Allahabad Court February 1923 Judgments
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Ram Prasad Vs. Mahabir and anr.
Court: Allahabad
Decided on: Feb-14-1923
Reported in: 79Ind.Cas.803
1. This is a matter which is perfectly simple and straightforward, but which by a combination of circumstances has got into a slight tangle. The whole question turns upon the interpretation of a will, about which unfortunately there has been a difference of opinion. But that question was finally and conclusively determined against the parties to this suit, by a judgment of the Chief Justice and Mr. Justice Banerji on the 5th of December 1919. In order to simplify this judgment we propose to call the parties merely appellant and respondents. The appellant and respondents to this appeal were entitled by a will of an ancestor dated the 10th of April 1882 to a half share of a business. A controversy has arisen over the meaning of the will as to the house. The respondent brought a suit against the appellant to determine that question. It reached the High Court in second appeal and every Court was against the appellant, and it was decided by a single Judge of this Court in May 1916 that the ...
Musammat Basra Begam Vs. Babu Sheo Narain
Court: Allahabad
Decided on: Feb-12-1923
Reported in: 71Ind.Cas.979
P.C. Banerji, J.1. The Receiver of the estate of an insolvent having attached certain property as the property of the insolvent, the present appellant, preferred an objection claiming the property. This objection was disallowed by the District Judge who recorded a decision to the effect that the appellant had failed to establish his claim. Thereupon the appellant brought a regular suit in the Civil Court for the establishment of his right to the property. This suit was decreed by the Court of first instance but was dismissed by the lower Appellate Court, that Court being of opinion that the matter was res judicata in consequence of the decision of the Insolvency Court to which I have referred above, The plaintiff has preferred this appeal. I am of opinion that the appeal must fail, inasmuch as the suit instituted by the plaintiff is precluded by the provisions of Section 4 of the new Insolvency Act, No. V of 1920. That section makes the decision of the Insolvency Court conclusive in al...
Bansidhar Vs. Lala Sham Lall
Court: Allahabad
Decided on: Feb-12-1923
Reported in: 71Ind.Cas.1012
P.C. Banerji, J.1. In my judgment there is no force in this appeal. Sham Lal was the creditor of one Ram Samp under a bond. After the death of Ram Sarup his assets were taken possession of by one Piarey Lal. Sham Lal brought a suit on the basis of the bond (which was a simple bond) against Piarey Lal, and obtained a decree which directed the amount of it to be realised, from the assets of Ram Sarup, in the hands of Piarey Lal. After the passing of the decree the present appellant, Bansidhar, brought a suit against Piarey Lal claiming the property of Ram Sarup on the allegation that he was the reversioner to the estate of Ram Sarup and that Piarey Lal had no right to it. The matter was compromised and a decree was obtained by Bansidhar against Piarey Lal. After obtaining this decree Bansidhar preferred a claim to the Court in which the decree obtained by Sham Lal was in course of execution and by which the property had been attached for the recovery of the amount of the decree. This obj...
Babu Abdul Haq and ors. Vs. Moti Lal
Court: Allahabad
Decided on: Feb-12-1923
Reported in: AIR1923All293; 71Ind.Cas.983
P.C. Banerji, J.1. This was a suit for partition of 5.48 shares in a house which the plaintiff purchased at auction. The appellant is one of the co-sharers in the house and he owns a larger share than one-half. The Court of first instance made a decree for partition which was confirmed by the lower Appellate Court. In neither of those Courts was any application made on behalf of the appellant under the provisions of the Partition Act, No. IV of 1893. In this appeal for the first time it is contended that, as the appellant owns a larger share than one-half, lie is entitled to avail himself of the provisions of the Act, and to ask the Court to sell the property instead of partitioning it and give the appellant the option of buying the plaintiff's share. In my opinion it is too late for the appellant to raise this contention. The provisions of tin; Partition Act apply, in my opinion, to the stage at which the suit is in the Court of first instance. The various provisions of the Act manife...
Hazari Lal and anr. Vs. Nimar and ors.
Court: Allahabad
Decided on: Feb-09-1923
Reported in: AIR1923All295; (1923)ILR45All386; 71Ind.Cas.1038
Grimwood Mears, C.J. and Pramada Charan Banerji, J.1. This appeal must succeed. The fact is that there was a grove, some 18 years ago, on land formerly in the possession of the ancestors of the defendants as grove-holders. Those trees were cut down and the grove-holders abandoned the land, which thereupon reverted to the zamindars. For upwards of 12 years the land remained as waste; there were neither trees nor cultivation upon it. At a period which is certainly from 3 to 6 years prior to the commencement of the suit, the defendants planted certain trees on the groves. They are the descendants of the original grove-holders. We are of opinion that that fact gives them no preferential right or differentiates them in any way from any other person who might have come in and planted trees without the permission of the zamindar. They had no right to come upon the land after its abandonment by their predecessors in title. The learned Judge in this Court says that 'as the matter stands, the pl...
Sheo Nandan and anr. Vs. Munni and ors.
Court: Allahabad
Decided on: Feb-09-1923
Reported in: 71Ind.Cas.1013
1. The only question which arises in this appeal is, whether the plaintiff is a heritable bhinna gotra sapinda of the deceased Digga. The plaintiff is the great-grandson of Musammat vSahaisi, the sister of Digga's father, Khem Raj. The defendants are the mortgagees in possession and the suit is one for redemption of the mortgage. The First Court had held that the plaintiff was a bhinna gotra sapinda who could inherit the property of Digga and decreed the claim for redemption. On appeal the lower Appellate Court has held that the plaintiff was not such a bhinna gotra sapinda as could inherit the property of Digga and has on this finding dismissed the claim. The plaintiff comes here in second appeal. It is quite clear that his relationship is not such as would entitle him to inherit the estate of Digga, deceased, (sec Sarvadhikari's Hindu Law of Inheritance, Second Edition, page 592). We have not been referred to any authority to the contrary, and all the authorities which we could lay o...
Ram Khelawan and ors. Vs. Brij Lal and ors.
Court: Allahabad
Decided on: Feb-09-1923
Reported in: 71Ind.Cas.991
1. One Mahesh made a simple mortgage of his fixed rate holding in 1910. Upon his death his nephew, Bhagwati, succeeded to the holding. The zemindar took forcible possession of the holding, but Bhagwati took no steps to recover it from the zemindar. The present suit was instituted against the zemindar, who is now in possession, to recover the amount due upon a mortgage. There is no doubt that a mortgage of a fixed rate holding could be legally made under the law. The question is whether the holding has become extinct, and whether the mortgage is enforceable as against the zemindar. In our opinion the inaction as to the recovery of possession of the holding is equivalent to a surrender of the holding. If the holding was surrendered, that surrender would not affect the mortgage in favour of the plaintiffs. The same would be, in our opinion, the result if Bhagwati intentionally abstained from recovering possession of the holding and allowed the zemindar to take possession and continue in p...
Shyam Lal Vs. Padam Singh
Court: Allahabad
Decided on: Feb-09-1923
Reported in: AIR1923All296; 71Ind.Cas.1025
1. It appears that one Asa Ram executed a deed of sale in respect of some of Ins landed property in favour of Shyam Lal on the 26th October 1919, ,and the sale-deed was registered on the nth November 1919. On the 27th October 1920 the suit, out of which this appeal has arisen, was brought by Padam Singh, the plaintiff-respondent, for the recovery of the property conveyed by the deed of the 27th October 1919 on the ground of preemption. It was stated in the plaint that the custom of pre-emption prevailed in the village in which the property in suit was situate and under that custom a co-sharer had a preferential right of purchase to a stranger. The plaintiff was a co-sharer in the village with the vendor and the vendee was an absolute stranger.2. The claim was resisted by the denial of the custom of pre-emption set out in the plaint. The Court of first instance decreed the claim and its decree was upheld in appeal.3. The vendee has come up in second appeal to this Court and contends tha...
Emperor Vs. Umrao
Court: Allahabad
Decided on: Feb-09-1923
Reported in: 74Ind.Cas.257
1. Upon reading the Sessions Statement in this case a Judge of this High Court directed notice to be served upon the accused to show cause why this Court should not either (a) order his re-trial on a charge framed under Section 302 of the Indian Penal Code, or (b) whilst maintaining the conviction enhance the sentence. The accused was charged with having caused the death of one Murari. There is really no difficulty about the facts, and we accept the facts which the learned Sessions Judge considered to be proved. On the occasion in question the accused struck one blow with a lathi which fell upon the head of Murari. This blow fractured Murari's skull and he died shortly after. There were no circumstances which brought this case within the exception of grave and sudden provocation. There was, however, evidence of the quarrel between the two men and there seems very little doubt that there was an exchange of abuse. In the result the learned Sessions Judge convicted the accused under Secti...
Pandit Nathu Ram Vs. Ghanshyam and ors.
Court: Allahabad
Decided on: Feb-09-1923
Reported in: AIR1923All519; 74Ind.Cas.824
1. The judgment of the lower Appellate Court is attacked in this appeal on the ground that the learned Judge was wrong in holding that the wajib-ul-arz of the village in question contains a record of custom.2. There can be no doubt that the record is couched in most unusual language. The clause relating to pre-emption begins with the statement that a co-sharer is at liberty to sell his share but that he must first offer it to co-sharers in his own patti, preference being given to near relations. It then goes on to provide that if none of the persons just mentioned are willing to take the property then he is at liberty to sell to co-sharers in any other thok or patti. These words, however, are qualified by the addition of the words 'jisseraziho,' indicating that the person who wishes to sell has some right of selecting the person to whom he will make the offer. After this, it is provided that if no one in the second category is wiling to take the property and it no person in the village...
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