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Hari Narayan Brahme Vs. Ganpatrav Daji and anr.
Court : Mumbai
Reported in : (1883)ILR7Bom272
Kemball, J.1. This is an appeal against the decree of the First Class Subordinate Judge of Satara, rejecting the plaintiff's suit on the ground that its subject-matter was res judicata. The claim was for the partition of the village of Saspade, alleged to be undivided ancestral property, and one of the defences raised by defendants 2 and 3 (who alone appeared) was, that there had already been decrees for the partition of some of the family property viz., the villages of Bhawadi and Pangari, in suits brought by each of them separately against their deceased brother, the plaintiff's grandfather, in the Court of the Subordinate Judge at Poona, and that the plaintiff was, therefore, not entitled to prosecute his present claim.2. The law of res judicata is contained in Section 13, Act X of 1877; but the matter in issue in the present suit was obviously not heard and finally decided by the Poona Court, unless it can be said to have been constructively in issue in the former suits under the p...
Tag this Judgment!Empress Vs. Mhasnya Rama
Court : Mumbai
Reported in : (1883)ILR7Bom280
Melvil, J.1. We think, as at present advised, that the Legislature, when it enacted in Section 13 of Act XIX of 1888 that persons who committed certain acts should be 'subject to a fine of ten times the amount of fees', or 'subject to a fine of ten rupees' intended that the penalties specified should be inflicted in full'. Had the penalties so specified been intended as a maximum, with a discretion to the Magistrate to inflict a smaller fine, we think that the phraseology would have been different; and that it would have been enacted that the offender should be subject, not to a fine of a specified amount, but to a fine not exceeding such any such vessel employed as aforesaid, fishing vessel, or harbour craft shall make such default as aforesaid: provided every such subsequent default be made after the expiration of one month from the date of the last conviction specified amount. Such is the phraseology of contemporaneous enactments, e.g., Act XXVII of 1837, Sections 10 and. 11, and Ac...
Tag this Judgment!Pandu BIn Nathaji Vs. Devji BIn Nathaji and anr.
Court : Mumbai
Reported in : (1883)ILR7Bom287
Charles Sargent, Kt., C.J.1. The only question which we have to consider is whether we should allow the appellant to withdraw this second appeal, in order that he may apply to the lower Court for a review of judgment, on the ground of the discovery of new evidence.2. We should feel more difficulty in coming to the conclusion that the Civil Procedure Code sanctions this course, if it were not for the decisions of this Court in Nanabhai v. Nathabhai 9 Bom. H.C. R 89 and in Narayan v. Davudbhai 9 Bom. H.C. R 238. These decisions have been followed by a uniform practice in accordance with them, and this practice ought not, we think, to be lightly disturbed, more especially as it was established to prevent obvious hardship and injustice. It is true that there is a slight difference in the wording of the old law as contained in Section 376 of Act VIII of 1859 and in that of Section 623 of Act X of 1877. The former section allowed a person to apply for a review of a decree of a District Court...
Tag this Judgment!Dundaya Vs. Chenbasapa
Court : Mumbai
Reported in : (1885)ILR9Bom427
Charles Sargent, C.J.1. Both the parties to this suit claim through three brothers, Ningapa, Dhulapa and Chenbasapa The plaintiff by a registered] deed mortgaged to secure Rs. 250, dated 19th September 1877, and defendant by an unregistered deed of sale for less than Rs. 100, dated the 1st April 1877. Both the Courts below held that the plaintiff's registered deed must prevail, having regard to Section 50, Act III of 1877. Defendant by his written statement pleaded that he had been put into possession at the time of the sale to him, and bad since occupied as owner; and it has been argued before us that, assuming that to have been so, the plaintiff would not be entitled to priority.2. It must be taken, we think, as settled law in this Presidency that a subsequent registered purchaser or mortgagee is not to be preferred against a prior unregistered 'purchase or mortgage of which he had notice-Shiuram v. Genu I.L.R. 6 Bom. 515), and, further, that, possession by, or a registration of the ...
Tag this Judgment!HosaIn Khan Vs. Ulfatunnissa Alias Elahijan Bibi
Court : Kolkata
Reported in : (1883)ILR9Cal520
Wilson, J.1. The main question raised in this appeal is one upon the construction of Section 49 of the Registration Act (III of 1877).2. The instrument sued on was not produced; but the loss having been proved, secondary evidence was given of its contents. The exact terms of the document do not appear; but the witnesses all agree that the document, which they call a bond, contained an acknowledgment of a loan of Rs. 2,500, a promise to repay the amount, and a mortgage of immoveable property to secure it.3. The suit is a personal suit to recover the money. And the question is, whether the document can be given in evidence in support of such a personal claim, it not having been registered.4. Section 49 says: 'No document required by Section 17 to be registered shall affect any immoveable property, or confer any power to adopt, or be received as evidence of any transaction affecting such property or conferring such power.'5. The whole question appears to turn upon the meaning of the word ...
Tag this Judgment!Nobo Kishore Surma Biswas Vs. Rudra Kant Surma Sircar and ors.
Court : Kolkata
Reported in : (1883)ILR9Cal663
Richard Garth, C.J.1. I think that the question referred to us should be answered in the affirmative.2. It seems to me that the provisions in the Limitation Acts, which relieve minors and, others under disability from the rules which are binding upon other people, are purely personal exemptions, and must be considered as attaching to the person only, and not to the property, or the title, of those who are under disability.3. The only reason, I conceive, why such persons are not subjected to the ordinary rules of limitation, is that the law considers them incapable of forming a proper by judgment as to bringing suits, or otherwise managing their own affairs.4. But this reason does not apply to the property of such persons, or the titles by which they hold it; nor does there seem to be any good ground why the protection thus afforded to them should be extended to purchasers from them.5. It may perhaps seem rather hard, that in a case like the present, a man purchasing property from a min...
Tag this Judgment!H. Mackintosh Vs. C. Crow and anr.
Court : Kolkata
Reported in : (1883)ILR9Cal689
Wilson, J.1. Two rules of law are established by the Legislature of this country:First.--That a man is free to contract to pay any rate of interest that he chooses upon money borrowed; and the Courts must enforce it against him, Act XXVIII of 1855, Section 21, and there is nothing to hinder his agreeing with regard to the future as well as the present. He may contract to pay no interest at present, but interest hereafter; or to pay one rate of interest now, and a higher or lower rate hereafter.Secondly.--By Section 74 of the Contract Act, 'when a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, the party complaining of such breach is entitled, whether or not actual damage is proved to have been caused thereby, to receive from the party, who has broken the contract, reasonable compensation not exceeding the amount so named.' This section, it will be observed, does away with the distinction between a penalty and liquidated damag...
Tag this Judgment!Mamtazul Huq and ors. Vs. Nirbhai Singh
Court : Kolkata
Reported in : (1883)ILR9Cal711
Prinsep, J.1. I have had the advantage of seeing the judgments of my learned colleagues in this case, and I entirely concur in the opinion expressed by Mr. Justice WILSON. I would only add, as I have already stated in the case of Gureebullah v. Mohun Lall Shaha I.L.R. 7 Cal. 127: 8 C.L.R. 409 that if a reference to the Code of Civil Procedure is necessary to interpret the terms 'date of judgment' used in Section 58, Beng. Act VIII of 1869, we find in Section 185 Act VIII of 1859, and also in Section 202, Act XIV of 1882, that the 'judgment shall be dated by the Judge in open Court at the time of pronouncing it,' and this is supplemented by Section 189 of the former Act and by Section 205 of the Code of 1882; both of which declare that the decree shall bear date the day on which the judgment was passed.' I also confirm the experience of Mr. Justice McDonell, that until the decision of the case of Gureebullah Sircar v. Mohun Lall Shaha I.L.R. 7 Cal. 127: 8 C.L.R. 409 this view of the law...
Tag this Judgment!G.M. Reily Vs. Hur Chunder Ghose and ors.
Court : Kolkata
Reported in : (1883)ILR9Cal722
Cunningam, J.1. The main question in this case is, whether a portion of a tenure can be sold for arrears of rent under Beng., Act VIII of 1869.2. Appellant's case is, that defendant No. 3 who was the landlord of defendant No. 4, and in receipt of a half share of the rent of a tenure rated at Rs. 60-11, caused his share in the tenure to be sold in execution of a decree for arrears of rent. Appellant became the purchaser, and he now claims possession on the ground that he purchased the property free of encumbrances, and that defendant No. 1 has fraudulently and collusively set up a false mortgage by defendant No. 4 and his co-sharers, and in execution of a decree obtained on the mortgage has bought the whole tenure, and ousted appellant from one-half.3. Reference to the sale certificate shows that the sale, at which appellant purchased on 15th January 1875, was held under the provisions of Beng. Act VIII of 1869, and that a jama of Rs. 30-5-6 out of Rs. 60-11 was sold.4. Both the lower C...
Tag this Judgment!Mahomed Ali Khan and ors. Vs. Khaja Abdul Gunny and ors.
Court : Kolkata
Reported in : (1883)ILR9Cal744
Wilson, J.1. In these suits the plaintiffs sought to have their rights declared to shares in 50 khadas of land, and to be put in possession of them jointly with the defendants. The defendants denied the plaintiffs' title and also pleaded limitation. The lower Appellate Court has decided in favour of the plaintiffs on the question of title, holding them entitled to be put into possession, but for limitation. It has, however, held that their claim is barred by limitation. The question before us is whether the rule of limitation has been correctly applied.2. The facts found or admitted, so far as they are material for the present purpose, seem to be these: The plaintiffs and the defendants have a good title to the lands in question jointly. At the date of a Thakbust in 1859 they were in joint possession. The whole of the lands were then jungle, yielding, however, some kind of profit, which has been variously described.3. At some time or times subsequent to that date, but more than ten yea...
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