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Lalubhai Surchand Vs. Bai Amrit and ors.
Court : Mumbai
Reported in : (1878)ILR2Bom299
West, J.1. The facts found in this case are that Lalubhai Surchand agreed with Bai Amrit for the purchase from her of a house. He paid a portion of the purchase-money, rather less than one-fourth, and a sale-deed in his favour was executed by Amrit and her husband Ranchod Manor. This was dated 2nd July 1868; but, pending payment in full, possession was not delivered to Lalubhai, and on the same date a second conveyance for valuable consideration was made by Amrit and Ranchod to Tarachand, who received immediate possession. Amrit could then no longer give effect to her contract with Lalubhai, and she declined to receive the remainder of his purchase-money when he tendered it. Both deeds have been registered, and Lalubhai, charging Bai Amrit and Tarachand with fraud, seeks now to enforce the completion of the transaction with him by a delivery into his possession of the house that he purchased. The accusation of fraud is retorted by the defendants; but, on the facts found by the lower Co...
Tag this Judgment!Monohur Doss Vs. Mcnaghten
Court : Kolkata
Reported in : (1878)ILR3Cal232
Markby, J.1. In this case the plaintiff is a person who supplied seed to an indigo factory. While that seed was in the ground, the mortgagee of the owner of the factory took possession of it, and I assume that he also took the crop which was produced by the seed. The person who sold the seed is plaintiff in this suit, and he sues the mortgagee, Mr. McNaghten, and also the mortgagor, Mr. Pitzpatrick, to recover the value of the seed. Both the Courts below have held that the mortgagor is liable, but that the mortgagee is not. The plaintiff appeals.2. Now it is not necessary to advert to the exact terms of the plaint, as Mr. Bell, in arguing for the plaintiff, says, that he is not bound by the precise terms of the plaint, and has argued the general question whether, under these circumstances, the mortgagee in possession can be made liable for the price of the seed. I think he has failed to show that he can be made so liable.3. Before considering the Pull Bench decision that has been refer...
Tag this Judgment!Ramchandra Sakharam Vagh Vs. Sakharam Gopal Vagh
Court : Mumbai
Reported in : (1878)ILR2Bom346
Melvill, J.1. It appears from Exhibit No. 22 that a saranjam was granted by the Peishwa to the defendant's) father in 1801. It was resumed by the British Government in 1818, and, in lieu of it, a pension of Rs. 1,200 was granted to the defendant, half of which was to be continued to the second generation.2. The plaintiff is an adult legitimate son of the defendant, and it is found by the Courts below that he has been turned out of his father's house in consequence of family quarrels arising out of his father's second marriage. He now sues the defendant for Rs. 63, being the amount of necessary expenses incurred by him during the six months preceding the suit. He has received a certificate from the Collector, under Section 6 of Act XXIII of 1871, authorizing the civil Courts to entertain the suit. The parties are Brahmins, and the plaintiff alleges in his plaint, and the allegation is not contested in the defendant's written statement, that his father has not given him any education, or...
Tag this Judgment!Manohar Ganesh Vs. Bawa Ramcharandas and ors.
Court : Mumbai
Reported in : (1878)ILR2Bom219
Michael Westropp, C.J.1. It appears that in the lower Court the plaintiffs pleader contended that this suit falls, in respect of the Court fees properly payable upon the plaint, within Article 17, cl. iii of Schedule II of the Court; Fees' Act (VII of 1870), as being a suit 'to obtain a declaratory decree where no consequential relief is prayed,' and, therefore, only requiring a stamp of 10 rupees. Such a stamp is more than sufficient for a suit of the value of, Rs. 100. The First Class Subordinate Judge, however, decided that the plaint did not come within that article, but rather within Section 7, Clause 4, pl. (c), of the same Act, inasmuch as he was of opinion that the plaintiff not only sought a declaration of his right to take an account of the property and to inspect the Shavaks' (defendants') books, but also consequential relief, namely, production of the property dedicated to the idol, and that an account should be actually furnished to him from the books kept in the bhandar (...
Tag this Judgment!In Re: Murray, an Insolvent and Ex Parte Dwarkanath Mitter
Court : Kolkata
Reported in : (1878)ILR3Cal59
Kennedy, J.1. In this case I have no difficulty in determining that the Official Assignee ought not to make over the goods to the applicant, and to direct that he should defend any suit that may he brought against him. I am not so sure that the strongest ground of the assignee's claim is the reputed ownership clause, because so far as lean judge, on the facts, the insolvent was not only the reputed but the real owner. The allegation is, that the goods wore pledged to the applicant, who re-delivered them upon certain terms,--that is to say, that the insolvent should sell them; and, as I understood Mr. Appear to say, should apply the proceeds in liquidation of his debt. Now, as I take it, at common law, the interest of the pledge of goods ceased by his ceasing to have possession of them at least by his own consent, and the Contract Act does not seem to me to change this. It describes pledge as a bailment, and the natural inference is, that when the bailment comes to an end, the pledge do...
Tag this Judgment!Jugomohan Haldar Vs. Sarodamoyee Dossee
Court : Kolkata
Reported in : (1878)ILR3Cal149
Kennedy, J.1. In this case it seems that I have omitted to give judgment on a question as to the right of a mother on partition amongst her sons to obtain a share' as representative of a deceased son, as well as a share in her own right. This question was reserved at the conclusion of the judgment, and I thought I had already delivered judgment upon it; but I had certainly considered the question and come clearly to the conclusion that she is so entitled.2. The Dayabhaga, Chap. III, Section II, para. 31, says--'The equal participation of the mother with the brother takes effect if no separate property has been given to the woman, but if any has boon given she takes half a share.' I do not think that the share which a mother takes as representing her deceased son is separate property which has been given to her. The Sanskrit of this text I find in the Vyavastha, 1st edition, page 420, to be which Baboo Shama Churn translates, I presume correctly, on the husband and the rest not giving s...
Tag this Judgment!Joteeram Kolita Vs. Kudomee Dossee and ors.
Court : Kolkata
Reported in : (1878)ILR3Cal306
Kemp, J.1. (who, after stating the facts, continued as follows): In special appeal it is contended that the Judge committed an error in law in holding that in Assam a Hindu cannot divorce his wife, and that he has also erred in law in holding that a custom, if proved, cannot have the force of law so as to override the Hindu law; further, that if the Judge thought there was no evidence of the custom, he should have remanded the case to the first Court for the purpose of taking evidence on that point. We think that the Judge was right so far in holding that the Hindu law does not contemplate divorce; but we think that he was clearly wrong in holding, as he has done, broadly, that a custom, even if established, cannot override the general provisions of the Hindu law. There can be no doubt that the Hindu law has been affected in particular districts by particular usages, and these usages have hitherto been respected unless clearly repugnant to the principles of Hindu law; see page 387 of S...
Tag this Judgment!Kinmond Vs. Jackson and anr.
Court : Kolkata
Reported in : (1878)ILR3Cal17
Richard Garth, C.J.1. This was a suit for an injunction to restrain the defendants from infringing an invention of the plaintiff for the rolling of tea, leaf, the specification of which was filed, under the provisions of Act XV of 1859, on the 6th November, 1865; and the plaintiff also prayed for an account of the profits made by the defendants, and for damages.2. The question of infringement has virtually been decided by our judgment in the several rules obtained by the plaintiff on the one hand, and the defendant, W. Jackson, on the other, which was given on the 19th of August last. In the first of those rules we decided, that Jackson's invention, the specification of which was filed on the 25th of April, 1873, was substantially an imitation of Kinmond's; and it is admitted, that between that date and the commencement of this suit, the defendants have been making, using, and selling a number of machines in accordance with that specification. The parties have very properly consented, ...
Tag this Judgment!Adurmoni Deyi Vs. Chowdhry Sib NaraIn Kur
Court : Kolkata
Reported in : (1878)ILR3Cal1
Markby, J.1. The plaintiff in this case sued to recover possession of a mouza which ho alleged to be his ancestral property. He stated that the property had been sold to the defendant by his father in May 1862, that is twelve years, all but a very few days before this suit was brought; but that, as there was no necessity for the sale, it was void, and not binding on him, the plaintiff.2. The plaintiff claimed to belong to a family governed by the Mitakshara law. There was some dispute about this, but this point has been finally settled in favour of the plaintiff.3. It has also been argued that this property is not to be considered as ancestral, because, though it belonged to the grandfather of the plaintiff, the father of the plaintiff made a partition of the family property with his own brother, and the mouza in suit, when it fell to the share of the plaintiff's father, belonged to him absolutely as his separate property, and his son did not on his birth acquire any interest therein. ...
Tag this Judgment!Chatur Jagsi Vs. Tulsi
Court : Mumbai
Reported in : (1878)ILR2Bom230
Michael Westropp, C.J.1. The question raised in this case by the learned First Class Subordinate Judge has already been decided on the 20th of March 1877 in this Court by Melvill and Kemball, JJ., in Raghoji v. Abdul Karim I.L.R. 1 Bom. 590. A copy of the judgment in that case is herewith forwarded to the First Class Subordinate Judge. In addition to the cases mentioned in it, the observations of the Court in Tilakchand Hindumal v. Jitamal Sudaram 10 Bom. H.C. Rep. 206; as to the reason for upholding a promise to pay a debt barred by the Law of Limitation, may be referred to.2. Having come to the opinion that the plaintiff is not prevented by the Indian Limitation Act, 1871, Section 20(a), from maintaining a substantive action on the new notes (exhibits 3 and 4), his right to bring such an action being recognized by Section 25, Clause 3, of the Indian Contract Act, which is the later enactment, we must reverse the decree of the Subordinate Judge, and remand this cause for a new trial o...
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