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Reg. Vs. Devama and Somshekhar
Court : Mumbai
Reported in : (1877)ILR1Bom64
1. The accusation made against the accused in this case constituted it a warrant-case falling under the provisions of Section 213 et seq. of the Code of Criminal Procedure. The Magistrate, Mr. Middleton, after an arrangement had been come to between the parties, divided the property between them and dismissed the complaint. By 'dismiss the case' we understand the Magistrate to have meant the same thing as is indicated by Section 215 of the Code of Criminal Procedure, where it says that the Magistrate, if he finds that no offence has been proved against the accused person, shall discharge him.' 'Dismissal of a complaint' is a phrase properly applicable only to a summons case under Chapter XVI of the Code, and incapable of being applied, as Section 212 shows, to any complaint, 'except in so far as it refers to a summons case.' The provisions of Section 215 are highly useful in many cases. They enable a Magistrate, when circumstances make it expedient, to dispose of an accusation without ...
Tag this Judgment!Shankar Ramchandra Vs. Vishnu Anant
Court : Mumbai
Reported in : (1877)ILR1Bom67
West, J.1. The appellant urges that the deed of partition, on which he sues, is excluded from the operation of Section 17 of Act XX of 1866 by being amongst those enumerated in Section 18, Article 7,* as optionally registrable. We do not think that an instrument, to which one of the terms in that article may be applicable, is freed by that circumstance from the necessity of registration under Section 17, if such necessity otherwise exists. If the instrument is one properly falling under Section 17, apart from the provisions of Section 18, Article 7, it ranks amongst the documents before provided for; and the specific provision, imposing a necessity for registration, is not superseded by a general provision for optional registration which is satisfied by applying it to instruments such as those affecting only moveable property not included within the scope of Section 17. The more specific rule, regard being had to the purpose of the Act, is that in Section 17 which applies only to some ...
Tag this Judgment!Balkrishna Bhalchandra Vs. Gopal Raghunath
Court : Mumbai
Reported in : (1877)ILR1Bom73
West, J.1. The District Court has confirmed the order of the Subordinate Judge, limiting the amount, recoverable as interest by the judgment-creditor, to a sum equal to the principal sum awarded by the decree. This decision is based on the rule of the Hindu Law which limits the amount recoverable at one time by way of interest to the amount of the principal. But there is no authority for limiting the amount recoverable in execution of a decree by any such rule. As regards purely private transactions, the law for the protection of the weaker party controls his freedom of contract in the way to which we have referred, or, at least, refuses to enforce the debtor's engagement by means of a duty imposed on the Courts of exercising their powers of coercion to give effect to what it presumes to be an extortionate or unduly rigorous bargain. But the same reason, it is obvious, does not apply to the execution of a decree of a Civil Court. In making such a decree the Judge is not liable, as the ...
Tag this Judgment!Babaji Hari Vs. Rajaram Ballal and anr.
Court : Mumbai
Reported in : (1877)ILR1Bom75
West, J.1. The first point that arises for disposal is, whether a pauper respondent is entitled to present objections at the trial of an appeal without payment of stamp duty under the Court Fees Act VII of 1870. Section 16 of that Act says absolutely that the Court shall not hear such objections until the respondent shall have paid the additional fee due under the Act. No exception is made in favour of pauper respondents. It has been argued by Mr. Ghanasham that a pauper respondent is, when he presents an objection, a pauper appellant, and entitled to the indulgence in that character; but the grammatical construction of the Act does not allow this indulgence to him, and the reason for this probably was that he already had the opportunity of directly making an appeal without expense for court fees, and that an inquiry into his pauperism at the last stage of the case would involve great delay and inconvenience. We do not think, therefore, that there is any good reason for departing from ...
Tag this Judgment!Tarachand Pirchand Vs. Lakshman Bhavani
Court : Mumbai
Reported in : (1877)ILR1Bom91
West, J.1. Haibati's son Bhagu, it is clear, passed to the Mamlatdar a razinama of the land in dispute in favour of the defendant Lakshman. Tarachand, as subsequent purchaser of Haibati's rights, now seeks to eject Lakshman, asserting that, as the land is miras, the resignation by Bhagu conferred no more than a precarious right of occupation terminable at the will of Haibati or of the successor to Haibati's interest. It is plain, however, that Bhagu gave up possession of the land in dispute to Lakshman. Lakshman's possession is prima facie evidence of complete ownership throwing the burden, according to Section 110 of the Indian Evidence Act, of showing that it is held on some inferior title, upon him who seeks to dislodge the possessor. Under the English Common Law 'if the defendant pleads livery and seizin from the plaintiff, the plaintiff cannot reply that the livery was conditional without showing the deed, inasmuch as the plaintiff is estopped to defeat his own livery by a naked a...
Tag this Judgment!In Re: Jagjivan Nanabhai
Court : Mumbai
Reported in : (1877)ILR1Bom82
West, J.1. In arrest of those proceedings (the criminal proceedings), which are now pending, Jagjivan applies to us and urges, inter alia, that the proceedings before the Subordinate Judge of Thana were coram non judice, he having no authority to attach and sell immoveable property in execution of the decree of the Bombay Court of Small Causes, which itself could proceed against moveable property only. It was argued by Mr. Branson on his behalf that Section 287 of the Code of Civil Procedure did not give to the Subordinate Judge greater power in execution matters than the Court which passed the decree.2. We cannot say why, when the Legislature enacted Section 287 of the Civil Procedure Code, it allowed Section 78 of the Presidency Small Cause Court Act IX of 1850 to stand. Looking, however, to the wording of the former enactment, we find that it runs as follows: 'The copy of any decree, or of any order for execution, when filed in the Court to which it shall have been transmitted for t...
Tag this Judgment!Devrav Krishna Vs. Halambhai and anr.
Court : Mumbai
Reported in : (1877)ILR1Bom87
West, J.1. In the former suit between the same parties who are now before the Court, the plaintiff alleged that the defendants had engaged to furnish him with a quantity of firewood to be procured from other persons, and sued for damages for its non-delivery. The defendants answered that they had acted merely as the plaintiff's agents in making a contract with a third party, and were not responsible for the fulfillment of the contract. The material issue raised by the Court of First Instance was, whether the defendants had themselves contracted to deliver the wood, and the decision was that they had not. After the case had been heard, the plaintiff sought to have another issue raised on the question of whether the defendants, as agents, were, by usage, liable for the non-fulfillment of the contract, but this was refused by the Subordinate Judge on the ground that it would essentially change the nature of the suit. In this the Subordinate Judge was quite right, as may be seen by referen...
Tag this Judgment!In Re: the Last Will and Testament of Ramchandra Lakshmanji
Court : Mumbai
Reported in : (1877)ILR1Bom118
Michael Westropp, C.J.1. We must uphold the finding of the Ecclesiastical Registrar. The annuity, although not payable until October 1877, is an item of property capable of present valuation. The provision in Section 12 of Act XVIII of 1869, that the whole amount secured for the payment of an annuity shall be taken to be ten times the annual payment, is in that same section expressly stated to be made for the purposes of that Act, and we do not see how we can extend it. It also seems to us that the provisions of Chapter III of Act VII of 1870 must be limited to suits, and cannot be held to apply to probates. The fee payable in respect of the probate of a will is fixed by Act VII of 1870, Schedule I, Clause 11, at 2 per cent, on the value of the property, and we consider that the value of this annuity for the purpose of determining the amount of probate fees must be taken to be the market value. In the present case, the annuity being mortgaged, the only interest in it passing under the ...
Tag this Judgment!Valaji Isaji and ors. Vs. Thomas
Court : Mumbai
Reported in : (1877)ILR1Bom190
Michael Westropp, C.J.1. Agreement paper, Tuesday the 12th of the month of Waisakh Shoodh, the Shak 1796, the year being called Bhav (28th April 1874), on that day to Valaji Esaji and brother, Boharas, residing at Bohara Lane in Camp, Sadar Lane, Bazaar, Poona. From Mrs. J. Thomas, Madam, residing in Lascar Pet, Staff Poona. I give this agreement paper in writing as follows: There is my tiled bungalow, No. 2436, situated at East Street Lane. The agreement for the sale thereof to you by me for Rs. 4,300, four thousand three hundred, was to be made this day, but my creditor Balkrishna Sayapa has gone to Bombay. On his return after about (20) twenty days I will make and deliver a deed of sale in accordance with what is written above. Should I not make and deliver the deed of sale within that time, or on the return of the said person. I will make good whatever loss you may sustain. And Rs. (100) one hundred, which you have now paid as earnest, will be (considered) as forfeited if you do no...
Tag this Judgment!Nathubhai Bhailal Vs. Javher Raiji and anr.
Court : Mumbai
Reported in : (1877)ILR1Bom121
Nanabhai Haridas, J.1. This is a reference made to us by the Judge of the Court of Small Causes at Ahmedabad under Section 22 of Act 'XI of 1865. The question he has referred for our opinion is, 'whether or not a wife, who is separated from her husband, is liable for debt contracted by her. '2. He has not informed us as to the circumstances under which, or as to the purpose for which, the debt was contracted: and the only facts stated to us are that it was contracted jointly by the two defendants, brother and sister, the latter being a married woman living separate from her husband; that 'the defendants are of the Rajput caste and are labourers by calling'; and that, in contracting the debt, the female had acted without her husband's consent. There; is not any statement that the defendant Hetta has been so ill-treated by her husband or his second wife as to warrant Hetta in leaving him, or to create a liability on his part to pay debts contracted by her for necessaries. The mere circum...
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