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In Re: the Fleming Spinning and Weaving Company (Limited) in Liquidati ...
Court : Mumbai
Reported in : (1883)ILR7Bom494
West, J.1. We have considered the points in this case in the interval since it was first argued, and we think that no object would be gained by our reserving our judgment.2. There are two general considerations which it is necessary to bear in mind in dealing with a question of this sort. The first is that in the construction of such an Act as this--an Act concerned with the creation and carrying on of joint shock companies, an institution which has an English origin, and takes its shape from English business ways and habits--we must be guided, as far as possible, by the current of English decisions. The second consideration is that, while adhering generally to the principles of construction laid down from time to time by English Courts of law on the various parts of these Acts, we should not forget that such enactments when introduced into this country have to be applied to a people for the most part unfamiliar with our business ways and experience, as well as with our language,--a co...
Tag this Judgment!Narayan Venkoba Vs. Pandurang Kamat
Court : Mumbai
Reported in : (1883)ILR7Bom526
West, J.1. For the appellant is this case the objection has been taken that the tacking of a later to an earlier mortgage was improperly allowed as against one of intermediate date. For the respondent it is urged that the suit having been brought for ejectment of the mortgagee in possession under the first and third mortgages, the decree now sought to enforce redemption or foreclosure cannot properly be made in such a case. We will deal with the latter question first.2. The plaintiff, having succeeded in a suit against the original Mortgagor, found he could not obtain possession under his decree by reason of the defendant's occupying the mortgaged house under two other mortgages. He sued him for possession until his mortgage money should be paid with damages for his exclusion and mesne profits during the pendency of the suit. The plaintiff denied both the mortgages of the defendant. The defendant denied the plaintiff's mortgage, and insisted that he must, at any rate, be paid the amoun...
Tag this Judgment!Govinda Dass Vs. Dulall Dass and ors.
Court : Kolkata
Reported in : (1884)ILR10Cal67
Prinsep and O'Kinealy, JJ.1. We think that the Magistrate was not competent in this case--a warrant case not compoundable--to dismiss it because the complainant was absent.2. It appears that on the day first fixed for the trial the complainant attended with his witnesses, but in consequence of the inability of the accused, a Police officer, to attend, it was postponed, the complainant and witnesses being bound over to attend on the day to which the trial had been postponed. On that day the accused alone appeared, and the Magistrate dismissed the case. Having regard to the terms of Section 259 we are of opinion that in warrant cases not coming within that section, except under the last clause of Section 253, which is not applicable, a Magistrate is not competent to pass an order of dismissal, or discharge in consequence of the absence of the complainant. The Magistrate should, in the case before us, have admitted the accused to bail, and as the complainant and his witnesses had given re...
Tag this Judgment!Empress Vs. Paramananda and ors.
Court : Kolkata
Reported in : (1884)ILR10Cal85
Prinsep and O'Kinealy, JJ.1. The prisoner has been convicted under Section 304 of the Code of Criminal Procedure by an officer invested with the special powers described in Sections 30 and 34, of the Code of Criminal Procedure.2. The Sessions Judge, to whom the sentence has been submitted for confirmation, has referred the case to this Court, as a Court of Revision, to have these proceedings set aside, and the Deputy Commissioner directed to commit the case for trial in this Court.3. Section 209 empowers a Magistrate holding an enquiry to try the case himself if he thinks that only an offence within his jurisdiction has been committed. This is the course which we understand the Deputy Commissioner has taken, and we cannot, therefore, hold that it is not authorised by law, or that he has acted without jurisdiction merely because there is some evidence which, if believed, would substantiate the charge of murder an offence beyond his jurisdiction. At the same time we think that this cours...
Tag this Judgment!Thurga Ramachandra Rau Vs. Appayya
Court : Chennai
Reported in : (1883)ILR7Mad128
Kindersley, J.1. The plaintiff, a srotriyamdar, has brought this suit for the dismissal of the karnam of his villages, on the ground that the defendant (karnam) had been appointed by him, but did not conduct his duties properly, nor explain his accounts properly to plaintiff, and that defendant spoke insultingly to the plaintiff.2. The District Munsif made a decree dismissing the defendant from the office of karnam with costs. The District Court, however, reversed that decree, the Judge being of opinion that the provisions of Regulation XXV of 1802 did not apply to this case.3. This second appeal has been brought on the ground that under the regulations the Civil Courts had the power to dismiss the karnams, and that the defendant had received his appointment from the plaintiff. The object of Regulation XXV of 1802 was to settle permanently the peshkash due to Government by certain zamindars and other landholders, who thereupon became entitled to receive from Government a sanad-i-milkiy...
Tag this Judgment!Radhakisan Hakumji Vs. Balvant Ramji
Court : Mumbai
Reported in : (1883)ILR7Bom530
West, J.1. We are of opinion that the proviso in Clause (c) of Section 266 of the Code of Civil Procedure is to be construed by the terms of the positive enactment to which it is annexed. An exception is meaningless unless it, is an exception of something otherwise included in the rule. The rule makes houses and buildings subject to attachment in execution: the exception excludes 'the materials of houses and other buildings belonging to, and occupied by, agriculturists.' The expression made use of in the latter clause is plainly meant to exempt a particular class of houses and buildings from attachment,--not merely loose materials of buildings, and those only. In some instances the sites of houses may be held on sufferance, or there may be other means of forcing a tenant to remove or pull down his hut: the clause saves a decree-holder from the temptation he might, be under of putting undue pressure, or getting it put, on the tenant thus situated. If ho cannot attach even the materials,...
Tag this Judgment!Ladu Chimaji Vs. Babaji Khanduji
Court : Mumbai
Reported in : (1883)ILR7Bom532
West, J.1. The applicant in this case, being the mortgagor of property of the defendant, sued to enforce redemption on the terms provided by the Dekkhan Agriculturists' Relief Act. The account was made up as that Act directs, and the mortgagor was directed to pay the sum found to be due within six months, or to be foreclosed for ever against redemption. He failed to satisfy the condition; and the property thus, according to the ordinary practice of the Mofussil, vested in the mortgagee. The second order--which, according to the practice of the English Equity Courts, is applied for after the expiration of the time prescribed for redemption--is made as of course on such application Fisher on Mortgages (1876), . 1771. It appears to be contemplated by the Form No. 129 appended to the Code of Civil Procedure, but it is not prescribed in the Act itself. In this Presidency it has not been used. The mortgage called lahan-gahan, stipulates for transfer of the ownership to the mortgagee on non-p...
Tag this Judgment!Erakshah Dhanjiseth Vs. Adarji Dorabji and anr.
Court : Mumbai
Reported in : (1883)ILR7Bom535
West, J.1. We are of opinion that, whether the relief sought under Section 265 of Act IX of 1872 be sought by an application called a plaint, or by one called a petition, the nature of the remedy is not affected. Nor is the nature of the inquiry requisite for an adjudication affected by the title of the demand made for it. This demand is essentially a plaint, and must be paid for in fees at the same rate as any other plaint for, an account extend| ins to a like amount of valuation....
Tag this Judgment!Nurbibi Vs. Husen Lal
Court : Mumbai
Reported in : (1883)ILR7Bom537
West, J.1. The obligation of a father to support his child is one imposed on him by the law of the family in some form or other, either of civil or criminal liability see Bazeley v. Forder L.R. 3. Q.B. 564 under every civilized system. If the father fails to support a child, it is the mother's duty to nurture it if she can. Whether she can recover the amount necessary for this purpose from the father according to the Mahomedan law is a question that the court will have to try. But the father's obligation to recoup the mother and to provide money for the future maintenance of his child by a wife whom he has divorced during her pregnancy, is one which, if it subsists, does not arise from contract, but is imposed on the father by the law, without any bargain or assent on his part. The suit, therefore, in this case is not one cognizable by a small Cause Court, but by the ordinary Civil Court, and the order for returning the plaint made by the Subordinate Judge should be set aside, and the ...
Tag this Judgment!Ramlinga Khanapure Vs. Viru Pakshi Khanapuri
Court : Mumbai
Reported in : (1883)ILR7Bom538
West, J.1. The agreement between the brothers Ramlinga and Virupakshi, to the effect that two houses were for ever to be held undivided, was one inconsistent with the Hindu law to which they were subject--Rajender Dutt v. Sham Chund Mitter I.L.R. 6 cal. 106; Anantha Tirtha Chariar v. Nagamuthu Ambalagaren I.L.R. 4 Mad. 200; Ashutosh Dutt v. Doorga Churn Chatterjee L. R. 6 I A. 182. That law gives to a member of a united family a right to demand partition from his co-members The division of sacra takes place when it is lawfully claimed, and of this division of the sacra a division of the property, or of the interests in the property, is a necessary accompaniment to have been ruled more than once that, by an agreement not to divide, a Hindu family could not tie up their family estate so as to deprive a purchaser of one of the shares ot a right to enforce partition--Anand Chandra Ghose v. Prankisto dutt 3 B L.R. 14 O.C.J.; Rajendur Dutt v. Sham Chunder Mitter I.L.R. 6 Cal. 106. But the pu...
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