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Mackintosh Vs. Hunt
Court : Kolkata
Reported in : (1877)ILR2Cal202
Richard Garth, C.J.1. We are of opinion that the contract to pay interest at 10 per cent, per mensem, if the principal sum of Rs. 400 were not paid on September 6th, the duo date of the promissory note, is not in the nature of a penalty. It is true that this rate of interest is in the note called a 'defaulting rate;' but, notwithstanding this expression being used, the contract is in fact merely that if the sum of Rs. 400 he not paid on a certain day, it shall from that day bear interest at 10 per cent, per mensem, or, in other words, at 120 per cent, per annum. In such a provision there is nothing in the nature of a penalty more than there is in a provision, that the promissory note shall bear interest from the day of its date. The case seems to us to differ wholly from that class of cases in which a certain sum is agreed to be paid on a breach of contract, and therefore Section 74 of the Contract Act (IX of 1872) does not apply.2. But, taking the facts as found by the Judge, the effe...
Tag this Judgment!The Empress of India Vs. Judoonath Gangooly
Court : Kolkata
Reported in : (1877)ILR2Cal274
Jackson, J.1. During the argument we disposed of the first part of the objection taken by Mr. Ghose, who has, at our request, carefully and feelingly advocated the case on behalf of the prisoner. That objection was, that we had not before us an appeal such as is contemplated by Section 272 of the Criminal Procedure Code, inasmuch as the petition of appeal had not been preferred by the Government 'prosecutor or other officer, specially or generally appointed in this behalf.' It appeared, and still appears to us, that, under the authority conveyed by the Secretary's letter to the Legal Remembrancer, the appeal was duly made by one of the Government pleaders, and has been regularly and properly sustained before us by the counsel instructed by, and appearing on behalf of, the Legal Remembrancer.2. Mr. Ghose next contended, that in the first place Section 272 was not meant to apply, and did not apply to cases where the accused person has been tried and acquitted by the verdict of a jury; an...
Tag this Judgment!The Empress Vs. Dwarkanath Chowdhry and anr.
Court : Kolkata
Reported in : (1877)ILR2Cal399
Richard Garth, C.J.1. On the first question raised in this reference, we are of opinion that the instrument on which this prosecution is founded is an instrument of transfer within the meaning of Article 38, Schedule II of Act XVIII of 1869.2. On the second question we hold that a Magistrate is bound, for the purpose of ascertaining whether any and what penalty should be imposed, to consider the question whether a person prosecuted under Section 29 of the Stamp Act had an intention to defraud the Government by using a stamp of less value than that required by law.3. A Collector has power to prosecute in every case coming within the provisions of Section 24, but lie is not to do so unless he shall have reason to think that there has been an intent to evade payment of stamp duty. If he does prosecute, the Magistrate is bound, under the terms of Section 29, to record a conviction, provided that it is proved that there has been a making, Ac, of an unstamped or insufficiently stamped instru...
Tag this Judgment!Mancherji Kawasji Davur and anr. Vs. Mithibai
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!Janokee Debea Vs. Gopaul Acharjea and anr.
Court : Kolkata
Reported in : (1877)ILR2Cal365
Markby, J.1. This suit was brought to recover possession of certain properties which the plaintiff alleged to be partly brohmuttur and partly debuttur, the latter being dedicated to certain deities of the names of Kesbub Roy, &c;, and also for the possession of the deities themselves from the hands of the first defendant, Gopaul Acbarjea Gossami. Although the plaintiff described a part of the claim as her own brohmuttur properties, which have devolved upon her by right of inheritance, yet it appears from the judgment of the Court below that it was admitted by both parties that the whole of the claim consisted of properties which, without a single exception, belong to the aforesaid deities. The witnesses of the plaintiff also described them as debutter properties belonging to those deities. We shall, therefore, consider that the plaintiff in the Court below abandoned her claim upon her own title, and was satisfied to rest the whole suit upon her right to recover possession of the disput...
Tag this Judgment!Ananta Vs. Ramabai
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!Honamma Vs. Timannabhat and anr.
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!Khandu Dubladas Vs. Tarachand Amarchand
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!Gurushidgavda BIn Rudragavda Vs. Rudragavdati Kom Dymangavda and ors.
Court : Mumbai
Reported in : (1877)ILR1Bom531
Michael Westropp, C.J.1. The Assistant Judge has misunderstood the case of Babaji Hari v. Ralaram Balled I.L.R. 1 Bom. 75, to which he refers, and the nature of this suit. This suit does not seek to obtain 'anything payable on the part of Government in respect of an office,' or even a declaration that the plaintiff is entitled to anything so payable, but seeks a declaration of the plaintiff's eligibility to officiate as patil of Lokur. Such a suit is not prohibited by Act XXIII of 1871, which, moreover, is an Act that should receive a strict construction as being in derogation of the right of the subject to resort to the ordinary Civil Courts: Ravji Narayan Mandlik v. The Mamlatdar of Ratnagiri (supra, p. 523). It was only so far as the plaintiff in Babaji Hari v. Rajaram Ballal I.L.R. 1 Bom. 75 sought a declaration that he was entitled to a share in allowances paid from the Government Treasury, that the High Court held that his civil suit was affected by Act XXIII of 1871. That suit w...
Tag this Judgment!Umabai Widow of Shankarrav Vs. Bhavu Padmanji
Court : Mumbai
Reported in : (1877)ILR1Bom557
Michael Westropp, C.J.1. This Court does not agree in the opinion of the District Judge that Hindus, though not born blind, are, if they become incurably blind, thereby rendered incapable of inheritance. See Murariji Gokaldas v. Parvatibai I.L.R. 1 Bom. 177 and Anunta v. Ramabai (supra, p. 554), in which latter case the incurable diseases, which incapacitate for inheritance, are mentioned. But, inasmuch as he has found as facts, that Padmanji and Bhavu were separate in estate, and that the house in dispute was purchased for Bhavu as his absolute property with funds supplied for the purpose by Kashi, his maternal grand-mother, the Court affirms the District Judge's decree with costs....
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