Allahabad Court May 1914 Judgments
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Hambeed-ud-dIn and anr. Vs. Raghunath Prashad Misir
Court: Allahabad
Decided on: May-12-1914
Reported in: 24Ind.Cas.271
1. This appeal arises out of a suit for pre-emption. It appears that in the year 1874 a mortgage was made by way of conditional sale. In the year 1910 a suit for foreclosure was brought. The parties compromised, the terms being that a decree was to be made for foreclosure, the mortgagor apparently giving up all right to redeem. The contention on behalf of the plaintiff is that this mortgage by conditional sale in 1874 coupled with the decree in the terms of the compromise was equivalent to a sale, and he contends that a custom of pre-emption preyails in the village. The evidence of the custom consists of an entry in the Wajib-ul-arz which gives a right to certain co-sharers to pre-empt property in the case of a simple sale and also in case of a mortgage with possession or a mortgage by way of conditional sale. It is then argued on behalf of the plaintiff that the events which have happened in the present case amount to a simple sale and accordingly there is a right of pre-emption. In a...
Zulfikar Haider and anr. Vs. Durga and ors.
Court: Allahabad
Decided on: May-12-1914
Reported in: AIR1914All292; 24Ind.Cas.422
1. This appeal arises out of a suit for pre-emption. The Court of first instance granted the plaintiff a decree. The lower Appellate Court reversed the decree of the Court of first instance and dismissed the plaintiffs' suit. Neither of the Courts below appear to us to have approached the consideration of the question of the existence or non-existence of the custom of pre-emption in quite a correct way. The lower Appellate Court appears not only not to have considered the question from the right point of view but also to have neglected to consider certain evidence on the record. In our opinion for pre-emption, based on alleged custom, the Court ought to be very careful to remember what the issue is. The issue is, not what is the true construction of the particular wajib-ul-arz, but, does the custom of pre-emption exist?' The wajib-ul-arz is a piece of evidence to be carefully considered but the construction of a particular expression in it is not the issue [See Ganga Singh v. Chedi Lal...
Frank Hay and anr. Vs. Rafiuddin
Court: Allahabad
Decided on: May-11-1914
Reported in: AIR1914All512; 25Ind.Cas.353
1. This is a first appeal from an order of remand. The plaintiff claimed to redeem a mortgage alleged to have been executed in or about the year 1856 A. D. On the pleadings, the Court of first instance framed a number of issues, the first of which was, is the suit within time?' In considering this issue the learned Munsif began by rightly remarking that, in a suit for, redemption, the plaintiff must prove that he has a subsisting right to redeem. He then went on to consider the evidence and expressed himself as satisfied that there was no mortgage in the year 1856, that the mortgage under which the defendants were in possession existed certainly in the year 1853 A. K and that there were grounds for presuming that it had been in existence a number of years prior to that. On this he held that the suit was barred by time and dismissed it accordingly. The Court of first appeal has considered the evidence which was before the first Court, and has recorded a finding that there was a mortgage...
Pargas Singh and anr. Vs. Mansab Ali
Court: Allahabad
Decided on: May-11-1914
Reported in: AIR1914All313(1); 24Ind.Cas.416
1. This is a defendants' appeal arising out of a suit for pre-emption. The plaintiffs came into Court claiming a right of pre-emption on three grounds :(1) on the basis of a custom in the village :(2) on the basis of a contract between the co-sharers : and(3) on the basis of the Muhammadan Law.2. The Courts below have held that no custom was proved. They have also held that the claim based on the Muhammadan Law has failed as the necessary preliminary demands were not made. But on the basis of contract they have decreed the claim.3. The evidence of the contract relied upon is an extract from the Wajib-ul-arz of the current settlement. Reading that it is clear that the agreement was one between co-sharers to last so long as they remained co-sharers. Subsequent to the settlement Musammat Imam Bandi Bibi, a co-sharer in the village, effected a partition of her share (0-3-11) which was formed into one separate mahal. She transferred her mahal to one Farzand Ali, who in turn transferred it t...
Gaya DIn Singh Vs. Gajadhar and ors.
Court: Allahabad
Decided on: May-11-1914
Reported in: AIR1914All542(2); 24Ind.Cas.611
1. This is a suit for the redemption of three usufructuary mortgages. There were seven simple mortgages on the property each of which provided that it should be redeemed before the usufructuary mortgages were redeemed. The do-fence was that the plaintiff was not entitled to redeem the usufructuary mortgages without redeeming the simple mortgages also. Both the Courts below have held that the stipulation in the simple mortgages amounts to a clog on the right of redemption and that the stipulation cannot be enforced. It appears to us that this decision is contrary to the decision of this Court in Ranjit Khan v. Ramdhan Singh 2 Ind. Cas. 859 : 31 A. 482 : 6 A.L.J. 654 in which a large number of cases on the point are discussed.2. We allow the appeal, set aside the decrees of the Courts below and remand the case to the first Court to be restored to its original number and to be disposed of according to law. Costs here and heretofore will be costs in the cause. Costs in this Court will incl...
Surajbale Singh Vs. Birthu and ors.
Court: Allahabad
Decided on: May-11-1914
Reported in: AIR1914All92; 24Ind.Cas.482
This appeal arises out of a suit brought by the plaintiff-appellant for a declaration that a sale-deed executed by a Hindu widow on June 14th, 1912 was not binding on the plaintiff as reversioner. The sale-deed was executed in favour of persons who were three out of four reversioners to the estate of the widow's husband and these four were the next reversioners. The fourth reversoner, Ram Bharose, assented to the sale. The plaintiff is a remoter reversioner. The sale being thus with the consent of the next reversioners the case comas within the perview of the decision of their Lordships of the Privy Council in Bajrangi Singh v. Manokarnika Bakhsh Singh 30 A. 1 (P.C) : 12 C.W.N. 74 : 9 Bom.L.R. 1348 : 6 C.L.J. 766 : 3 M.L.T. 1 : 5 A.L.J. 1 : 35 I. A. 1 : 17 M.J. 605. and the plaintiff is not entitled to maintain the suit. If it be assumed that the sale was without consideration and was a gift, it being a gift in favour of the next reversioners the transaction amounted to a surrender of ...
Ahmadullah Khan Vs. Zar Mohammad and anr.
Court: Allahabad
Decided on: May-11-1914
Reported in: 24Ind.Cas.609
1. This appeal arises out of a suit for pre-emption. The subject-matter of the claim was a grove. In the sale-deed the land and the trees and everything appertaining to the grove are sold. The vendee contends that, although there is a custom of pre-emption between co-sharers, the subject-matter of the sale in the present suit cannot be considered as the hakiat or part of the hakiat of the vendor because the grove is not assessed for Government revenue, and that in any event when a plot of land has been sold, the ordinary right of pre-emption does, not arise. In our opinion it is a mistake to think that a right of pre-emption can never arise in the case of sale of a plot of land. If the plot of land is the share of the co-sharers or part of the share and a custom of pre-emption- prevails, then the persons who have a right of preemption are entitled to maintain the suit. The simplest case of this kind occurs in such mahals as those in which the co-sharers have separate fields representin...
Karam-ullah Khan and anr. Vs. Ram Sarup Sahu
Court: Allahabad
Decided on: May-08-1914
Reported in: (1914)ILR36All464
Richards, C.J. and Tudball, J.1. The only question in this appeal is that of consideration. the consideration according to the sale-deed was Rs. 399. Evidence was given in the court below to show that the market value put at the very highest would not amount to Rs. 200. So far as the finding of the lower appellate court is a finding of fact as to the consideration it is binding upon us in second appeal. It is argued, however, on behalf of the appellant that as Rs. 399 was actually paid before the Sub-Registrar, and inasmuch as there was no evidence that any of this sum was given back, the court was bound to hold that that was the true consideration. Reliance is placed upon the case of O'Conor v. Ghulam Haidar (1). This ruling is in our opinion contrary to a series of rulings of this High Court, and was expressly dissented from in the case of Abdul Majid v. Amolak and Ranji Lal (2). In our opinion when it is alleged that the sale price is fictitious and put into the deed for the purpose...
Ram Pat and Sheo Dulare and ors. Vs. Dwarka and ors.
Court: Allahabad
Decided on: May-08-1914
Reported in: (1914)ILR36All461
Richards, C.J. and Tudball, J.1. The first point taken in this Letters Patent appeal is that the decree of the court below which was affirmed by this Court is not a decree for partition. In our opinion the decree can be read as a preliminary decree for partition. It was so interpreted by the learned Judge of this Court, and we have not the least doubt that when the case goes back to the court below it will act accordingly.2. The next point argued was that amongst the items of property is an occupancy holding and that under Section 32 of the Tenancy Act no suit can be brought for the division of an occupancy holding. This matter is in our opinion also covered by the judgment of the learned Judge of this Court. There can be no doubt that a suit for partition of property can be brought, even if the family property includes an occupancy holding. It does not at all follow that the court must necessarily sub-divide the holding in contravention of the provisions of the Tenancy Act. The Court ...
Bhagirathi and ors. Vs. Suraj Mal and anr.
Court: Allahabad
Decided on: May-08-1914
Reported in: AIR1914All373(1); 25Ind.Cas.327
Chamier, J.1. In this case the respondents asked the Munsif to send their opponents to a Criminal Court to be tried there for various offences. The Munsif came to the conclusion that there was not sufficient evidence to secure a conviction and he declined to take any action. The respondents then appealed to the District Judge who had no right to entertain the appeal inasmuch as the respondents had not asked the Munsif for sanction to prosecute their opponents. They had asked him to take action himself against them. I hold that the District Judge had no jurisdiction to entertain the appeal. He, however, recorded an order in which he called the attention of the District Magistrate to the facts and recommended him to institute criminal proceedings against the four men. The order has presumably been brought to the notice of the District Magistrate who will, no doubt, take such action as he thinks proper. All that I can do is to formally set aside the order of the Judge. But I cannot preven...
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