a purchaser of an estate at its full value takes with notice of a trust, he is (subject to the protection afforded by the statutes of limitation) bound to the same extent and in the same manner as the person of whom he purchased', seems rather to indicate that, as a general principle, a purchaser for value, though with notice of a trust, is protected by the .....
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom462
..... section 49 of act x of 1875, however, says that all rules relating to juries now in force in the high courts shall (so far as they are consistent with the act) remain in force until repealed or altered by new rules made under that section ..... of, in the supreme court at fort william, should be tried by a jury of british subjects, resident in the town of calcutta, and not otherwise; and that it was expedient that the right and duty of serving on juries within the limits of the local jurisdiction of the several supreme courts at calcutta, madras, and bombay should be further extended. ..... made and established by such courts of judicature shall be certified under the hands and seals of the judges of such courts, to the president of the board of commissioners for the affairs of india, to be laid before his majesty for his royal approbation, correction, or refusal; and such rules and regulations shall be observed until the same shall be repealed or varied, and in the last case with such variation as shall be made therein.'14. ..... more in accordance with the provisions of the new act and the rule of 1842 than the mode hitherto adopted, and i accordingly direct that the names of the persons of all nationalities be put into one box, and that nine names be drawn out indiscriminately to form a jury for the trial of the present case.note furnished by ..... collection of rules and orders of the supreme court of bombay printed for government in 1852--a collection which, as appears from the preface, was .....
Tag this Judgment!Court : Mumbai
Reported in : (1878)ILR2Bom84
..... jurisdiction over houses, lands, and tenements in the case of tenants and occupiers in section 91 of the same act, fix upon the word 'demands,' used in the title of that act (and, in referring to it, repeated in the preamble of act xxvi of 1864), a meaning which includes demands for property moveable and immoveable; and the mere circumstance that the words 'value of the property in dispute' are omitted in section 2 of act xxvi of 1864, would not justify us in giving to the word 'demand,' which ..... the proposition, that the word 'demand' in section 2 of act xxvi of 1864 bears the same meaning as the word 'demands' in the title of act ix of 1850, is confirmed by section 3 of act xxvi of 1864, although the words 'value of the property in dispute' occur in that section; for it is manifest that the legislature, in enacting, as it did by the 3rd section, that in case of an agreement by the parties, or their attorneys, that the court shall have power to try any action (not included in the proviso, i.e. ..... together as if they were one law, and interpreted as consistently as harmoniously as their language will fairly admit,-a rule which the indian legislature had vividly in its mind when enacting act xxvi of 1864, the last (16th) section of which expressly directs that 'this act and the said act ix of 1850 shall be read and construed as one act, as if the several provisions in the said act contained, not inconsistent with the provisions of this act, were repealed and re-enacted in this .....
Tag this Judgment!Court : Mumbai
Reported in : (1878)ILR2Bom91
..... but the learned chief judge of the court of small causes has held that, having regard to the fact that this suit is brought under section 91 of act ix of 1850, and to the nature of the defence set up, whereby the defendant disputes the plaintiff's title on the grounds already stated, the court of small causes had not jurisdiction to try the suit, and, subject to ..... 145, et seq), shows that, in our opinion, the bombay court of small causes would have jurisdiction to try this suit, if it had been brought under section 25 of act ix of 1850 taken in conjunction with section 2 of act xxvi of 1864, provided that the room did not exceed in value rs. ..... if, however, it appears to the court of small causes that the clerk of the court, and not the plaintiff, is, as very probably may be, the person responsible for the mistaken form in which the summons has been issued, it would, we think, be fair to permit the plaintiff to amend his summons so as to render it conformable with a claim under section 25 of act xxvi of 1864, provided the court be satisfied that the room sued for does not exceed rs. ..... if the court of small causes be of opinion that there are not in this case such circumstances, as above indicated, which would justify an amendment, we think that the judge would be right in dismissing the cause for want of jurisdiction, on the ground that a defence resting upon an adverse title to the fee takes the case out of section 91 of act ix of 1850.8. .....
Tag this Judgment!Court : Mumbai
Reported in : (1878)ILR2Bom148
..... sections 1, 3, 341, and 342 of the new civil procedure code operated to effect, as on the 1st october instant, a legislative general gaol delivery throughout british india of all civil prisoners in custody under process issued by virtue of the acts repealed by section 3 of the new code, in cases where such prisoners had on the said 1st october been in custody for six ..... and when, as in process of time, the feeling of the manifold injustice of lengthened imprisonment for making default in payment of a sum of money became stronger, one would naturally expect that such change of view would be adopted by the indian ..... section 6 of this act it is enacted as follows: 'the repeal of any statute, act or regulation shall not affect anything done, or any offence committed, or any fine or penalty incurred, or any proceedings commenced, before the repealing act ..... passed in 1868, of which the 3rd section empowers the court of chancery 'in a suit for partition, where, if this act had not been passed, a partition might have been made,' if it thinks such a course desirable to direct a sale of the estate and distribution of the proceeds in lieu of a partition of the estate 'on the request of any of the parties ..... purely prospective; were we, in advancement of a supposed policy, to give to them a retroactive effect, we should travel beyond our powers, and, instead of limiting ourselves to the duty of expositors and administrators of the law, should usurp the office of supplementary legislators. .....
Tag this Judgment!Court : Mumbai
Reported in : (1883)ILR7Bom293
..... the appellant in this case had filed an award against the respondent on 19th december 1873, and by his darkhast of 1874 applied for and obtained the attachment of certain property of his judgment-debtor, which was, however, subsequently removed on the 16th july, 1875, on the application of one bhaskarav, a minor, represented by his mother and guardian, lakshimibai. ..... the representative of the judgment-creditor then applied to the subordinate judge to substitute his name for that of his father and to proceed with the case, and the court held that the application was not barred by article 179 of act xv of 1877, adopting the view taken in the decisions in booboo pyaroo v. ..... respondent, at the latest, after the removal of the attachment on 10th july, 1875; but, in any view of the appellant's position, we can discover no way of escaping, in the circumstances of this case from the express language of the act, which requires that this application for execution should be within three years of the former one. ..... 355 that an application after the removal of an obstacle (such as the injunction was in that case) which has for a time rendered execution impossible, is not an application to execute the decree within the meaning of act xv of 1877, schedule ii, article 178, but merely an application for the continuance or revival of the former proceedings. .....
Tag this Judgment!Court : Mumbai
Reported in : (1883)ILR7Bom332
..... the many cases of actions against sheriffs serve to illustrate this principle, and a collector will do well to refer the parties concerned to the court whenever questions arise in which his duty is not clearly marked out by the terms of the code or other statute law, under which he may have to execute a decree or judicial order.3. ..... in taking on himself the responsibility of departing from the decree sent to him for execution, a collector acting by his own acknowledgment ministerially, when he delegates his function to an assistant or a mamlatdar, incurs a risk of having to answer is damages to the person who is by any error or mistake deprived of the fruits of his judgment. in ..... the court that has made a decree or judicial order, which has then been transmitted for execution to a collector, is not deprived of the judicial powers with respect to it which may still, at any particular time, be competent to such court, and which it would have had, had the order been placed in ..... the decree having been one for a sale 'of immoveable property in pursuance of a contract specifically affecting the same,' the collector's discretion was limited to a choice amongst the three courses specified in section 321 of the code of ..... much less, then, could the officer charged with the duty of executing its decree, vary that decree so as to give it an illegal effect in carrying ..... to such cases the provisions of section 210 of the code of civil procedure, as to the allowance of payment by instalments, do .....
Tag this Judgment!Court : Mumbai
Reported in : (1883)ILR7Bom341
..... adjective 'material' is annexed to the latter word, we must suppose that it is meant to provide against departures from rule which have prevented an investigation being made such as would enable a right, or duty to be established in the way contemplated by the code, or have given effect, or refused effect, to particular rights in ways quite different from what it prescribes. ..... court set aside an order of a subordinate judge for filing an award under section 525, code of civil procedure (act x of 1877). ..... inferior court of judicature;' but the conditions are imposed (a) of a wrong to the applicant; (6) of a duty clearly incumbent on the inferior court; (c) consistency of the order sought with justice;(d) 'that the applicant has no other specific and adequate legal' remedy; and (e) 'that the remedy given by the order will ..... 329 declined to refrain from exercising the power on an assertion that the alleged duty did not exist, and refused to examine that question because the law intended it to be disposed of by appeal to ..... have thus been driven to consider, more closely than in former days, the extent to which they can properly use their undefined powers, in relation to bodies vested with special duties, and a discretion requisite to the due performance of them. ..... in the number of public boards in england in recent times, and the various duties imposed on them, have led to many applications to the superior courts, grounded on complaints of failures of duty which these courts could correct. .....
Tag this Judgment!Court : Mumbai
Reported in : (1885)ILR9Bom137
..... according to section 110 of the evidence act possession is prima facie evidence of a complete title; anyone who would oust the possessor must establish a right to do so; and possession unexplained, held for twelve years, would according to sambhu-bhdi karsandas v. ..... no document of acknowledgment from a mortgagee, may suffer from the difficulty of proving his title of fifty years ago; but, on the other hand, the owner of property is not to be deprived of it on mere vague intangible statements- about a mortgage for which no one could be effectively brought to book in the event of their being proved false. ..... this, of course, was not in itself admissible evidence; but, having been admitted,, it afforded no basis for a claim to redeem any specific land on any specific terms. ..... here the defendant ramchandra has held undoubtedly for about thirty years, and in such a case any one who after the lapse of so long a time comes forward seeking to make him a mere mortgagee must, according to sevaji. ..... in such cases the law leans in favour of possession and an apparent right exercised for many years. ..... the assertion of ownership at all implies some lawful acquisition of title, and the effect of possession as owner cannot be impaired by the surplus statement that the holder acquired by the mode of acquisition most serviceable to a holder for a shorter period. ..... the plaintiff says that he land was, in fact, mortgaged for rs. .....
Tag this Judgment!Court : Mumbai
Reported in : (1885)ILR9Bom198
..... by section 16 the governor in council may determine what are and are not 'lands held for service,' and when he has once made a settlement under the act, he has conclusively elected to treat the estate embraced in such settlement as lands not 'held for service,' since such a tenure would make the settlement impossible see the rules under bombay act ii of 1863 and bombay act iii of 1874, sections ..... of service vatans to persons outside the vatan without the consent of government, and has invested the collector with large powers of control over the vatan property with a view to its preservation for the purposes of the office-nor in any of the other acts is there anything to be found which can be held to protect either the heirs of a vatandar, or the public interest as represented by the collector, 'against the effect of adverse ..... this act, as well as section 20 of regulation xvi of 1827, was repealed by the bombay hereditary officers act (iii of 1874), but by sections 5 and 7 of that act the alienation of any vatan or part thereof, is forbidden, without the section of government to any person not a vatandar of the same vatan and also of the vatan property assigned by the collector under section 23 of the act as remuneration of the officiating vatandar to any person without such sanction; and, lastly, by sections 10 and 11 power is given ..... the public duty does not in this sense, any more than the remission or the imposition of the land-tax, alter the nature of the estate-reval kuber .....
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