Court : Kolkata
Reported in : (1876)ILR1Cal148
Phear, J.1. I think I may say the will was revoked by the second marriage; and this will dispose of the present petition....
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom67
West, J.1. The appellant urges that the deed of partition, on which he sues, is excluded from the operation of Section 17 of Act XX of 1866 by being amongst those enumerated in Section 18, Article 7,* as optionally registrable. We do not think that an instrument, to which one of the terms in that article may be applicable, is freed by that circumstance from the necessity of registration under Section 17, if such necessity otherwise exists. If the instrument is one properly falling under Section 17, apart from the provisions of Section 18, Article 7, it ranks amongst the documents before provided for; and the specific provision, imposing a necessity for registration, is not superseded by a general provision for optional registration which is satisfied by applying it to instruments such as those affecting only moveable property not included within the scope of Section 17. The more specific rule, regard being had to the purpose of the Act, is that in Section 17 which applies only to some ...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom73
West, J.1. The District Court has confirmed the order of the Subordinate Judge, limiting the amount, recoverable as interest by the judgment-creditor, to a sum equal to the principal sum awarded by the decree. This decision is based on the rule of the Hindu Law which limits the amount recoverable at one time by way of interest to the amount of the principal. But there is no authority for limiting the amount recoverable in execution of a decree by any such rule. As regards purely private transactions, the law for the protection of the weaker party controls his freedom of contract in the way to which we have referred, or, at least, refuses to enforce the debtor's engagement by means of a duty imposed on the Courts of exercising their powers of coercion to give effect to what it presumes to be an extortionate or unduly rigorous bargain. But the same reason, it is obvious, does not apply to the execution of a decree of a Civil Court. In making such a decree the Judge is not liable, as the ...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal164
M.E. Smith, J.1. After the discussion which has taken place at the bar, there remain only two questions to be decided. The first is purely a question of fact. * * *2. The other question arises upon the period of limitation which is applicable to this case. As already observed, the instrument contains two distinct things: the obligation to pay the money, which binds the maker of it only, and the mortgage of the land; and the plaint in the present suit is properly framed upon the instrument in that aspect. It seeks to charge the first defendant, the maker of the bond, Ritbhunjun Singh personally, and it also claims to recover the amount of the principal and interest by the sale of the mouzahs (naming them), which were the hypothecated property included in the mortgage. It is contended for the appellant that the limitation contained in Clause 16, Section 1 of the Act XIV of 1859 is the proper limitation to apply to the case. That is a sweeping clause, which provides thus: 'that to all sui...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom75
West, J.1. The first point that arises for disposal is, whether a pauper respondent is entitled to present objections at the trial of an appeal without payment of stamp duty under the Court Fees Act VII of 1870. Section 16 of that Act says absolutely that the Court shall not hear such objections until the respondent shall have paid the additional fee due under the Act. No exception is made in favour of pauper respondents. It has been argued by Mr. Ghanasham that a pauper respondent is, when he presents an objection, a pauper appellant, and entitled to the indulgence in that character; but the grammatical construction of the Act does not allow this indulgence to him, and the reason for this probably was that he already had the opportunity of directly making an appeal without expense for court fees, and that an inquiry into his pauperism at the last stage of the case would involve great delay and inconvenience. We do not think, therefore, that there is any good reason for departing from ...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom91
West, J.1. Haibati's son Bhagu, it is clear, passed to the Mamlatdar a razinama of the land in dispute in favour of the defendant Lakshman. Tarachand, as subsequent purchaser of Haibati's rights, now seeks to eject Lakshman, asserting that, as the land is miras, the resignation by Bhagu conferred no more than a precarious right of occupation terminable at the will of Haibati or of the successor to Haibati's interest. It is plain, however, that Bhagu gave up possession of the land in dispute to Lakshman. Lakshman's possession is prima facie evidence of complete ownership throwing the burden, according to Section 110 of the Indian Evidence Act, of showing that it is held on some inferior title, upon him who seeks to dislodge the possessor. Under the English Common Law 'if the defendant pleads livery and seizin from the plaintiff, the plaintiff cannot reply that the livery was conditional without showing the deed, inasmuch as the plaintiff is estopped to defeat his own livery by a naked a...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal151
Phear, J.1. Ordered probate to be granted....
Tag this Judgment!Court : Kolkata
Phear, J.1. I think the Act was only intended to apply to those eases in which the hill itself together with mere lapse of time is sufficient to estahlish for the plaintiff a prima facie right to recover.2. In this case the plaintiff is obliged to allege the occurrence of another fact besides the lapse of time since the making of the bill, namely, that the first instalment has not been paid, which fact is necessary according to the terms of the bill in order to complete the plaintiffs' right to sue. There is no evidence before the Court of this fact, and I do not think the Legislature intended that the summons served in the forms prescribed by Act V of 1866 should have the effect of enabling the plaintiffs' statement of the fact in his petition to prevail without evidence.3. It is argued that the day for the payment of the first instalment being past, it would be incumbent on the defendant to prove payment in answer to any claim for that alone; and that therefore this instalment must b...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom82
West, J.1. In arrest of those proceedings (the criminal proceedings), which are now pending, Jagjivan applies to us and urges, inter alia, that the proceedings before the Subordinate Judge of Thana were coram non judice, he having no authority to attach and sell immoveable property in execution of the decree of the Bombay Court of Small Causes, which itself could proceed against moveable property only. It was argued by Mr. Branson on his behalf that Section 287 of the Code of Civil Procedure did not give to the Subordinate Judge greater power in execution matters than the Court which passed the decree.2. We cannot say why, when the Legislature enacted Section 287 of the Civil Procedure Code, it allowed Section 78 of the Presidency Small Cause Court Act IX of 1850 to stand. Looking, however, to the wording of the former enactment, we find that it runs as follows: 'The copy of any decree, or of any order for execution, when filed in the Court to which it shall have been transmitted for t...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom87
West, J.1. In the former suit between the same parties who are now before the Court, the plaintiff alleged that the defendants had engaged to furnish him with a quantity of firewood to be procured from other persons, and sued for damages for its non-delivery. The defendants answered that they had acted merely as the plaintiff's agents in making a contract with a third party, and were not responsible for the fulfillment of the contract. The material issue raised by the Court of First Instance was, whether the defendants had themselves contracted to deliver the wood, and the decision was that they had not. After the case had been heard, the plaintiff sought to have another issue raised on the question of whether the defendants, as agents, were, by usage, liable for the non-fulfillment of the contract, but this was refused by the Subordinate Judge on the ground that it would essentially change the nature of the suit. In this the Subordinate Judge was quite right, as may be seen by referen...
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