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Balvantrav Oze Vs. Ganpatrav Jadhav and ors.
Court : Mumbai
Reported in : (1883)ILR7Bom336
West, J.1. In this case we think that the District Court has misconstrued the document No. 101. Properly interpreted that document does not imply that defendant No. 1 was in possession of the property mortgaged by him to the plaintiff, but that he was managing it for the plaintiff, or rather helping the plaintiff to manage it, as he was bound to do by the terms of the mortgage. This implies a possession by the mortgagee. The difference is important in this respect, that a mortgagor left in possession, though he would not as against his mortgagee have any right to deteriorate the property below the value which it had when mortgaged, might dispose of the annual felling or cutting in any way which would be consistent with good management (Fisher on Mortgages, 572). It is not contended in this case that the sale to defendant No. 2 was destructive of the estate so as to impair the security. As, then, the mortgagor in possession might properly sell, so a purchaser might properly buy, and sho...
Tag this Judgment!Shiva Nathaji Vs. Joma Kashinath and Two ors.
Court : Mumbai
Reported in : (1883)ILR7Bom341
West, J.1. In the present case the question referred for the decision of the Full Bench is as follows:2. Whether the High Court should exercise its extraordinary jurisdiction under Section 622 of the Code of Civil Procedure, or otherwise on behalf of persons who feel themselves aggrieved by orders passed by Courts below in cases, such as the present, in which it appears the law has specifically prescribed another remedy, by suit or otherwise? E.g.--Parties considering themselves aggrieved by orders passed under Sections 280, 281, or 282 may, under Section 283, institute a suit. Instead of filing, a suit, are they entitled to ask the High Court to exercise its extraordinary jurisdiction and set aside the order? The decisions on the point conflict, and we have, therefore, made the reference.3. The matter is one of practical importance, as is shown by the frequency with which it comes up in the Court. That it is one of some difficulty is proved by the differences of opinion which have led...
Tag this Judgment!Seth Mulchand Badharsha Deceased His Heirs Ghelabhai Mulchand and anr. ...
Court : Mumbai
Reported in : (1883)ILR7Bom491
West, J.1. The testator in this case, having no sons, bequeathed his shop to his widows, one of whom survives. As there was no co-owner with him of the property, he could have given it, and might, therefore, bequeath it to a stranger with as full ownership as he had himself, and with the usual incidents of ownership, amongst which is the power of alienation. In the case of the widow, however, Mr. Telang refers to chapter IV, Section 10, para. 9, of the Vayav. Mayukha, as preventing the alienation of immoveable property given by a husband to His wife, and as equally preventing the widow's alienation of property bequeathed by her husband. That bequests stand substantially on the same footing as gifts was finally ruled by the Tagore Case; but the case referred to by Mr. Branson shows that the Hindu law has been construed as allowing a gift of full ownership with power of disposal to a wife and in the form of bequest to a widow as well as to a stranger. The Smriti passage in the Mayukha (t...
Tag this Judgment!Mudvirapa Kulkarni Vs. Fakir Apa Kenardi and anr.
Court : Mumbai
Reported in : (1883)ILR7Bom427
West, J.1. The action of the defendant, on which the present suit is grounded, began and ended with his complaint to the Magistrate. The subsequent proceedings were those of the Magistrate himself. The defendant could not escape all responsibility for them as a basis on which damages were to be estimated, since, even in a case originating in negligence, 'the person guilty of it is equally liable for its consequences, whether he could have foreseen them or not' Smith v. L. & S.W. Ry. Co. L.R. 6 C.P. 21 much more than for the consequences, at least the natural consequences, of a wilful wrong. But these would be taken into computation by way of better enabling the Court to estimate the proper compensation for an act, which in itself could not be changed as to time by the longer or shorter series of results traceable to it. In the case of a prosecution the conduct of the prosecutor is looked on as a continuous act prolonged until the close of the case, and limitation is to be computed from...
Tag this Judgment!Shri Shailapa Hadlapa Vs. Balapa Lokanna and ors.
Court : Mumbai
Reported in : (1883)ILR7Bom446
West, J.1. When the bond in this case fell due, the creditor might either have sued for the whole sum due within six years (it being a registered instrument), or, as the bond provided that, in, default of payment, the principal sum should be added to an existing mortgage-debt, the creditor might prefer that it should be thus secured, and forego his right to immediate repayment. All that could be said was that he could not take advantage of both alternatives. Now, when he sued for three-years' arrears of interest, as provided in the second branch of the engagement, without suing for the principal then long overdue, he conclusively elected to take advantage of the second alternative engagement, and he could then no longer sue,--i., e., he, had no longer a cause of action--on the first alternative. He had made a conclusive election of one out of the two contracts embraced in the bond. He got a decree, which implied that the obligation was reduced to this, that the interest should be paid ...
Tag this Judgment!Kondaji Bagaji and ors. Vs. Anau Widow of Ranuji and anr.
Court : Mumbai
Reported in : (1883)ILR7Bom448
West, J.1. The original mortgage in this case was made in A.D. 1784. By the document No. 39, which the Subordinate Judge at first pronounced a forgery, but has now found genuine, the mortgage was recognized as existing in 1824 Again, in 1857, the document No. 18 refers to the mortgage as existing, and this document, too, overlooked in the first investigation, or not referred to in the judgment, the Subordinate Judge has now held proved. Thus, the mortgage, though it would, according to its own literal terms, have become a sale in 1794, has been kept alive by the subsequent acknowledgments, so as to prevent any bar by limitation of the present suit for redemption.2. The sum originally secured by the mortgage was Rs. 166. By the document No. 39, Bagaji, father of Kondaji, a defendant in this case, not only acknowledges the existence of a mortgage, but also a reduction of the amount due on it from Rs. 166 to Rs. 24. The plaintiffs, Ranuji's widows, brought this suit to redeem the mortgage...
Tag this Judgment!Arunachala Chetti Vs. Munisami Mudali and ors.
Court : Chennai
Reported in : (1883)ILR7Mad39
Muttusami Ayyar and Hutchins, JJ.1. We think that the Lower Courts were right in throwing the burden of proof on the plaintiff. It has been found that the mortgage was not executed to secure the payment of an antecedent debt. If the plaintiff had joined the sons in his suit against the father, he would have had to establish the liability of their shares, and his position cannot be improved by obtaining a decree against the father alone. The sons subsequently brought a suit for partition, pending which the property was attached and their shares released.2. We dismiss the second appeal with costs....
Tag this Judgment!Pursuottam Talvar Vs. Mudkangavda Shidangavda
Court : Mumbai
Reported in : (1883)ILR7Bom420
West, J.1. The lands in this case, as the District Judge has found, 'pertain to a talvar or shetsanadi vatan, and it is admit ted on both sides that the last owner of them was one Lenkya' from whom Mudkangavda took a lease in 1866. Now, according to Regulation XVI of 1827, Sections 19 and 20, as construed by Act XI of 1843, Section 15, the shetsanadis, who from time to time held the vatan in question in succession, were hereditary district or village officers. The land being held, and entered in the Government account, at a fraction of the full assessment was, as to the residue of the interest in it, assigned as remuneration for the duties to be performed by the functionary. Lenkya became the sole occupant of the office, and from that moment the emoluments annexed to it became inalienable under the provision of Section 20 of the regulation. By his lease, therefore, which is a partial alienation, Mudkangavda acquired no title at all. It would be directly opposed to the regulation.2. Whe...
Tag this Judgment!Gade Chellapilla Rau Pantulu Vs. Gade Balaramakrishnama Pantulu
Court : Chennai
Reported in : (1883)ILR6Mad424
Kindersley, J.1. Plaintiff and defendant are undivided brothers. Another brother's widow had obtained a decree for maintenance against both. She attached the house in which plaintiff was residing, and plaintiff thereupon paid the whole sum due to her, and now sues defendant for contribution. The District Munsif has given plaintiff a decree subject to our opinion on the question: 'Whether a contribution suit, under the circumstances alleged, can lie in a Small Cause Court? '2. As to the general question the decision in Govinda Muneya Tiruyan v. Bapu 5 M.H.C.R. 200 is conclusive. If another High Court has taken a different view, that would not justify the reference, because the District Munsif is bound to follow the law laid down by this Court.3. It is settled, therefore, that a suit for contribution may be brought before a Small Cause Court. But in the particular circumstances of this case, we think, that the suit could not be sustained, and ought to have been dismissed. The relations o...
Tag this Judgment!In Re: the Indian Trustees and Mortgagees Act Xxviii of 1866; in Re: G ...
Court : Mumbai
Reported in : (1883)ILR7Bom381
Latham, J.1. The point is one of considerable importance', and I will take time to consider it2. I have considered the petition; and, looking to the nature of the point at issue, I think that it would not be right or proper for me, on a proceeding of this character, to give any opinion on it. I think it is no part of the duty of a Judge, under Section 43 of the Trustees and Mortgagees' Act, to give any opinion on a point on the decision of which may depend questions of right or title; more especially as, if the opinion were given, there is nothing in that section, or elsewhere in the Act, making it obligatory on, the Administrator General to act in accordance with it, or on the administrator of the domicile to accept it. The questions arising in the administration contemplated by Section 43 are not questions of the character of the one on which I am asked to express my opinion here. That is clear from the English authorities on the almost identical provisions contained in Section 30 of...
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