Allahabad Court December 1926 Judgments
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Abdul Aziz Khan Vs. Nanhe Khan
Court: Allahabad
Decided on: Dec-16-1926
Reported in: AIR1927All458; 101Ind.Cas.529
Walsh, A.C.J.1. In our opinion this appeal must succeed. The Judge is right in saying that it is a matter for his discretion-but it must be a judicial discretion, exercised upon recognized principles. The recognized principle is that a father is not only the natural guardian but has an inalienable right unless there are overwhelming circumstances to the contrary. The report of the Tahsildar does him great credit. But it is distinguished rather for goodness of heart than of head. There is hardly a reason which can be considered adequate to overrule the right of the father.2. It so happens that an English Court of Appeal has recently decided the same point in almost precisely similar circumstances in Re Thain, Thain v. Taylor [1926] Ch. 676. The appeal must be allowed and the child restored to the custody of the father. We think it better to direct that he, if he can; should go personally to take delivery of the child after giving 24 hours notice of his intention to do so. If he is preve...
B. Bindhachal Singh and ors. Vs. Nand Prasad and ors.
Court: Allahabad
Decided on: Dec-16-1926
Reported in: AIR1927All749
1. This order is clearly right. We really have nothing to add to the order of the Additional District Judge, were it not for the perfectly astounding proceedings of the Munsif-but for his benefit, we add a word or two. We give him credit for the best possible motives. He says that the case has become very old, and that there have been several adjournments, and that he cannot adjourn it again. No doubt, he was impressed with the general complaint, which is often made of cases which remain pending too long, and are too easily adjourned. But a Judge ought to hesitate a long time be fore he applies an admirable precept of prompt despatch of work so as to punish, without a scrap of justification, a man who bore not a shadow of responsibility for the accident which had occurred. If third parties carrying out formal and necessary proceedings, under the direction of the Court, happen to be guilty of such delay as to cause necessary adjournments, that cannot be the fault of the parties, and it ...
Bhikham Singh and anr. Vs. B. Bharat Indu and ors.
Court: Allahabad
Decided on: Dec-16-1926
Reported in: 100Ind.Cas.45
1. The lower Appellate Court relied on. Akbar Khan v. Turaban 1 Ind. Cas. 557 : 5 A.L.J. 637 : 31 A. 9 : A.W.N. (1903) 252 : 4 M.L.T. 444. Its attention was not directed to Sheopher Singh v. Deo Narain Singh 17 Ind. Cas. 675 : 10 A.L.J. 413, Kali Prasad Misir v. Harbans Misir 50 Ind. Cas. 767 : 17 A.L.J. 588 and other cases in which it was held that the Revenue Court proceedings gave the plaintiffs a new cause of action. It is agreed by Counsel for the appellants and the respondents both that no question of limitation can, therefore, arise in this case and that the suit must be remanded for decision by the lower Appellate Court on the merits. Ordered accordingly. Costs will abide the result....
Sarju Singh and ors. Vs. Bijai Bahadur Singh and ors.
Court: Allahabad
Decided on: Dec-15-1926
Reported in: AIR1927All254; 101Ind.Cas.287
Walsh, Ag. C.J.1. In our opinion, the Judge's order is technically right according to the strict view of the law. Although in practice the Collector and his sale officers may sometimes take another view, fruit trees are not included in the term 'standing timber.' Fruit trees are undoubtedly other produce of the earth in the colloquial sense of the word, but when one studies the provisions of Section 193, Sub-section (k), the other produce of the earth is clearly meant to be ejusdem generis with growing crops and are clearly mentioned together with growing crops whereas standing timber is not. It is obvious that it was intended to give special rights over standing timber which may be cut down for buildings from time to time, and which may, therefore, be said to be an ambiguous term. It was, therefore, thought by the draftsman necessary to give it a special place in the section. That would seem to indicate that fruit trees were not contemplated. The Small Cause Court Judge refers to the ...
Ram Chandra Bansal and anr. Vs. Lalman and ors.
Court: Allahabad
Decided on: Dec-15-1926
Reported in: AIR1927All329
1. In our opinion this appeal must be allowed. Circumstances alter cases. We are not attempting to lay down an invariable rule that in every case where there is a preliminary decree, notice ought to be issued to the other side before the final decree is passed. But in a case where the other side is absent and the preliminary decree is ex parte, we do lay down the rule. It appears that there is nothing in the Code especially dealing with the matter where, in a case like a partnership or a similar matter, the liability to pay a sum of money depends on the decision of a preliminary point, for example, the existence of the partnership, the issue to be decided in the preliminary decree is quite different from the issue to be decided in the final decree. If the preliminary decree is in favour of the claimant and accounts have to be adjusted then it is quite clear that the matter takes an entirely different aspect and complexion, and that the person whom it is sought to make liable is just as...
Collector of Aligarh Vs. Sm. Ram Devi and ors.
Court: Allahabad
Decided on: Dec-14-1926
Reported in: AIR1927All239
Iqbal Ahmad, J.1. This is a plaintiff's appeal and arises out of a suit brought by the Collector of Aligarh as Manager of the Court of Wards which is in charge of the estate of a particular lambardar under Section 159 of the Tenancy Act, for recovery of arrears of revenue paid to Government by that lambardar on account of the revenue due from the remaining co-sharers of the mahal, all of whom were arrayed as defendants to the suit. The fact that the revenue was paid to Government by the lambardar and that the revenue so paid was due on account of the Share of the defendants admits of no doubt. Over and above the revenue paid, the claim was also for lambardari dues at the rate of 15 per cent. on the revenue payable in respect of the share of the defendants. The suit was decreed by the trial Court and it passed a decree against all the defendants for the entire amount claimed.2. On appeal by the defendants the lower appellate Court has modified the decree of the trial Court in two respec...
Mahomed Shafi Vs. Muhammad Abdul Aziz and ors.
Court: Allahabad
Decided on: Dec-14-1926
Reported in: AIR1927All255
Pullan, J.1. The plaintiffs who are the managers of a mosque brought this suit for a declaration that a certain house is wakf property and not liable to be sold in execution of a decree against the original owner.2. The Court of first instance dismissed the suit on the ground that the wakf is invalid under Mahomedan Law, but the lower appellate Court reversed the finding and decreed the suit.3. The execution of a wakfnamah by Amir-ud-din and his wife Umda on 28th May 1912, is admitted, and they were fully competent to make an endowment of the house to the mosque. We have only to consider whether the endowment so made is valid and complete under Mahomedan Law. The document purports to be a waqf of the house in the name of a certain mosque under the management of punchas, represented by the present plaintiffs, but the executants were to keep their residence in the house up till their death, and after their death the punchas were to have a right to manage the property and spend its income...
Sri Thakurji Vs. Jaikali Kunwar and ors.
Court: Allahabad
Decided on: Dec-14-1926
Reported in: AIR1927All243
Pullan, J.1. These two appeals arise out of a dispute between the riparian owners of villages situated on opposite banks of the river Rapti. Appeal No. 1025 is between the owners of the village of Shergarh and those of the village of Domingarh,and appeal No. 1062 is between the owners of the village of Haraiya on the one side and the owners of the villages of Domingarh and Bahrampur on the other. But no contest now remains between the owners of the village of Haraiya and those of Bahrampur because they compromised the matter in the lower Court. The findings of fact in this case are that up to the year 1300 Fasli the plaintiffs-appellants were in possession of the disputed plots which then lay on the south-west side of the river.2. From the year 1300 to the year 1323 Fasli the land came by gradual accretion into the possession of the owners of the village of Domingarh on the north-east side, of the river. In the year 1324 Fasli by a sudden change of the channel of the river the land was...
Rugghan Prasad and anr. Vs. Mt. Dhanno and ors.
Court: Allahabad
Decided on: Dec-14-1926
Reported in: AIR1927All257
1. The suit out of which this appeal arises was brought by One Basant Lal who is now dead and whose place has been taken on the record by his widow. This Basant Lal, in 1906, executed a deed which he described as a wakf in favour of a temple situated in Sarsuiya Ghat in Cawnpore, in which he re-dedicated certain property which had already been dedicated for the same purpose by his father and grandfather. Under the terms of this deed of wakf two persons had been appointed as mutawallis, Bansidhar and Narain Das. Section 9 of the deed lays down that each member shall have power to appoint his successor,, and if the member dies without appointing his successor, the other member shall appoint another person in his place. Bansidhar died in 1917 and appointed no successor. This suit has been brought after the death of Narain Das on the allegation that, as Narain Das also has died without appointing a successor, the right of appointment has devolved upon the plaintiff, and he has sought a dec...
Hanuman Rai and ors. Vs. Dipan Rai
Court: Allahabad
Decided on: Dec-14-1926
Reported in: AIR1927All793
Iqbal Ahmad, J.1. This is a defendants' appeal and arises out of a suit for redemption of a mortgage, dated 26th April 1869, executed by the plaintiff's father in favour of one Dhanraj Rai, predecessor-in-title of the defendants.2. The suit was decreed by the trial Court conditional on the payment of a sum of Rs. 542-8-0 within a certain time by the plaintiff to the defendants. Both the parties were dissatisfied with the decree with the result that the defendants appealed and the plaintiff filed a cross objection in the lower appellate Court. The lower appellate Court dismissed the appeal filed by the defendants and allowing the cross-objection in part, modified the decree of the trial Court and decreed redemption on payment of Rs. 93.3. The only point urged in support of the appeal by the learned Counsel for the appellants is that on the true interpretation of the terms of the mortgage-deed, the defendants are entitled to interest at the stipulated rate, not only up to the time fixed ...
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