Court : Mumbai
Reported in : (1877)ILR1Bom45
Michael Westropp, C.J.1. The Assistant Judge, in speaking of alleged payments by the defendant for which he claims credit, says: 'Where an instalment bond contained a stipulation that payment of the instalments should be indorsed upon it, and that in the event of litigation, any allegation of other modes of settlement should be discredited the Sadr Adalat rejected a written release, filed by the defendant, because it was not indorsed on the bond (S.A. No. 2 of 1855; Colebrooke's Digest Bk. I., pl. 285, 286). So here, too, I shall discredit the oral evidence of these witnesses as to payments having been made in satisfaction of this bond, and only believe the evidence of the receipt. I think it the only proper course to pursue. The lower Court found the payments proved, not on the evidence of the witnesses, but because the plaintiff did not produce his account books, but the account books were asked for, not on this point, but on the point as to whether, when the bond No. 3 was executed,...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom23
Michael Westropp, C.J.1. The facts of this case are very clearly stated in the judgment of the Court below by Green, J., and we agree with him in his decision on those facts. We must consider that several matters combine to make up a cause of action, and that, in such a case as the present, the dishonour of a bill or hundi by the drawee is a part of the cause of action of the holder against the indorser. It has been held that notice of dishonour is a material part of the cause of action against an indorser, and that being so it seems to us to follow as a matter of course that the dishonour itself must also be a material part of that cause of action.2. We also consider that the custom sworn to by the plaintiff's witnesses is a reasonable one, and in accordance with the law merchant. We must regard the plaintiff as holder for value of the hundi sued on. It appears that there was a large balance due to him from Popsang and on receipt of the hundi, viz., on the 3rd June, he entered the amo...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom50
1. We do not think the conviction of dacoity can be sustained. That was a substantive offence completed as soon as perpetrated at Velanpor, although, had Velanpor been in British territory, the subsequent acts in the process of taking away the property might, in the legal sense as they would have the same legal character, have coalesced with the first and principal one so as to give jurisdiction under Section 67 of the Code of Criminal Procedure. But we think the conviction may be altered to one of retaining stolen property known to have been obtained by dacoity (Indian Penal Code, Section 412), and the sentences upheld. The retaining is included in the more comprehensive charge viewed as an abstract accusation of an act attended with a certain intent or consciousness, and the conception of dacoity being independent of the place where it was committed suffices to cover what is embraced within it, though the latter was an act done in British territory. The retaining was in British terri...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal175
Jackson, J.1. In this case, the suit was brought for the purpose of setting aside the sale of 12-anna share of a putni tenure held by the defaulter. A great number of objections, some of a frivolous kind, and some of an unjustifiable kind, have been brought forward in appeal, but the only one which deserves notice or which was seriously pressed is that where it is contended that the notice in this case does not appear to have been published before the 15th Bysack, the sale having taken place on the 3rd Joisto following. Now, it is to be observed that the Legislature, in passing Regulation VIII of 1819, for just and equitable purposes, prescribed a variety of forms required to be gone through by zemindars, on applying for the sale of a putni tenure for arrears, accrued due thereon, some part of the procedure being carried out by officers of the Collector's establishment: and one of the matters prescribed by Section 8, Clause 2, is that the Collector should be satisfied of the service of...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom52
Charles Sargent, J.1. This matter comes before us on a case stated for the opinion of the High Court under Section 35 of Act IX of 1850, and arising out of an action brought by the plaintiff in the Small Causes Court, to recover from the defendants the sum of Rs. 200 as damages for the forcible and illegal removal of the plaintiff from one of the defendants' carriages at Dhandu station, and for illegal detention at the aforesaid station, and for illegal refusal of the defendants to allow the plaintiff to proceed in the train to Bombay. At the hearing of the cause, the Fourth Judge of the Court was of opinion that the defendants had committed the several illegal acts with which they were charged, and passed judgment for the plaintiff' for the full amount of his claim and costs. A rule nisi was obtained by the defendants for a new trial, and came on for argument before the First and Fourth Judges of the Court, who were divided in their opinion,--the First Judge being of opinion that ther...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom70
West, J.1. The Assistant Judge has held the mortgagee in possession in this case not responsible for the land revenue of the fields held by him under the mortgage. The plaintiff, as Kabulayatdar Khot, is recognized by the Assistant Judge as entitled to demand from Dharekaris the amount of assessment on their dhara; but Lakshmibai, the mortgagor, being owner of the dhara in question, and, therefore, occupant according to the Bombay Survey Act I of 1865, the Assistant Judge has held that she, and she alone, is responsible for the assessment. That she is responsible for it, is true; but it does not follow that she is solely responsible, and Regulation XVII of 1827, Section 5, enables the Government, and, therefore, the holder of the rights of Government, on failure of the superior holder to pay the revenue, to realize it from the inferior holder, a position which, in the sense of the Regulation, is held in this case by the mortgagee.2. It is obvious that, if the occupant only could be mad...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal109
Macpherson, J.1. The plea of minority having been disposed of by the decision of the Bull Bench, it remains for us to consider what amount the plaintiff is entitled to recover. Phear, J., being of opinion that, even supposing the defedant to have attained the age of majority at sixteen, the bargain was most unconscionable and unfair, and one which no Court of Equity ought to enforce, declared that the plaintiff could in no event get a decree for more than the sum actually paid by him to the defendant, with interest at the rate of 6 per cent, per annum up to the date of filing the plaint. Disallowing the three sums of Rs. 450 retained for interest, Rs. 100 paid to Baboo Romanath Law, the Attorney, for having in his character of solicitor for the plaintiff, advised the plaintiff that the defendant was legally of age, and Rs. 60 for office or amlah expenses, Phear, J., declared that the balance (which would be Rs. 4,390) was the amount paid by the plaintiff to the defendant.2. For the app...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal123
Macpherson, J.1. We think that in this case the Munsif was right in holding that the proceedings throughout have been without jurisdiction, because the suit is of a class cognizable by the Small Cause Court of Rampore Beauleah, and is therefore one which, under Section 12, Act XI of 1865, could not be heard or 'determined in any other Court having jurisdiction within the local limits of the jurisdiction' of that Small Cause Court.2. The suit is for a balance claimed to be due on account of rents of the plaintiffs' zemindaris collected by the father of the defendants. It is a suit in which money is claimed as due on a contract within the meaning of Section 6 of Act XI of 1865; and therefore is a suit cognizable by the Small Cause Court, as the amount claimed did not exceed Rs. 500; and it is none the less cognizable by the Small Cause Court, because it may have been necessary to go into the accounts of both parties to see whether the amount claimed is really due or not. Section 6 conter...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom59
West, J.1. The application in this case was presented for execution of a decree, the last prior application for execution of which had been made in February 1868. Upon that earlier order, partial execution had been obtained and proceedings sufficient apparently to bar limitation under the Act of 1859, had been going on till 30th September 1871. The application made to the Court on that day was not one which, according to the case of Gouree Sunkur Tribedee v. Arman Ali Chowdhry 21 Cal. W.R. 309 Civ. Rul), could bar limitation under Act IX of 1871. It was, indeed, merely a request or suggestion that the Collector should be directed to carry out a direction sent to him in 1868 in a particular way; but if it had been an application of a kind which in itself could serve as a bar to limitation, it was then already too late on the day when it was made, which was more than three years after February 1868, and, being thus inadmissible, could not mark a point of time from which a fresh period of...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom64
1. The accusation made against the accused in this case constituted it a warrant-case falling under the provisions of Section 213 et seq. of the Code of Criminal Procedure. The Magistrate, Mr. Middleton, after an arrangement had been come to between the parties, divided the property between them and dismissed the complaint. By 'dismiss the case' we understand the Magistrate to have meant the same thing as is indicated by Section 215 of the Code of Criminal Procedure, where it says that the Magistrate, if he finds that no offence has been proved against the accused person, shall discharge him.' 'Dismissal of a complaint' is a phrase properly applicable only to a summons case under Chapter XVI of the Code, and incapable of being applied, as Section 212 shows, to any complaint, 'except in so far as it refers to a summons case.' The provisions of Section 215 are highly useful in many cases. They enable a Magistrate, when circumstances make it expedient, to dispose of an accusation without ...
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