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imperatrix Vs. Padmanabh Pai
Court : Mumbai
Reported in : (1878)ILR2Bom384
Melvill, J.1. Section 468 of the Code of Criminal Procedure requires that the sanction to a prosecution should be given by 'the Court before or against Which the offence was committed, or of some other Court to which such Court is subordinate.'2. The decision of the Sessions Court proceeded upon the ground that although, in certain executive matters, all Magistrates are subordinate to the Magistrate of the District, yet that such subordination is not of a judicial character, and that, as a Court, a Magistrate of the First Class is not subordinate to the Court of the Magistrate of the District, but to the Court to which appeals from the decisions of a Magistrate of the First Class ordinarily lie, i.e., to the Court of Session. 3. There is no doubt a good deal to be said in favour of the view adopted by the Sessions Judge. Section 5 of the Criminal Procedure Code divides the Criminal Courts in British India into four grades only, and one of these is the Court of the Magistrate of the Fir...
Tag this Judgment!Rangubai Vs. Bhagirthibai
Court : Mumbai
Reported in : (1878)ILR2Bom377
West, J.1. We are of opinion that it is not Within the competence of a wife, according to the Hindu law prevailing in this part of India, to give a son in adoption against the will, express or implied, of her husband, the father of that son. The principal authorities are quoted in the judgment of Sir M. Westropp, C.J., In Narayan v. Nana.7 Bom. H.C. Rep. 153, and Bashetiappa v. Shivlingappa 10 Bom. H.C. Rep. 268. There is a certain degree of ambiguity in the original passage of Manu (ch. IX, 168), arising from the use of singular nominatives with a disjunctive particle along with a verb in the dual; but the two principal commentators, Medhatithi and Kulluka, have both construed the passage as requiring the concurrence of both parents to a giving in adoption. According to Vashista, quoted in the Dattaka Chandrika, a woman is not either to give or to take in adoption without the assent of her husband; and though Dewandha Bhat urges that non-prohibition may constitute assent, he applies t...
Tag this Judgment!In Re: Petition of Eatansi Kalianji and Six ors.
Court : Mumbai
Reported in : (1878)ILR2Bom148
Michael Westropp, C.J.1. On the 1st of May 1876 a warrant of arrest, under Section 201 of the old Civil Procedure Code (Act VIII of 1859), was issued against Ratansi Kalianji pursuant to a Judge's order of the 29th April 1876, upon an application for execution of a decree of the 27th April 1876. Ratansi Kalianji was arrested upon the 30th of October 1876, was brought before a Judge in Chamber on the 31st October 1876, and then finally committed by the Judge, 'until he (Ratansi Kalianji) satisfy the amount of the decree passed against (him) the said Ratansi Kalianji in the above suit.' Then followed in the same order the usual direction, under Section 278 of Act VIII of 1859, that the plaintiffs should pay to him subsistence allowance at the rate of 4 annas per diem, by monthly payments in advance. The receipts indorsed on the Judge's order by Mr. Lake, for the superintendent of the gaol, and by the sheriff, and the certificate of the latter, show that the detention of the prisoner Rata...
Tag this Judgment!Thakur Shere Bahadur Singh Vs. ThakuraIn Dariao Kuar
Court : Kolkata
Reported in : (1878)ILR3Cal645
R.P. Collier, J.1. This case has not boon tried in a manner altogether satisfactory. Without, however, referring to the previous proceedings, their Lordships think it enough to advert to the final judgment appealed against. The learned Commissioner gave his judgment in these terms: 'Basant Singh died during the Rebellion of 1857, and the alleged adoption of the plaintiff is said to have taken place in April 1858. Before this the general confiscation of the land of Oudh had been declared by the British Government, and it was only in May 1858 that a summary settlement was made with the defendant. At the time, therefore, of the alleged adoption, the title to the estate vested neither in the deceased Basant Singh nor in the plaintiff, nor in the defendant, but in the British Government. Even if it be allowed that there was adoption of plaintiff', and that this, in accordance with Hindu law, conferred upon him all the right of a posthumous son of Basant Singh, still neither he nor Basant Si...
Tag this Judgment!Khando Narayan Kulkarni Vs. Apaji Sadashiv Kulkarni
Court : Mumbai
Reported in : (1878)ILR2Bom370
West, J.1. In this case the owner of an eighth of a kulkarni's vatan sues the owner of another eighth share for a declaration of his right to officiate as the sole representative of the particular branch of the vatandar family to which they both belong. The lower Courts have rejected the claim as one of which their cognizance was barred by Bombay Act III of 1874. In special appeal it is urged that the jurisdiction of the ordinary civil Courts over such cases, having been previously established and exercised in numerous decisions, could not be withdrawn except by an express enactment which the Vatandars Act does not contain. Though the Collector may have full power, it is argued, to determine who shall officiate and even who shall be recognized as amongst the class of those capable of officiating, yet, as to the abstract rights of the sharers inter se, the civil Courts may pronounce still as they did formerly before the passing of the new Act.2. The plaintiff claims a right to perform t...
Tag this Judgment!Ramchandra Chintaman Vs. Kalu Raju and anr.
Court : Mumbai
Reported in : (1878)ILR2Bom362
Michael Westropp, C.J.1. We are of opinion that the agreement was executed without consideration, and thus being a 'nudum pactum,' the suit founded upon it is unsustainable. The plaintiff, having accepted a vakalatnama from the defendants upwards of two months previously to the execution of the agreement, was already bound to render his best services as a pleader to them in suit No. 723 of 1875, and had, as appears from the agreement itself, accepted that vakalatnama upon the terms of receiving him usual fee as a pleader. It must not, however, be supposed that we regard the appearance of that circumstance on the face of the agreement as a matter of importance. It is one which, in the absence of any express stipulation to the contrary, the law would imply when a pleader is retained by a party to a suit. There was no fresh consideration proceeding from the plaintiff when he obtained the agreement of the 16th October; He could not be more firmly bound by it to render to the defendants his...
Tag this Judgment!Kabir Valad Ramjan Vs. Mahadu Valad Shiwaji, a Minor, by His Administr ...
Court : Mumbai
Reported in : (1878)ILR2Bom360
1. The Court concurs in the opinion of the Second Class Subordinate Judge of Jalgaon, that the action brought to recover costs of the proceedings, under Act XX of 1864, will not lie, and was rightly dismissed with costs....
Tag this Judgment!Kali Kishore Roy Vs. Dhununjoy Roy
Court : Kolkata
Reported in : (1878)ILR3Cal228
Richard Garth, C.J.1. A preliminary objection has been taken to the hearing of this appeal, that as the present appellant, who was the respondent in the Court below, did not then appear, he is not entitled to be heard in this Court; and Section 119 of the Code of Civil Procedure has been relied upon as an authority for that position. No case showing that Section 119 applies to such a case as the present has been cited; and looking at the language of the section, it appears to us to apply only to the case of a defendant who does not appear in the Court of first instance, and not to that of a respondent who does not appear in a lower Court of appeal. Moreover we find, that a Full Bench of the Bombay High Court, in the case of Ramshet v. Balkrishna 6 Bom. H.C. Rep. A.C. 161, has decided, that a special appeal lies where the respondent did not appear in the first appellate Court, and that Section 119 does not apply to such a case; and we also find, that in two cases before this Court--one ...
Tag this Judgment!Kachubhai BIn Gulabchand and anr. Vs. Krishnabai Kom Babaji
Court : Mumbai
Reported in : (1878)ILR2Bom635
Michael Westropp, C.J.1. In this case the plaintiff Krishnabai seeks to eject the defendant Harakchand from a house which he purchased under a decree for sale thereof in a suit brought by the defendant Kachubhai on a mortgage, dated 27th August 1872, executed to him by Chimnaji, a brother of the plaintiff's deceased husband, Babaji. The plaintiff claimed title through Babaji, to whom she alleged that, on a partition anterior to the mortgage, the house had been allotted. In support of that case she produced a deed of partition, dated the 19th March 1867, which appears to be a genuine instrument, but is unregistered. The Subordinate Judge and the District Judge concur in holding that deed to be inadmissible in evidence, and that secondary evidence of the partition is excluded by Section 91 of the Indian Evidence Act (I of 1872). The deed speaks of the bulk of the family property as having been divided two or three years previously to its date, but recites that there remained undivided th...
Tag this Judgment!Sham Chand Giree Vs. Madhub Chunder Giree
Court : Kolkata
Reported in : (1878)ILR3Cal244
Markby, J.1. In this case the plaintiff sued to recover possession of certain property under Section 15, Act XIV of 1859 q.v. supra Cal. p. 245. The District Judge gave the plaintiff a decree. The defendant then applied to this Court to set aside that decree under the powers of general superintendence conferred upon it by Section 15 of 24 and 25 Vict., c. 104. Upon that application a rule was issued, calling upon the plaintiff to show cause why the decision of the District Judge should not be set aside, upon the ground that the defendant was entitled to have a decision upon the question whether or no possession of the plaintiff was in law the possession of the defendant, and whether that being so, the plaintiff was estopped from setting up an adverse title.2. I am certainly not prepared to say that I agree altogether with the view of the law taken by the District Judge. It would seem to go to the length of laying down that a mere agent, who was put into possession of property by his em...
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