Court : Mumbai
Reported in : (1877)ILR1Bom554
Michael Westropp, C.J.1. We think that we must regard the Assistant Judge as having found that the land, the subject of this suit, was undivided at the time of its sale by Nagu, (November 17th, 1868), to the plaintiff Ramabai, and that fact does not now seem to be in controversy.2. The contention of the appellant (the second defendant) Ananta is that an issue ought to have been directed to ascertain whether the leprosy, with which it is admitted he is afflicted, is congenital. His learned pleader has referred in support of that view to Manu, Ch. IX, pl. 201, 'Eunuchs and out-castes, persons born blind or deaf, mad men, idiots, the dumb, and such as have lost the use of a limb, are excluded from heritage,' but neither that text nor Calluca Bhatta's Commentary upon it applies to the case of leprosy. The word Nirindriya' rendered, as we think rightly, by Sir W. Jones, as in that passage meaning 'such as have lost the use of a limb,' I.L.R. 1 Bom. 185 could not, even in its more extended s...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom559
Michael Westropp, C.J.1. We adhere to the opinion expressed in Parvati v. Bhiku 4 Bom. H.C. Rep. 25, that since Act XXI of 1850 came into force, mere loss of caste does not occasion a forfeiture of rights or property. We, therefore, proceed to consider this case independently of the fact that the defendant has been put out of caste. On the findings of the learned District Judge we must regard the defendant as guilty of incontinence since the date of the decree in appeal No. 102 of 1867, made by Mr. West, when Judge of Kanara, and affirmed here in special appeal. The Judge in the present suit says that it is asserted that she is still living in that condition; but he does not positively find that allegation to be true--and he does state that she resides with her mother-in-law.2. The Hindu law books of especial force in this Presidency--Mayukha, Ch. IV, Section 8, pl. 9; Mitakshara, Ch. II, Section 1, pl. 37, 38--support the position that even an incontinent widow is entitled to a bare m...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom574
Michael Westropp, C.J.1. The plaintiffs and defendant's mortgages were both for sums exceeding Rs. 100. Act XX of 1866, under which the defendant's mortgage was registered, makes no provision in such cases for priority of deeds of sale or mortgages registered under that Act over deeds of sale or mortgages which might have been, but were not, registered under Act XIX of 1843. We cannot, therefore, adopt the view taken by the Assistant Judge of the consequence of the non-registration of the plaintiff's mortgage which was executed on the 26th July 1860, and was, therefore, registrable under Act XIX of 1843, the defendant's mortgage having been executed on the 20th October 1869, and registered under Act XX of 1866.2. The authorities relied upon by the Assistant Judge were cases in which all of the conflicting documents were registrable under Act XIX of 1843, and, therefore, are inapplicable to the present case, in which one of the mortgages only was registrable under that Act, and the othe...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom506
Green, J.1. The question for decision here is as to the correctness of the report of the Assistant Commissioner of this Court, dated the 12th December 1876, that Awabai, the widow of one Naserwanji Kawasji Davur (one of the sons of Kawasji Nanabhai Davur, the intestate in the cause), is not entitled to any share in the property of the said intestate. The intestate died on the 22nd December 1873, leaving, as appears by the report, a widow Mithibai, two sons, Mancherji and Dorabji, the widow (Dinbai) and son (Rastamji) and daughter (Mithibai) of a son Kharsedji, who predeceased his father Nanabhai on the 8th June 1872, and three daughters, Serinbai, Dhunbai, and Jerbai. The said Mancherji, Dorabji, Kharsedji and Naserwanji were the sons, and the said Serinbai was the daughter of the intestate by his second wife, Motlibai; and the said Dhunbai and Jerbai were his daughters by his surviving wife and widow, the said Mithibai. The son Naserwanji died in the life-time of his father on the 28t...
Tag this Judgment!Court : Mumbai
Reported in : (1878)ILR2Bom97
Michael Westropp, C.J.1. The Court, following its own decision in Vasudev Moreshwar Gunpule v. Rama Babaji Dange 11 Bom. H.C. Rep. 149 and the Calcutta decision--Rohinee Debia v. Shib Chunder Chatterjee 15 Cal. W.R., 558, holds that the deed of assignment (Exhibit No. 4), being for a consideration less than Rs. 100, did not require registration. It may be that the parties to the original mortgage (Exhibit No. 3), valued the security and the solvency of the parties at Rs. 100 or upwards, but it does not thence follow that either or both were deemed of that value at the date of the assignment, and it was for the parties to that latter transaction, for the purposes of registration, to fix the value of the interest thereby assigned. This Court, therefore, reverses the decree of the District Judge and remands this cause for a new trial on the merits....
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom503
1. We think that the transaction of the 8th December 1872 amounted to the substitution of a new contract for that contained in the promissory note of 14th April 1870, under which new contract the plaintiff's, in consideration of a payment of interest in advance up to the 1st April 1873, agreed to defer their demand for the principal, and to forbear to sue until that day. Hence the period of limitation must be reckoned from that day, and the suit, having been brought on the 27th March 1876, is not barred. The verdict, therefore, should stand....
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom505
1. Let the decree for the plaintiffs by the Court of Small Causes stand. The costs of this reference must be paid by the defendant....
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom496
Charles Sargent, J.1. The question is whether production is to be ordered of certain documents, and especially of the partnership books belonging to the firm of Ibrahim Kadu and Co., for the purpose of being inspected by the plaintiff. The plaintiff alleges that he was a partner in that firm, and that a sum of money was caused to be carried to his separate account in the books of that firm. The objection to their production is that the defendant is not the only person interested in the books in question, but that the other partners in the firm of Ibrahim Kadu and Co., who are not parties to this suit, and who are not shown to consent to the production of the books, are also interested in them. The books are at present in the possession of the Master in Equity, an officer of this Court, and the question is,--Will the Court order their production? Now there appears to be no settled practice in cases of this nature--it is advisable, therefore, to consider the English authorities.2. The ru...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom467
1. The Court is of opinion that the suit will not lie. An action is not maintainable for damages occasioned by a civil action, even though brought maliciously, and without reasonable and probable cause (see Addison on Wrongs, p. 599, 3rd edition); neither will a suit lie to recover costs awarded by a Civil Court, though it may lie for costs., which could not be so awarded: Chengulva Raya Mudali v. Thangatchi Ammal (6 Mad. H.C. Rep. 192)....
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom462
Bayley, J.1. The objection having now been taken, must, after the short consideration I have been able to give it, I think, be allowed. Section 33 of the High Courts Criminal Procedure Act (X of 1875) enacts that 'The jury shall consist of nine persons, who shall be chosen by lot from the persons summoned to act as jurors.'2. Section 39 enacts that, save as therein provided, the High Courts shall retain all their present powers respecting the summoning empannelling; qualification, challenging and service of jurors, and shall have power to make such rules on these subjects (consistent with the provisions of the Act) as seem to them to be proper; and that 'all rules relating to jurors now in force in the same High Courts shall (so far as they are consistent with this Act) remain in force until repealed or altered by new rules made under this section.'3. The rule as to ballotting for petty juries, which was made in 1842, is to be found at p. 155 of the Collection of Rules and Orders of th...
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