Court : Mumbai
Reported in : (1877)ILR1Bom208
Warden and Gibbs, JJ.1. The Court consider that the Assistant Judge was in error in holding that a Mirasdar cannot oust a tenant who has been put in possession by a Collector (vide Salu v. Ravji 1 Bom. H.C. Rep. 41). Not only has this Court decided to the above effect, but it has also held that a Mirasdar who has given in a razinama has the right to recover his land if he sues within the period of limitation, unless in that document it is expressly stipulated that he has abandoned his miras right. The decree of the Assistant Judge is reversed and the case remanded for re-trial on its merits.2. The Court reverses the decree of the Acting Assistant Judge, dated 4th of March 1868 and remands the cause for re-trial with reference to the above judgment. Costs to follow final decision....
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom538
Kemball, J.1. The suit in this case was instituted in the Court of the 2nd Class Subordinate Judge of Ahmedabad to obtain a decree declaratory of the right of the plaintiff to inherit the property of one Bai Adat, widow of Kirparam Veniram; the claim was valued at Rs. 99, and the plaint was written upon a stamped paper of the value of Rs. 10. The defendant denied the plaintiff's title and claimed to be himself the heir, and the Subordinate Judge found upon the merits that the plaintiff and defendant were co-heirs. Against this decision both parties appealed to the District Court, when the Assistant Judge, who heard the appeal, finding that the property left by the deceased exceeded in value Rs. 5,000, held that the Court of the Subordinate Judge, 2nd Class, had no jurisdiction to entertain the suit, and on this preliminary objection reversed the decree of the Subordinate Judge, and threw out the plaintiff's claim with all costs. The plaintiff now comes to this Court on special appeal a...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR2Bom469
Michael Westropp, C.J.1. In order to sustain this action, the plaintiffs were bound to show that they themselves had suffered some particular inconvenience by the conduct of the defendants: Baroda Prasad v. Gora Chand 3 Beng. L.R 295; S.C. 12. Cal. W.R., 160 Civ. Rul:), per Peacock, C.J., followed in Raj Luckhee Debia v. Chander Kant Chawdry 14 Beng. L.R., 173. The case of Jina Ranchod v. Jodha Ghela (l Bom; H.C. Rep. 1) does not seem to be inconsistent with this. The statement of facts in the report of that case is meagre, but we gather from the argument that some injury to the plaintiff, personally arising from the obstruction complained of, must have been alleged. The plaint in the present case having been read to us, we fail to perceive that any particular injury, resulting to the plaintiffs themselves, is alleged on their behalf; we must, therefore, affirm with costs the decrees of the Courts below which rejected their suit....
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom209
Marriott, J.1. As I hold that the piece of land in question was purchased by and was the land of the ancestors of the plaintiff, and the defendant admits that the plaintiff represents the original purchaser, it follows that the plaintiff is entitled to a verdict, unless the defendant can show that the plaintiff has ceased to be such owner, and the defendant acquired a title as owner either by purchase or by adverse possession.2. The defendant has filed his written statement, in the 1st and 2nd paras. of which he sets out his title to hiss dwelling-house and the land belonging thereto. In the 3rd para. he says: 'The said premises, when purchased as aforesaid by the defendant, consisted of a building with a compound at the rear thereof, and on the south side of the said compound was a vacant piece of land belonging to the plaintiff, who had also encroached, to the extent of 22 1/2 square yards on the land of the defendant at the south corner of the said compound of the defendant's premis...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom523
Michael Westropp, C.J.1. This action was brought by the plaintiff as proprietor of a moiety of the village of Nanej, to recover from the Mamlatdar the plaintiff's half of the land rents for the year 1870-71 wrongfully, as the plaintiff alleges, intercepted and withheld by the Mamlatdar.2. The Assistant Judge, who tried the suit, awarded a part of the claim; but the District Judge, on appeal, reversed this decision on the ground that the suit related to a grant of land revenue and, as such, was, for want of the certificate required by Act XXIII of 1871, barred by Section 6 of that Act.3. The only question, therefore, before us is, whether Act XXIII of 1871 operates so as to deprive the Ordinary Civil Courts of jurisdiction in a suit brought under such circumstances as present themselves here.4. The sanad, whereby the village (or perhaps we should rather say so much of it as belonged to the Satara Government) was granted to Visaji Rav Mandlik, the ancestor of the plaintiff, (special appe...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom97
Michael Westropp, C.J.1. The findings of fact of the Joint Judge are, in special appeal, binding on this Court. Teja Kurad, Gau, and all of the parties to this suit, are admitted to belong to the Sudra tribe, and it has not been denied that their caste is one in which the custom of remarriage prevails. The pleader for the special appellants at first contended that non-access of Bhagu to Gau was not found as a fact, but when offered by this Court an issue on the question of access or non-access, declined it, and abandoned that point. He contended, however, that as the Pat marriage was void, inasmuch as Gau had not been divorced from Bhagu, who was still living, the plaintiff must be regarded as the result of an adulterous intercourse, and, therefore, could not be deemed such an illegitimate child as might, by the Hindu Law applicable to Sudras, succeed to the estate of his putative father. Whether, under such circumstances, the plaintiff is entitled as illegitimate son of Teja Navsaji, ...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom214
5. There should either be one sentence for both offences in a case of conviction of house-breaking by night in order to commit theft, and theft, not exceeding that which may be given by the law for the graver offence, or separate sentences for each offence, provided that in the aggregate the punishment awarded does not exceed that which may be given for the graver offence....
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom237
Green, J.1. Though the right of the plaintiff' to call upon Jivraj Ratansi to execute a legal mortgage of the property, described or referred to in the agreement of 11th August 1865, depended on the plaintiff making a further advance of Rs. 27,000, to complete the Us. 65,000 agreed to be advanced, yet the deposit of the title deeds, though coupled with the expression in the agreement of the purpose of such deposit, as being to enable the plaintiff to get a proper mortgage-deed prepared, would, having regard to the fact that Rs. 38,000 had been already advanced on account of the Rs. 65,000, amount in law to an equitable mortgage to secure the Rs. 38,000, so far as concerned the property comprised in the deeds deposited or any of them: Keys v. Williams 3 Y. & Col. 55, Hockley v. Bantock 1 Russ. 141.2. Upon, or shortly after, 11th August 1865 the plaintiff delivered the agreement and the title-deeds so deposited with him by Jivraj Ratansi to his (the plaintiff's) solicitors. He appears to...
Tag this Judgment!Court : Mumbai
Reported in : 1Ind.Cas.1
Michael Westropp, C.J.1. It seems to us that in this case the Commissioner took the right view of the decree, the important part of which is that which directs the taking' of the account. (His Lordship, after reading the portion of the decree set out above, proceeded.) We do not perceive upon what principle the account decreed could properly have been limited to six years as it was. However, we are not now re-hearing the cause or reviewing the decree, and, taking it with that limit, we have only to say what is the true construction of that portion of the decree as to credits which I have now read. It is contended on behalf of the defendants that moneys which, assuming the defendants to have been silent at the time of payment as to appropriation, would by law have been appropriated to the satisfaction of the earlier claims of the plaintiff, ought, notwithstanding the general rule of law, under the special language of the decree in this particular case, to be applied in satisfaction of t...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom7
West, J.1. The decision of this case turns upon the construction of Section 309 of the Code of Civil Procedure. Its direction that the amount of fees, which would have been paid by the pauper plaintiff, shall, on decision of the suit, be recoverable by Government from any party ordered by the decree to pay the same in the same manner as costs of suit are recoverable, does not preclude the Crown or its representative from urging its prerogative and insisting upon its right to precedence. The circumstance of its being placed in the position of judgment-creditor does not reduce its rights of necessity to those of a private judgment-creditor in case of a contest as to prior satisfaction out of moneys realized in execution. It is a universal rule that prerogative and the advantages it affords cannot be taken away except by the consent of the Crown embodied in a Statute. This rule of interpretation is well established, and applies not only to the Statutes passed by the British, but also to t...
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