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R.S. Joshi Vs. L.B. Joshi
Court : Mumbai
Reported in : (1878)ILR2Bom650
West, J.1. The mortgage having been executed by three senior members of a joint family, the remaining member of which had disappeared, and setting forth a ground of necessity, was presumably a valid transaction, Nothing has been adduced, in the way of evidence, to overthrow that presumption.2. The sale of the one-sixth share belonging to Parashram, the absent member was subject to the lien thus created.3. The purchase of that share by the mortgagee's son, and his sale of it to the respondent's father, did not disturb this lien. The mortgage was registered, and the father, as that important transaction shows, was managing the family affairs. If he could be identified with his son, yet the sale-deed to the respondent's father sets forth distinctly the origin of the vendor's title. It was a purchase of a share, and this should have put the new purchaser upon inquiry.4. The mere fact that, under such circumstances, the mortgagee's son bought and sold a share in the property mortgaged witho...
Tag this Judgment!Maseyk Vs. Fergusson and ors.
Court : Kolkata
Reported in : (1879)ILR4Cal304
Pontifex, J.1. In this case the plaintiff claims as upon an intestacy as one of the next-of-kin of H. Section Maseyk, alleging that the residuary gift under his will is void for remoteness, in consequence of the Succession Act having confined the period within which a legacy is to vest to a life in being and eighteen years after.2. Of course if I could not dispose of this case on the construction of the will, it would be necessary to raise an issue as to the domicile of the testator's brothers. But it seems to me that I may now dispose of the case on the construction of the will.3. The plaintiff insists that under the second clause of the will no share vests in any child of the testator's brothers until he or she attains twenty-one years. The contention is, that the residuary gift in the will is in the direction to pay or distribute at twenty-one, or, in other words, that the only direction to pay is that in which the element of time is mentioned. In this case, if governed by the Succe...
Tag this Judgment!Brojokishore Sen and ors. Vs. Mahomed Elahee Buksh and ors.
Court : Kolkata
Reported in : (1879)ILR4Cal497
1. The Judgment in this case simply follows the decision in the cases of Jay Mangal Sing v. Lal Rang Pal Sing (4 B.L.R., App., 53); Khasro Mandar v. Premlal (9 B.L.R., App., 41); and Luchmeeput Singh Bahadoor v. Raj Coomaree Dabee (23 W.R., 275)....
Tag this Judgment!The Empress Vs. Ashootosh Chuckerbutty and ors.
Court : Kolkata
Reported in : (1879)ILR4Cal483
Richard Garth, C.J.1. I am of opinion that under Section 30 the confession of a prisoner which affects himself and some other prisoner charged with the same offence, becomes, when duly proved, admissible in evidence as against both prisoners, and must he so dealt with by the Court. When this confession has been duly proved, it may, by the express language of the section, be taken into consideration against either prisoner; and I do not see in what other way it can he taken into consideration than as evidence. There is no provision in the section by which the confession is to be receivable against one prisoner in one way, and against the other prisoner in another way. But although the section does, in my opinion, make the confession admissible in evidence against either prisoner, the weight which ought to be attached to such evidence, and the question, whether, taken by itself, it is sufficient in point of law to justify a conviction, is a question for the Judge who tries the case.2. A ...
Tag this Judgment!In Re: Muse Ali Adam
Court : Mumbai
Reported in : (1878)ILR2Bom653
Kemball, J.1. The Court concurs with the opinion of the Magistrate of the District. The offence charged was one of 'contempt of the lawful authority of a public servant,' and no proceedings could have been instituted against the offender without the sanction of the Court whose authority had been resisted. In such a case the complainant spoken of in Section 210 of the Code of Criminal Procedure, must be deemed to be the Court resisted, and not the person injured through the resistance. Therefore, to make the withdrawal of such a complaint, as that under consideration, legal, it must be based on the application alone of the Court or authority sanctioning the proceedings.2. The Court annuls the order of the Subordinate Magistrate, permitting the withdrawal of the charge in this case, and directs the Magistrate to proceed with the trial, and dispose of the case according to law....
Tag this Judgment!Shivlal Khubchand Vs. Apaji Bhivrav and ors.
Court : Mumbai
Reported in : (1878)ILR2Bom654
Kemball, J.1. The dispute in this case arises out of the following facts: One Shivlal Khubchand obtained a decree for Rs. 650 and proportionate costs, against one Balvantrav Venaik, in the Court of the Subordinate Judge of Puna. Balvantrav appealed to the District Court, and, pending the disposal of such appeal, Shivlal applied for execution. Balvantrav thereupon prayed for its stay, and his prayer was granted, upon two persons Apaji and Venaik becoming sureties 'for the due performance of the decree or order of the Appellate Court.' In the said appeal the decree of the Subordinate Judge was reversed; but in the special appeal, which Shivlal took up to the High Court, the decree of the lower Appellate Court was reversed, and the cause remanded for further trial, which resulted in the District Court confirming the original decree of the Court of first Instance.2. Upon this, Shivlal (apparently under Section 204 of Act VIII of 1859) sought execution of his decree against the sureties Apa...
Tag this Judgment!Golabolee Vs. Kootesboollah Sircar and ors.
Court : Kolkata
Reported in : (1879)ILR4Cal527
Mitter, J.1. In this case the plaintiff seeks to recover possession of a tenure from which he alleges that he has been dispossessed by the zemindar-defendant, assisted by the other defendants. The lower Appellate Court found that the plaintiff's allegation as to ejectment is not made out; and it is also found, upon the evidence on the record, that the plaintiff abandoned the land and went to another village. Upon that ground alone it is quite clear that the judgment of the lower Appellate Court could he maintained. But the lower Appellate Court has further decided the case against the plaintiff upon a question of law raised between the parties upon the assumption that the plaintiff has really been ejected from the tenure. We think that the judgment of the lower Appellate Court upon that point also is correct. The facts upon which the plaintiff relies are shortly these: that a suit for arrears of rent was brought against him in the middle of the year 1278 (1871) by the zamindar. A decre...
Tag this Judgment!Fuckoruddeen Mahomed Ahsan Vs. Mohima Chunder Chowdhry and ors.
Court : Kolkata
Reported in : (1879)ILR4Cal529
Mitter, J.1. We think that in this case the judgments of the lower Courts are not correct. The plaintiff sues for contribution on the allegation that he and the defendants were jointly liable under the decree, and that in execution of that decree, his property alone was sold on the 7th June 1878. He brings this suit on the ground that as he and the defendants were jointly liable under the decree, and as the decree has been satisfied solely by the sale of his property, he is entitled to compel the defendants to contribute their share of the sum thus realized by the decree-holder.2. The plaint was first filed on the 5th June 1876, but it was returned by the Munsif on the 14th June, in order that the plaintiff might specify the sums that the was entitled to get from each of the defendants, and he was directed to refile it within one week. The amended plaint, however, was not filed until the 17th July 1876. It was rejected by the Munsif on the ground that the claim was barred by limitation...
Tag this Judgment!S.B. Shringarpure Vs. S.B. Pethe
Court : Mumbai
Reported in : (1878)ILR2Bom662
West, J.1. The plaintiff in this case is a purchaser, at an execution sale, of the interest of Dharma and others, sold to satisfy a mortgage effected and registered in 1864. The mortgage does not stipulate for possession, but does stipulate for a sale of the property in the event, which has happened, of nonpayment of the debt secured.2. Before the decree on the mortgage, but apparently during the pendency of the suit, the defendant purchased the property from Dharma and other owners by a registered conveyance, and obtained possession. This he maintained against the purchaser (the judgment-creditor) under the sale to satisfy the prior mortgage, and the present suit is brought to establish the title of the execution purchaser.3. By the mortgage in 1864 an interest in the property was conferred on the mortgagee by way of security for his advance of money, which interest became available against all subsequent purchasers or encumbrancers by the registration of the mortgage. This result was...
Tag this Judgment!Laidley and ors. Vs. Gunness Chunder Sahoo
Court : Kolkata
Reported in : (1879)ILR4Cal438
Richard Garth, C.J.1. The plaintiff's now appeal from this decision upon the ground that they had by law a right to sell the tenure under their second decree, and that they were not bound under the circumstances to give any notice of the decree to the defendant Gunness.2. The respondent, on the other hand, contends that the plaintiffs were bound in equity to have given him notice of their decree, and that the Judge's decision founded on that obligation was correct.3. But we are quite unable to discover how such an obligation arises. There is certainly no provision to that effect in the Rent Law, and no authority has been referred to by the learned pleader for the respondent, which in any way justifies his contention.4. It is remarkable that, in the defendant's written statement, he never says from first to last that he was not aware of the plaintiffs' second decree; and the Munsif says that he does not believe he was ignorant of it. It certainly is very extraordinary, if he was so; bec...
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