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Sarubai Kom Jitmal Vs. Bapu Narhar Sohoni
Court : Mumbai
Reported in : (1878)ILR2Bom660
West, J.1. The District Judge says that 'the easement... in the matter of air and light existed before the portions of the wall were erected', i.e., the portions between which is the window which the defendant's new structure has closed up. The light and air were there, no doubt, before the wall was built, but there was no appropriation of them, nothing done in reliance on their continued access, in accordance with the provisions of the law, which in such cases allows a right to be created by user and enjoyment as conducive to the general convenience and improvement. The appropriation began no earlier than the wall was built, which was eight years ago at most; and, until the lapse of time should convert the plaintiff's actual enjoyment into a right to its continuance, the defendant had an actual right to build on a space that belonged to her. This she has done. The plaintiff in consequence sustains an inconvenience, but one of which he took the risk when he made his window without an a...
Tag this Judgment!Babaji Mahadaji Vs. Krishnaji Devji, a Minor, by His Guardian Sakubai
Court : Mumbai
Reported in : (1878)ILR2Bom666
West, J.1. The suit in this case was by a minor to set aside the sale of half a house made by his father. The Subordinate Judge found that the transaction was one of a kind by which, according to the Hindu law, the minor was bound--one falling under the general principle of a sale for satisfying a family necessity. The District Judge thinks that even a prima facie necessity, the belief in which held in good faith would protect the purchaser, did not exist. His reasons for this conclusion are that the mortgage, to pay off which some portion of the money was raised, still had some time to run, and that the bond to the purchaser, also, payment of which formed part of the consideration, probably had some time to run, too. These are not, in our opinion, reasons sufficient to disprove an otherwise apparent necessity. It might be highly desirable, in the interests of the family, that a mortgage and a bond at high interest should be paid off, even by a sale of ancestral property, rather than a...
Tag this Judgment!Land Mortgage Bank of India Limited Vs. Vishnu Govind Patankar
Court : Mumbai
Reported in : (1878)ILR2Bom670
West, J.1. The contention of the applicant in this case is that, whether he had or had not acquired actual possession under his purchase of June 1877, the ownership of the land had, in fact, passed to him, and that being owner of the land he was owner of the landlord's moiety of the crops as it was cut, so that there was nothing of the mortgagor's (Datar's) which could be attached by Patankar in execution of his old money decree against Datar. For the opponent it is said that Datar, being allowed to remain in possession after the time limited for payment of the mortgage money and even after the sale, was justified in cultivating the land directly or by the mediation of his tenants; that he thus became entitled to the emblements, notwithstanding an intermediate sale followed even by his dispossession as to the land; and that the crops being thus his property, or so far as they were his property in the hands of the tenants, were subject to his creditor Patankar's attachment.2. No case ha...
Tag this Judgment!Bireshur Mozoomdar Vs. Krishna Kishore Shaha
Court : Kolkata
Reported in : (1879)ILR4Cal595
Mitter, J.1. We think that in this case the preliminary objection taken by the pleader for the respondent must prevail. The plaintiff brought this suit to recover from the defendant No. 1 Rs. 74-12-14 1/4 under the following circumstances:The plaintiff' alleges that he is the holder of a patni taluk, the rent of which is Rs. 128-11-2 1/2; that by an arrangement between himself and the defendants Nos. 1 and 2, the zamindars, he had, out of the rent payable by him, to pay Rs. 76-4 Government revenue of the zamindari, and Rs. 3-2 road-cess; and that he, accordingly, for the year 1281, paid these two amounts into the Collectorate; that the balance, Rs. 49-5-1 1/2-, which was due to the defendants Nos. 1 and 2, was tendered to them, but they having refused to receive that money he deposited the amount in the Munsif's Court on the 1st of April 1874 under the provisions of Section 46, Beng. Act VIII of 1869; and that, notwithstanding these facts, the defendant No. 1 took proceedings under Reg...
Tag this Judgment!In Re: the Matter of the Empress Vs. Abdool Kurreem
Court : Kolkata
Reported in : (1879)ILR4Cal10
White, J.1. The prisoner before us has appealed against the finding of the Sessions Court on the facts and also against its conclusions in law. It appears to me unnecessary to enter into the merits of the appeal, for taking the facts as found by the Court to be true and the law applied by it to be correct, I am of opinion that this conviction cannot be sustained.2. The prisoner is charged with the abetment of an offence under Section 494 of the Penal Code. To establish a charge of abetment under the Penal Code, the accused must be proved either to have instigated or aided some other person to commit the offence, or to have engaged with another in a conspiracy for the commission of the offence. The acquittal of Abdool Sobhan, who was jointly charged with the prisoner, puts an end to the case of conspiracy, for, except with Abdool Sobhan, there is no evidence to support a case of conspiracy. If therefore, the conviction can be upheld, it must be in consequence of the prisoner having inst...
Tag this Judgment!Kaliprosonno Ghose and anr. Vs. Kamini Soonduri Chowdhrain
Court : Kolkata
Reported in : (1879)ILR4Cal475
Richard Garth, C.J.1. We consider that the view which the lower Court has taken of these cases is not altogether correct.2. In the first place, the Subordinate Judge was wrong in supposing that, by taking an assignment of the mortgages bond fide in the name of a trustee, the plaintiff could not prevent the merger of the mortgagor's and mortgagee's interests, and consequently the extinguishment of the mortgage debt. The assignment was taken in the trustee's name expressly for the purpose of preventing the merger, and keeping alive the two estates; and there is ample authority that this object may properly and legally be carried out by means of an assignment of this nature--see Watts v. Symes (1 De. and G., M. and S., 240), and Adams v. Angell (L.R., 5 Ch. Div., 634).3. The real objection to these suits, in an equitable point of view, appears to us to he this--that the plaintiff, who is the beneficial owner of Alampur, subject to the mortgages, and as such, liable, conjointly with the ow...
Tag this Judgment!Schiller and ors. Vs. Sooltan Chand and ors.
Court : Kolkata
Reported in : (1879)ILR4Cal252
Richard Garth, C.J.1. The defendants have appealed, and the amount of damages not being disputed, we have only to consider whether the defendants were justified in cancelling the contract. The defendants rely on the provisions of Sections 39 and 51 of the Indian Contract Act of 1872. Under Section 39 they say that the plaintiffs not having paid for the goods on delivery, they have refused to perform the contract in its entirety: and that the defendants had, therefore, a right to cancel it. This is not my view of the proper construction of Section 39.2. That section, as I understand it, only means to enact what was the law in England, and the law here, before the Act was passed,--viz., that where a party to a contract refuses altogether to perform, or is disabled from performing, his part of it, the other side has a right to rescind it.3. This rule will be found explained in the notes to Cutler v. Powell (2 Smith's L.C., 1, at p. 12, 7th ed.). The case of Freeth v. Burr (L.R., 9 C.P., 2...
Tag this Judgment!Luchmessur Singh Vs. Leelanund Singh
Court : Kolkata
Reported in : (1879)ILR4Cal599
Jackson, J.1. In the Court of the Subordinate Judge a question of fact was raised--viz., whether the ferry, as now existing, touched on the eastern side upon the defendant's village or plaintiff's. Upon the evidence, and after personal inspection, the Subordinate Judge was of opinion that the land at that particular spot belonged to the plaintiff. He observed, that although the defendant had called witnesses to show that the spot of land in question belonged to him, no document whatever was produced in support of what they said, and, in short, he did not believe those witnesses. Far from that being the case, it seems that a good many documents, and some of them of an altogether unimpeachable kind, were produced by the defendant, and it appears that there was no particular reason why the witnesses should be disbelieved. But in our opinion that point is not really material, if we assume that the point of debarcation at the ferry on it eastern side has been shifted from within the plainti...
Tag this Judgment!V.K. Gujar Vs. V.D. Barve
Court : Mumbai
Reported in : (1878)ILR2Bom673
West, J.1. The plaintiff Vithu, having been dispossessed of property held by him under a mortgage on the 14th December 1875, applied on the 14th January 1876 for restitution. The 13th having been a Court holiday, the question is,--whether the period of limitation expired on the 12th January 1876, so as to bar an application which but for the holiday might have been made on the 13th2. According to the rule in the Code of Civil Procedure, Act VIII of 1859, Section 230, a person dispossessed 'might apply to the Court within one month from the date of such dispossession.' These words, it was ruled in Dadu v. Balgouda 5 Bom. H.C. Rep., 39, give to the 'applicant a clear month... exclusive of the day on which he was dispossessed, in which to make his application.' In the Limitation Act, IX of 1871, it is said (section 4) that every 'application made after the period prescribed therefore... shall be dismissed.' And in Schedule II, Article 158, it is provided that in a case of dispossession an...
Tag this Judgment!The First Assistant Collector of Nasik and ors. Vs. Shamji Dasrath Pat ...
Court : Mumbai
Reported in : (1883)ILR7Bom209
M.R. Westropp, Kt., C.J.1. This was an action brought by the villagers of Dabhade in the Malegaon Taluka of the Nasik District against certain revenue authorities to remove an obstruction to a watercourse placed by the First Assistant Collector in charge of the taluka and confirmed by his superiors. It is sufficient for the purposes of this appeal to note that a dam had been in existence, for a great number of years across the river Girna by means of which the lands of the neighbouring villages of Dabhade and Patna were irrigated through separate channels. Constant disputes had taken place from time to time between these two villages as to the quantity of water to which each was entitled, and eventually the Assistant Collector took up the matter with the view to putting an end to the quarrels, and finding that there was more cultivated land in Patna than in Dabhade, he determined to reduce, and did reduce, the opening of the Dabhade sluice thereby diminishing the supply of water to tha...
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