Court : Mumbai
Reported in : (1877)ILR1Bom500
1. We are of opinion that the Assistant Judge was wrong in throwing out this claim on the ground that the assignment to the plaintiff was invalid. Upon a sale in execution of a decree the property in the thing sold passes to the purchaser, and we know of nothing in either the Hindu or the English law which debars a third person from taking an assignment of such property from the auction-purchaser, albeit it had not been reduced into possession. This is not the case of a speculative claim, such as this Court has refused to recognize, and we are unable to concur in the view taken by the Assistant Judge that the sale of such a title is 'against policy and justice and tending to promote unnecessary litigation.' We reverse the decree of the lower Court, and return the case in order that the claim may be disposed of on the merits. Costs to follow final decision....
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom320
Michael Sargent, J.1. The plaintiffs are a Joint-Stock Company incorporated under Act X of 1866, and seek to recover from the defendant, as the registered holder of 4 shares in the Company, the sum of Rs. 2,000 with interest, being the amount of two calls on the above shares. The defence set up is that the defendant is not a member of the Company, and that his name has been improperly placed on the register. There is but little (if any) dispute between the parties as to the circumstances under which the defendant became connected with the plaintiffs' Company. It appears from the evidence of Javerilal Umiashanker, one of the promoters of the Company, that he and his co-promoter prepared a Memorandum of Association, Exhibit A in this suit, and that some short time before the registration of the Company, which took place on 24th October 1874, he went to the defendant's place of business, and after stating to his Munim Kallianji Hansraj, the objects of the Company, and reading to him the s...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR2Bom19
Nanabhai Haridas, J.1. This is an appeal against a judgment of the District Judge of Thana The appellants (plaintiffs below) allege in their plaint that they and the respondents are fishermen; that, in accordance with the custom of their trade, they have been for years erecting their fishing stakes annually opposite to the village of Yerangal, at a distance of between two and three miles from the coast, those of the respondents being to the north of, and about 600 feet distant from, their own; that in the month of March 1872, the respondents, in addition to their customary stakes to the north, maliciously and wrongfully erected other fishing stakes to the south, at a distance of only 120 feet from those of the appellants, and that thereby they wrongfully disturbed the latter in the enjoyment of their right to fish, and unjustifiably prevented fish from getting into their nets, thus causing them considerable pecuniary loss. They, therefore, claim from the respondents Rs. 3,000 as damage...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom352
Melvill, J.1. In this suit the plaintiff seeks to remove an attachment placed by the Collector of Thana on a cocoanut oart or garden situated in the outskirts of the town of Bandora in Salsette, which the Collector has attached in order to levy payment of a fine of Rs. 2,340, being sixty times the assessment on the oart, imposed as a penalty in consequence of the plaintiff having built a bungalow in the oart without the Collector's permission.2. A preliminary question arises regarding the sufficiency of the stamp upon the plaint. We agree with the Assistant Judge that the stamp is sufficient, and, therefore, the additional amount which the District Judge has levied from the plaintiff must be refunded. Clause viii., Section 7 of Act VII of 1870, prescribes that in suits to set aside an attachment of land, or of an interest in land or revenue, the fee shall be according to the amount for which the land or interest was attached: provided that, where such amount exceeds the value of the la...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom333
Michael Westropp, C.J.1. The deed (Exhibit No. 3), dated 20th May 1868, purports to be a sale of the property mentioned therein by the defendants to Haridas, since deceased, and who is represented by his brother Sundardas as his heir. That sale is, in the deed, stated to be in consideration of Rs. 1,000 paid to Venkan Bhat, who was a creditor of the defendants to that amount. The plaintiff seeks to eject the defendants from a house at Bijapur forming part of the property mentioned in the deed. The defendants admit that they executed the deed, and do not allege that they were induced so to do by fraud or intimidation on the part of Haridas, the vendee, or that they were under any mistake in fact or in law, or any fact invalidating it, or other circumstance bringing them within the exceptions in Proviso 1 to Section 92 of the Indian Evidence Act, I of 1872. The defendants, however, allege that, contemporaneously with the deed of sale, they entered into an oral agreement with Haridas that...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR2Bom9
Green, J.1. This is an application by one Jaikisondas Gopaldas for a grant of letters of administration to himself of the goods, chattels, rights, and credits of the above-named Nathibai, who died, on the 19th February 1876 in Bombay, intestate, a widow and without issue, and leaving property within the Presidency of Bombay and within the local jurisdiction of this Court.2. To this application a caveat has been entered by the above-named Harkisondas Hullochandas and Mathuradas Purshotamdas. One Motilal Damodhar (though not having himself entered a caveat), has filed an affidavit in support of the caveat so as aforesaid entered. One Ganpatlal, the son of one Dulabdas, has presented a petition and appeared at the second day's hearing, the object of the petition being to bring to the attention of the Court that he and his said father object to the application being granted. The question for decision is, whether the applicant, as nearest in blood to the deceased Nathibai, is entitled to he...
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 : (1877)ILR1Bom347
1. The Acting Sessions Judge has considered this, case very carefully, and the Court agrees in his conclusion. The Court does not find it established that there is any valid custom by which a woman of the caste of the first accused can claim a right to marry again, because her husband is a leper, and without having obtained a release from him. The Court does not recognize the authority of the caste to declare a marriage void, or to give permission to a woman to re-marry. The wife in this case, and the appellant, who performed the ceremony of re-marriage, probably acted in a bond fide belief that the consent of the caste made the second marriage valid; but though that circumstance may be taken into account in mitigation of punishment, it does not constitute a defence to a charge under Section 494 of the Indian Penal Code, or under that section combined with Section 109 of the Code. The Court confirms the conviction; but, as the appellant has already undergone imprisonment for 25 days, i...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom314
Michael Westropp, C.J.1. The plaintiff claims under a mortgage of the 27th November 1871 for Rs. 50, which was unregistered and unaccompanied by possession. The defendant claims under a mortgage of the 17th March 1873 for Rs. 150, which was registered, and which was accompanied by possession. The plaintiff has not alleged that the defendant, when he took his mortgage with possession, had notice of the plaintiff's unregistered mortgage; and the plaintiff not being in possession, and his mortgage being unregistered, there cannot be any presumption that the defendant had any such notice. Further, the plaintiff obtained, on the 20th February 1874, in a suit instituted in 1873, a money-decree against the mortgagors (but not in respect of the mortgage) for Rs. 100, and caused the mortgaged property to be attached and sold by the Court. The defendant (being in possession as a mortgagee of 1873) purchased the mortgaged premises for Rs. 86 at that sale on the 17th September 1874, and holds an u...
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...
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