Court : Mumbai
Reported in : (1878)ILR2Bom634
Michael Westropp, C.J.1. Although by Hindu law a husband is bound to maintain his wife, she is not entitled to a separate maintenance from him, unless she establishes in proof that, by reason of his misconduct or by his refusal to maintain her in his own place of residence, or other justifying cause, she is compelled to live apart from him (see Special Appeal No. 307 of 1872, Printed Judgments of 1873, page 1). There is not any finding, by the District Judge, that the plaintiff has proved any such case. On the contrary, the District Judge appears to have believed that she voluntarily tore of her nuptial ornament, and returned it to her husband, and of her own accord left him. We reverse the decree of the District Judge, and restore that of the Subordinate Judge, except as to costs. We direct that the parties, respectively, bear their own costs of the suit and of both appeals....
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom639
Melvill, J.1. It seems impossible, therefore, to bring the acts of the prisoners within the definition of murder. What we consider to be proved is this, viz., that prisoners, Nos. 1 and 2, went to the prostitute's house, armed with sticks, intending to beat the deceased; and that prisoner No. 1 caused the death of the deceased, by striking a blow which was likely to cause death, but was not sufficient in the ordinary course of nature to cause death. Under these circumstances, prisoner No. 1 was guilty of the offence of culpable homicide not amounting to murder, and having regard to the provisions of Section 111 of the Indian Penal Code, we consider that prisoner No. 2 was equally guilty of that offence.2. Unfortunately, this Court, as a Court of Reference, does not appear to have power, under Section 288 of the Code of Criminal Procedure, to alter a conviction of murder into one of culpable homicide not amounting to murder, but only to order a new trial. In referred cases there is gene...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom641
Nanabhai Haridas, J.1. The plaintiff Bhagvan Dullabh brought this suit to recover certain immoveable property belonging to his deceased brother, Ranchhod.2. The defendant, Kala Shankar, who is his sister's son, alleged in his written statement that the plaintiff and the deceased Ranchhod were divided in estate; that from his childhood he had lived with his deceased uncle as his son; and that the deceased had made him owner of his estate. He accordingly contended that the plaintiff was not entitled to recover from him the property sued for.3. It is not alleged that there is any nearer relative of the deceased than the plaintiff. The question, therefore, simply is, which of the two is entitled to the property in preference to the other. It is found that the plaintiff and the deceased were divided in estate; and it is also found that the defendant 'from his childhood always lived with the deceased, and seems always to have been treated and recognized and acknowledged by him and even by ot...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom633
Michael Westropp, C.J.1. This suit is brought for a declaration of the right of the plaintiff to be Kazi of the taluka of Havri in Dharwad, and to recover certain fees appertaining to that office received by the first defendant from the second and third defendants, and to restrain the first defendant from disturbing the plaintiff in that office.2. The plaintiff claims under sanads of 1049 Hijri A.D.1639, and 1074 Hijri A.D. 1663, purporting to be granted by the Bijapur Government to persons whom he alleges to have been his ancestors. Those sanads rather treat the grantees as Kazis already than assume to create them Kazis, and confer land and other benefits upon them in respect of a musjid established, or to be established by them, and for light/ing the same, anchor the reading of prayers and sacred books, as well as performing the usual duties of Kazis, and would appear to contemplate the maintenance of the musjid and the reading of prayers, and performance of the duties of Kazis, as w...
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 : (1877)ILR1Bom601
Melvill, J.1. The only objection taken in special appeal to the decision of the Assistant Judge is that he was in error in holding that the sale of the right, title, and interest of the judgment-debtor Mahamed Natha to Ardesir Nasarvanji was null and void, as being contrary to Bombay Act V of 1862.2. It appears that, on the application of the decree-holder, the whole of a bhag or share in a bhagdari village, together with a house and gubhan, standing in the name of Natha Amiji, was attached in execution of a decree against Mahamed Natha, one of the sons of Natha Amiji. The proclamation and certificate of sale were made in the usual terms, and Ardesir became the purchaser of the right, title, and interest of Mahamed Natha in the attached property. In attempting to take possession he was opposed by, Muse Natha, the brother of Mahamed Natha, but with the assistance of the Court he succeeded in obtaining possession of three survey number fields, forming a portion of the bhag, but was refus...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom630
1. It appears to the Court that the provisions of Chapter XXX of the Code of Criminal Procedure do not apply to such a case. Section 415 and the two succeeding sections contemplate proceedings preliminary to and independent of inquiry. Upon general principles where there has been an inquiry or a trial, and the accused person is discharged or acquitted by any Criminal Court, that Court is bound to restore the property, the subject matter of the investigation, into the possession of the person from whom it is taken, unless, as provided for in Section 418, such Court is of opinion that 'any offence appears to have been committed' regarding it, when such order as appears right for the disposal of the property may be made. It is clear that the 2nd Class Magistrate did not consider that any offence had been committed in respect of the property in question: therefore, Section 419 gave the District Magistrate no jurisdiction to interfere. On this ground the Court will cancel his order. Whateve...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom624
Michael Westropp, C.J.1. The special appellant's learned pleader has raised two points--1st, that, the land in dispute having been decided under Bombay Act V of 1864 by the Mamlatdar to have been in the possession of the special appellant (defendant No. 1, Basapa Murtiapa) under the mortgage bond by the second defendant (Basapa Shivapa) of the 1st June 1863, his decision could not be questioned in the present suit on the title, and in Lingapa v. Irapa (Sp. Ap. 363 of 1870 decided on 18th September 1870), a Mamlatdar's order, under Act V of 1864, was treated as conclusive evidence of the facts of possession and dispossession. We, however, do not think that we could adopt that view of the law. The case there cited [ex parte Nagova 3 Bom. H.C. Rep. 108 does not appear to us to be an authority to that effect. It, in fact, merely decided that a Munsif's Court had, as well as a Mamlatdar's Court, jurisdiction to entertain a suit for institution of possession of land, of which the plaintiff h...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom628
Michael Westropp, C.J.1. The acts alleged to have been committed by the respondents, and which are complained of by the special appellant as plaintiff, were so committed before Bombay Act VI of 1873 came into force. The District Judge, therefore, was mistaken in supposing that its 86th section is applicable to this suit. The enactment, which is applicable to it, is Act XXVI of 1850, which does not contain any provision as to notice of action.2. But the Government Pleader has renewed an objection to the jurisdiction of the Subordinate Judge, made in his Court, but not apparently repeated in the District Court. To that objection, founded on Section 32 of the Bombay Courts' Act XIV of 1869, we must yield, inasmuch as we think that the Collector was, in his official capacity of District Magistrate, a member of the Municipality, under the 6th section of Act XXVI of 1850, when the causes of action accrued; and, therefore, the reasoning in Nursingrav v. Luxumanrav I.L.R. 1. Bom. 318 is applic...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom547
Green, J.1. The question for decision is whether, under the 3rd clause of Section 50 of the Indian Succession Act X of 1865, the two attesting witnesses received from the deceased a personal acknowledgment of his signature to the paper here propounded as the last will of Bomanji Burjorji Shroff. The two attesting witnesses state that, in the office of Messrs. Ralli Brothers, Bomanji produced a paper, saying it was his will, and asked them to attest it, which they did, and that this was the same paper which is now propounded as his will. Both say, one more positively than the other, that they then saw no writing on the paper which they attested. If Manickbai's evidence is to be relied on, this paper was written and signed by Bomanji at his own house before he took it to the office of Messrs. Ralli Brothers and there got the witnesses to attest it. The circumstance which, to some extent at least, threw doubt, in my mind, as to that evidence, was this: that an affidavit was proposed to be...
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