Court : Mumbai
Reported in : (1877)ILR1Bom269
Green, J.1. The first question is, having regard to the construction to be put on the will of Bhugwan Kulla, and the events that have happened, what is the position and what are the rights of the plaintiff? As to the construction to be put on the will, it is to be observed, in the first place, that there does not appear to be any general disposition of the testator's property unless such general disposition be contained in the 1st and 11th clauses. The executors named as such in the will have various powers given to them by the will, but I do not find any gift to them of the estate. Taking the 1st clause alone, there would, in my opinion, be a gift of the whole estate to the widow, subject, of course, to the legacies, and devises, pecuniary and specific, contained in the will, and subject to the performance of the purposes and objects declared in the will. But the 2nd clause, in conjunction with the 11th clause, shows, in my opinion, that the testator did not intend that his wife shoul...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom253
Michael Westropp, C.J.1. The defendant is right. There is no appeal from that order, but we do not in the least degree sympathize with him in his struggle to deprive his attorney of his costs. I may also add that we are of opinion that Mr. Justice Bayley's order was perfectly right....
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom286
Michael Westropp, C.J.1. This is a suit in which the plaintiff seeks to obtain a share in ancestral property in the possession of the defendant, whom the plaintiff alleges to be united with him in estate. The plaintiff admits that he has lived separate from the defendant for forty years previously to the institution of this suit in the year 1873, and that he (the plaintiff) has not, during that period, received any portion of the produce or profits of the ancestral property.2. Reg. V of 1827, Chap. I, Section 1, Clause 1, enacted that 'whenever lands, houses, hereditary offices, or other immoveable property have been held without interruption for a longer period than thirty years, whether by any person as proprietor, or by him and his heirs, or others deriving a right from him, such possession shall be received as proof of a sufficient right of property in the same.'3. That section has, both in the Sadr Adalat and in the High Court, been held applicable to suits, such as the present, t...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom295
Michael Westropp, C.J.1. The Assistant Judge having found, as a fact, that the first defendant Manji did not receive the hundi from the plaintiff, or undertake the collection of its proceeds for him, this Court is bound by that finding, and must, so far as the decree of the Assistant Judge relates to the liability of the first defendant, affirm the same with costs.2. As the second defendant Muhammad Raisi has not, nor has either of the other defendants, made any objection in the Courts below on the ground that he (Muhammad Raisi) ought not to have been joined as a co-defendant with the first and third defendants, we must consider this case on its merits as against him. He admitted that in consideration of Rs. 500 received by him from the plaintiff, he (Muhammad Raisi) drew the hundi; hence it became necessary for him to discharge himself from the liability consequent upon that act. He attempted to do so by pleading payment of it to the third defendant, Ibrahim Hansraj. That defence sub...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom267
1. We concur in the decision of the lower Courts, and dismiss the appeal with costs....
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom308
Melvill, J.1. The question referred for the decision of the Full Court is whether a sentence of fine only, or of imprisonment only, under Clause 6, Section 32 of Act XXXI of 1860, is a legal sentence.2. The clause in question enacts that every person who commits the offence thereby made punishable 'shall be liable to be imprisoned, with or without hard labour, for a term not exceeding two years, and also to a fine not exceeding one thousand rupees.' The ordinary meaning of this phraseology would certainly be that the offender may be punished with imprisonment, or fine, or both.3. The difficulty of assigning to the words their natural interpretation arises from the circumstance that in other sections of the same Act (viz., 5, 15, 23, and 34) the Legislature has declared that persons who commit certain offences are 'liable to fine, or imprisonment, or to both fine and imprisonment,' and it may reasonably be argued that, if the Legislature had intended that offences under Section 32 shoul...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom311
Melvill, J.1. The Sessions Judge of Ahmednagar being debarred by Section 473 of the Code of Criminal Procedure from trying an offence committed in contempt of his own authority, the case of the Queen v. Gaji, wife of Ranu, is, under the provisions of Section 64 of the Code, ordered to be transferred for trial to the Sessions Court of Poona.2. If it were not for the peculiar wording of Section 473 of the Code of Criminal Procedure, we should have hesitated to accept the broad proposition laid down in The Queen v. Navranbeg (10 Bom. H.C. Rep. 73), that the offence of giving false evidence is to be regarded as a contempt of Court. But [notwithstanding some rulings of the Allahabad Court to the contrary--Queen v. Kultaran Singh (I.L.R., 1 All. 129) and Queen v. Jugat Mull (I.L.R., 1 All. 162)] we agree with the Madras High Court (see Proceedings, 24th March 1873, 7 Mad. H.C. Rep., Appx. XVII) that the Legislature has, by most inapt words, extended the prohibition contained in Section 473 t...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom318
Michael Westropp, C.J.1. The appellant complains that the plaint in this suit originally instituted against the father of the minor defendant, has been improperly returned to the appellant, since the minor and the administrator of his estate under Act XX of 1864 (the Collector) have been made parties, on the ground that the Subordinate Judge is precluded by Act XIV of 1869, Section 32, from entertaining a suit in which an officer of Government in his official capacity, is a defendant. For the appellant it is contended that the Collector is acting as the officer of the Court which appoints him administrator of the estate of the infant, and not as an officer of Government. But we think that Sections 11 and 15 of Act XX of 1864, taken together, show that the Collector, when appointed to take charge of the estate of a minor, is so in his capacity as Collector, and, therefore, as an officer of Government. When a Collector is transferred to another district, his successor as Collector succee...
Tag this Judgment!Court : Mumbai
Reported in : (1878)ILR2Bom110
Michael Westropp, C.J.1. The plaintiff (respondent) alleges himself to be a Villager of Veluk in the district of Thana, and in virtue thereof by his plaint prays that it may be declared (inter alia), not only that he has a right to graze his cattle within the limits of Mouje Veluk but also within the limits of any other village of the district of Thana. The claim to graze his cattle in villages other than Veluk, is, on the very face of it, preposterous, and on scrutinizing his claim to graze his cattle in the village grazing ground of Veluk, we perceive that it is quite as ill-founded as his alleged right so to utilize the grazing commons in the other villages of the district of Thana. It is admitted that he is not the owner of a single square foot of ground in the village of Veluk, but it appears that he had erected a hut on public ground belonging to that village, where he sojourns for a few months while his cattle are engaged in exhausting the grass set apart for the real villagers....
Tag this Judgment!Court : Mumbai
Reported in : (1878)ILR2Bom120
Michael Westropp, C.J.1. The plaint, which was presented upon the 25th August 1871, states that the cause of action accrued on the 30th day of June 1865. The defendant (who was the special appellant) contends that this is merely a suit for a declaratory decree, and, as such, falls within Clause 16, Section 1 of Act XIV of 1859, and, not having been brought within six years of the alleged accruer of the cause of action, is barred, inasmuch as, he argues, that six and not twelve years is the period of limitation for declaratory suits, even though they should relate to immoveable property. The members of the Division Court differed in opinion--Mr. Justice MELVILL holding that the plea of limitation was in time, and that Clause 16, Section 1 of Act XIV of 1859, and not Clause 12, Section 1, was the enactment applicable to such a declaratory suit as the present suit, which, therefore, was barred. Mr. Justice Nanabhai Haridas held that the plea of limitation was too late, and, further, that,...
Tag this Judgment!