Allahabad Court August 1909 Judgments
Ram Prashad Misser and ors. Vs. Babu Mahadbo Parshad and ors.
Court: Allahabad
Decided on: Aug-12-1909
Reported in: 3Ind.Cas.640
1. This appeal arises out of a suit to enforce a right of pre-emption in respect to a sale of shares in Seminar. The claim was based on custom. The evidence to prove the custom produced by the plaintiff, consists of an extract from the village wajib-ul-arz of 1833 and the whole of that for 1860.2. Both the lower Courts have held that this evidence does not establish the alleged custom and have dismissed the suit. They hold that these two documents are records of contracts between the co-sharers and do not relate the existence of a custom. The sole ground of appeal is that this evidence has been misconstrued and that upon a proper construction they are clear evidence of the custom alleged. It is the old question of contract or custom. I have been led by the parties through what I may fitly describe as a bewildering maze of conflicting decisions.3. The extract of the wajib-ul-arz for 1833 contains the preamble to that document and the clause relating to pre-emption. In the preamble the c...
Tag this Judgment!Thakur Jawahir Singh Vs. Thakur Jai Karan Singh
Court: Allahabad
Decided on: Aug-12-1909
Reported in: 4Ind.Cas.59
1. We are of opinion that the suit was one for contribution by a sharer in joint property in respect of payment made by him of money due by a co-sharer and was, therefore, excluded from the cognizance of the Court of Small Causes by Article 41, Schedule II of the Provincial Small Cause Courts Act. The learned Subordinate Judge was in error in holding the contrary and by directing the plaint to be returned to the plaintiff improperly refused to exercise jurisdiction. We, accordingly, set aside the order of the Subordinate Judge and direct him to re-admit the plaint and proceed to hear the suit in accordance with law. Costs here and hitherto will abide the event....
Tag this Judgment!Lala Chandrabhan Lall Vs. Manik Pandey and ors.
Court: Allahabad
Decided on: Aug-11-1909
Reported in: 3Ind.Cas.721
1. This appeal arises out of a suit for pre-emption. The right of preemption is sought to be exercised in respect of a usufructuary mortgage. The Court of first instance dismissed the suit. The lower appellate Court has decreed it. The evidence of the custom was an extract from the wajib-ul-arz of 1881, although the village is permanently settled, the old wajib-ul-arz was not given in evidence. The extract from the wajib-ul-arz of 1881 is to the following effect: The custom of pre-emptiom exists when any co-sharer desires to transfer his share etc.' Then follows the usual statement as to the persons who have a pre-emptive right. In the present case the plaintiff has a right as against the defendant provided that there is a custom of preemption extending to usufructuary mortgages. It must be noted that the wajib-ul-arz does not in express terms refer to mortgagors. Witnesses were examined and amongst others the plaintiff and the transferees. Further all the witnesses seem to have admitt...
Tag this Judgment!Kampta Parshad and anr. Vs. Mohan Bhagat and ors.
Court: Allahabad
Decided on: Aug-11-1909
Reported in: 3Ind.Cas.782
1. The facts of the case on which the decision of this appeal turns are as follows:The plaintiffs, respondents to this appeal, sold certain zamindari shares for Rs. 900 to Adit Singh and four others. On the same date they sold for Rs. 150 to Adit Singh alone, two rent Court decrees in their favour. Adit Singh could not pay down the purchase-money of this sale, and as security therefor he mortgaged to the plaintiffs his share in the property which had been purchased from them by the former of these two sale-deeds. The mortgage was created on the same date but subsequent to the sale. The present appellants brought a suit to pre-empt the zamindari. To this suit they joined as parties the vendors and the vendees, the former being the mortgagees under the subsequent mortgage.2. These vendors did not defend the suit and the appellants obtained a decree conditional on payment of the full consideration for the sale. This sum they paid and then were placed in possession. The vendors (mortgagees...
Tag this Judgment!Ram Charan Misir Vs. Bhagwan Das and anr.
Court: Allahabad
Decided on: Aug-10-1909
Reported in: 5Ind.Cas.874
Alston, J.1. The plaintiffs sued on a mortgage, one of the defendants being the auction purchaser at a sale of the mortgaged property, held in execution of the decree of a third party. The defendant auction-purchaser pleaded that the mortgage, upon which the plaintiffs sued, was a fictitious and collusive mortgage, which had been executed by the judgment-debtors in favour of their relations with a view to defrauding their creditors. The lower Courts both held that the auction-purchaser, having bought subject to the mortgage, was not entitled to raise this plea. The question before me is whether this view was a correct one or not. It appears that when the property was attached in execution of the decree, the mortgagees asserted their mortgage and obtained an order in their favour under Section 282 of Act XIV of 1882, after what the lower appellate Court, which had the record before it, describes as 'a full contest.' It was contended on behalf of the respondents here, who are the plainti...
Tag this Judgment!Wajid Ali and anr. Vs. Shaban and ors.
Court: Allahabad
Decided on: Aug-09-1909
Reported in: (1909)ILR31All623
Banerji, J.1. This appeal arises out of a suit for pre-emption brought by the appellants Wajid Ali and Ali Ahmad in respect of a sale made in favour of the first respondent on the 8th of July, 1905. On that date Ali Ahmad, plaintiff, was admittedly not a co-sharer in the village. His grandfather, Bakht Ali, was alive at the time and owned a share, which after his death devolved on. Ali Ahmad by right of inheritance before the institution of the suit. It is by virtue of the ownership of this share that. Ali Ahmad claims pre-emption. Those being the facts, two questions arise for consideration: first, whether Ali Ahmad has a right of pre-emption, he being a person who was not a co-sharer in the village at the date of the sale but became a co-sharer; by right of inheritance before the institution of the suit; and secondly whether Wajid Ali by associating Ali Ahmad with himself in bringing the suit, forfeited his own right of pre-emption, if he had any2. As there is a conflict of rulings o...
Tag this Judgment!Sheikh Wajid Ali and anr. Vs. Sheikh Sahan Alias Sheikh Shahban and or ...
Court: Allahabad
Decided on: Aug-09-1909
Reported in: 3Ind.Cas.820
Banerji, J.1. This appeal arises out of a suit for pre-emption brought by the appellants Wajid Ali and Ali Ahmad in respect of a sale made in favour of the first respondent on the 8th of July 1905. On that date Ali Ahmad, plaintiff, was admittedly not a co-sharer in the village. His grandfather, Bakht Ali, was alive at the time and owned a share which after his death devolved on Ali Ahmad by right of inheritance before the institution of the suit. It is by virtue of the ownership of this share, that Ali. Ahmad claims pre-emption. These being the facts, two questions arise for consideration:First.-Whether Ali Ahmad has a right of pre-emption, he being a person who was a co-sharer in the village at the date of the sale but became a co-sharer by right of inheritance before the institution of the suit andSecond.-Whether Wajid Ali by associating Ali Ahmad with himself in bringing the suit forfeited his own right of pre-emption, if he had any.2. As there is a conflict of rulings on the first...
Tag this Judgment!Shib Shankar Lal and anr. Vs. Lala Soni Ram
Court: Allahabad
Decided on: Aug-07-1909
Reported in: 3Ind.Cas.725
1. This appeal arises out of a suit for the redemption of a usufructuary mortgage dated the 2nd of January 1842 and the only question we have to determine is whether the claim is time barred or not.2. The mortgage was made by Dalip Singh and others in favour of one Khushwakt Rai and related to the whole of the village Khera Buzurg. Khushwakt Rai died leaving' a widow, Musammat Jamna, and a daughter, Musammat Janki, both of whom are now dead. The defendants Shib Shankar Lal and Charan Bihari Lal are the sons of Musammat Janki.3. On 12th November 1865 Musammat Jamna made a sub-mortgage of her mortgagee rights in favour of Akhay Ram and Day a Ram.4. On the 31st of May 1866 she sold one half of her mortgagee rights to Debi Prasad and Gulab Rai and mortgaged to theni the other half which after her death was sold to those persons by her daughter Janki on 29th April 1867. So that Debi Prasad and Gulab Rai acquired the whole of the mortgagee rights.5. Between the years 1880 and 1883 the mortga...
Tag this Judgment!Abdul Rahman and ors. Vs. Emperor
Court: Allahabad
Decided on: Aug-07-1909
Reported in: 3Ind.Cas.952
1. This is an application in revision to set aside two orders, dated respectively the 17th and 19th of May 1909, purporting to have been made under the provisions of Section 476 of the Code of Criminal Procedure. That section provides that 'when any Civil, Criminal or Revenue Court is of opinion that there is ground for enquiring into any offence referred to in Section 195 and committed before it or brought under its notice in the course of the judicial proceeding', such Court may send the case for enquiry or trial to the nearest Magistrate of the 1st class.2. The petitioners contend that the proceeding in which the offence in question is alleged to have been committed, was not a proceeding in a Civil, Criminal or Revenue Court, nor was the matter brought under the notice of the Court in the course of a judicial proceeding and that being so there was no jurisdiction to make the order complained of. As neither of the lower Courts have set out the course of the proceedings which culminat...
Tag this Judgment!Emperor Vs. Jagmohan and ors.
Court: Allahabad
Decided on: Aug-07-1909
Reported in: 4Ind.Cas.812
Tudball, J.1. This is a reference made by the learned Sessions Judge of Allahabad, recommending that the commitment made of the accused Jagmohan and Ram Bharuse to the Court of Sessions for trial of an offence under Section 211 of the Indian Penal Code should be quashed. The case against the two is that they gave false information to the police that certain persons had committed murder. The case proceeded no further than the police enquiry. They were then charged before the Magistrate with the present offence under Section 211 of the Penal Code. The Magistrate has committed them for trial, because in his opinion the offence is one falling under paragraph 2 of Section 211. This is the sole ground given for the commitment. Under the ruling reported in Queen-Empress v. Bisheshar 16 A. 124 the offence charged against the present accused is one which falls within the first paragraph of Section 211 of the Indian Penal Code. This Court has differed on the point from the rulings of the other H...
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