Allahabad Court February 1929 Judgments
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Mushtaq Ahmad Vs. Musammat Afzal Begam and
Court: Allahabad
Decided on: Feb-26-1929
Reported in: 117Ind.Cas.820
Dalal, J.1. I was a party to the Bench ruling of this Court which has been quoted by the learned Judge of the lower Appellate Court in support of his opinion [Collector of Moradabad v. Mohammad Hidayat Ali Khan 0065/1926 : AIR1926All449 ]. I have there stated in detail how that case was distinguishable from the Privy Council case of Sri Gopal v. Pirthi Singh 24 A. 429 : 29 I.A. 118 : 4 Bom. L.R. 827 : 6 C.W.N. 889 : 8 Sar. P.C.J. 293 (P.C.). The owner of the property was Ejaz Husain who made several mortgages which taken in order are these:22nd December, 1921, to Deokinandan.21st January, 1922, to Ram Saran Das, and.10th March, 1922, to Afzal Begam. 2. The last mortgage was executed to pay off the debt of Deokinandan and the mortgage of Deokinandan was paid off the very next day on the 11th of March, 1922. On the 13th of March, 1924, Ram Saran Das sued for sale on foot of his mortgage of 21st January, 1922, making besides the mortgagor both Deokinandan and Afzal Begam parties (defendan...
israr Hasan Khan and anr. Vs. Deo Narain
Court: Allahabad
Decided on: Feb-25-1929
Reported in: AIR1929All372
Dalal, J.1. The judgment of the learned Subordinate Judge, though lengthy, is a, creditable performance. He has rightly brushed aside questions as to the joinder and non-joinder of parties. It would have been better and shortened his judgment if he had not directed his mind to whether Government, the owner of the road, was a necessary party or not. In my opinion he has arrived at the truth of the matter that when Deo Narain entered into this agreement the conditions were such that he should not be tied down to specific performance of this contract. He has rightly quoted Section 22, (1), Specific Relief Act:Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff's part, the Court may properly exercise a discretion not to decree specific performance.2. The matter may be very shortly put There was communal trouble in the town of Jalalabad in the Sha...
Municipal Board Vs. Khalil-ul-rahman
Court: Allahabad
Decided on: Feb-25-1929
Reported in: AIR1929All382
Ashworth, J.1. This second appeal arises out of a suit brought by the plaintiff-respondent against the defendant-appellant for an injunction, restraining the defendant from allowing the margin of a public road to be used by traders for the vend of merchandise. The plaintiff owns a shop and also an open space in front of that shop. This open space borders a public road. The defendant is the Municipal Board of Pilibhit. By a bye-law, passed on 27th June 1917, the Municipal Board signified its intention to let out the spaces at the sides of roads to hawkers, and it has allowed hawkers to stand or sit and sell their goods on the side of the road in question. This prevents the public having free access to the shop booths allowed by the plaintiff on his vacant strip of land, and hence this suit.2. The trial Court found that the plaintiff had failed to prove that the public had enjoyed for 20 years free access from the road to this piece of land. It also found that the suit was barred by limi...
Umrao Singh and ors. Vs. Sultan Singh and anr.
Court: Allahabad
Decided on: Feb-25-1929
Reported in: AIR1929All384
1. This is a defendants appeal arising out of a suit for redemption of a mortgage dated 17th February 1909. The defendants contested the suit on two grounds only. Firstly, that there was a previous mortgage of 11th April 1865 without redeeming which, the plaintiffs were not entitled to take possession of the property; secondly, that under a clause in the mortgage deed the plaintiffs were bound to pay all the arrears remaining outstanding against the tenant before redemption. The bond dated 11th April 1865 is printed at p. 15. No specific property is expressly mentioned there in but it is recited that the mortgagor would not have the right to redeem a property previously mortgaged to the mortgagee until the amount due under this bond was paid with interest. Even the date of the previous mortgage deed is not mentioned in the deed. It is impossible therefore to trace the property. All we know is that there was some share of the mortgagor in mauza Hasan Alipur Bisai but we do not know the ...
G. Atherton and Co. Vs. S. Habib Baksh
Court: Allahabad
Decided on: Feb-25-1929
Reported in: AIR1929All390
Sulaiman, J.1. This is an appeal by the decree-holder arising out of an execution proceeding. It appears that on 7th March 1922, the Bombay High Courts on the original side passed a decree for a sum of money against S. Johnson and Co. That decree was transferred for execution to the Jhansi Court and an application for execution of that decree was filed by the decree-holder on 25th September 1922. The decree was sought to be executed against Habib Bakhsh, who was described as son and heir of Rahim Bakhsh, alleged to be a former partner of S. Johnson and Co. An objection was raised on behalf of Habib Bakhsh that the decree was a nullity inasmuch as the suit had been instituted at a time when the sole partner Rahim Bakhsh was dead. The execution Court at Jhansi on 13th December 1923, held that Rahim Bakhsh was the sole proprietor of the firm known as S. Johnson & Co., and that he was dead on the date of the institution of the suit at Bombay. The application for execution was accordingly d...
Khuda Baksh Vs. Jai Shankar and ors.
Court: Allahabad
Decided on: Feb-25-1929
Reported in: AIR1929All386
Ashworth, J.1. This second appeal arises out of a suit brought by the plaintiff-respondents as zamindars of a village for the removal of a dead body from certain land against the defendant-appellant. It appears that the father of the appellant had a house in the village and used to sit on a bit of vacant land in front of it. He expressed a desire to his son that he should be buried there, and the son did bury him there during the absence from the village of the zamindars. This suit was resisted on the ground that the place where the grave was made was within the area of the site granted in the abadi to the defendant's father, and that in any case the zamindars had acquiesced in the making of the grave and the burial, their present suit being dictated by some disagreement which had subsequently arisen. Both the Courts have found that the land was vacant land and not subject to any title of the defendant. They have also found that there was no acquiescence on the part of the Zamindars ev...
Sri Ram Lakshman Janki and ors. Vs. Ram Gopal and ors.
Court: Allahabad
Decided on: Feb-25-1929
Reported in: 117Ind.Cas.106
1. This is a plaintiffs' appeal arising out of a suit for pre-emption.2. On the 29th of June, 1925, Ram Singh, defendant No. 3, sold his zemindari shares in two villages, namely, Bipauri and Gujaini to Ram Gopal and Har Mohan defendants Nos. 1 and 2 for Rs. 300. The plaintiffs claiming to be the co sharers with the vendor instituted the present suit for preemption on the allegation that the real sale consideration was Rs. 200. The Courts below held that the right of pre-emption existed in village Bipauri but the custom of pre-emption was not proved with reference to village Gujaini. The plaintiffs' claim, therefore, for village Gujaini was dismissed.3. The sole question in this appeal is whether there is a record of pre-emption with reference to village Gujaini within the meaning of Section 5 of the Agra Tenancy Act (Act II of 1922).4. The plaintiffs rely on a wajib-ul-arz dated the 15th of September, 1873, which recites as follows:--Up to the present time there have been no suits of p...
Makhan Lal Vs. NaraIn Das and anr.
Court: Allahabad
Decided on: Feb-22-1929
Reported in: AIR1929All376
Dalal, J.1. The question in dispute relates to execution sought by the decree-holder against a surety who became a surety under the provisions of Section 55(4), Civil P.C. On 29th March 1927 the judgment-debtor Bindraban was produced before the execution Court under arrest and he was released on Narain Das standing surety for him according to statute (1) that the judgment-debtor will apply to the insolvency Court within one month of the date of release and (2) that the judgment-debtor will appear when called upon to do so.2. The lower appellate Court has suggested that the vernacular security bond is not in these terms, but that is not a point for consideration because the surety ought to have known the law and what he contracted for under the law. Application for insolvency was not made within one month and so there certainly was default. It was represented on behalf of the respondent surety that the Court had extended time for making this application. There was no such extension of t...
Ghasi Khan Vs. Thakur Kishori Ramanji Maharaj and ors.
Court: Allahabad
Decided on: Feb-22-1929
Reported in: AIR1929All380
1. This is a defendant's appeal in a suit for sale on a mortgage of 31st July 1910 executed by the appellant and Zabar Khan in favour of the respondent. The defence to the suit by the appellant among others was that the claim of the plaintiff was barred by limitation and that no money had passed to them.2. The mortgage was for a term of six years, and it was provided in the deed that upon failure of payment of interest for one year the mortgagee would be entitled to recover the whole of the mortgage money without waiting for the expiry of his stipulated time. It is, therefore, clear that no interest having been paid for one year the mortgagee was entitled to recover the money by suit on foot of the mortgage. The present suit having been brought after 12 years from that date the claim of the plaintiff must be held to be barred unless the plaintiff proved either payment of interest or principal, or claimed that the suit was not barred by reason of an acknowledgment. The plaintiff claimed...
Afzal HusaIn Vs. Huran Bibi and ors.
Court: Allahabad
Decided on: Feb-22-1929
Reported in: AIR1929All398
1. This is a plaintiff's appeal arising out of a suit for pre-emption. The widow of Abdul Karim acting for herself and as guardian of her minor daughter sold a half-share in 10 bighas 19 biswas zamindari property belonging to her deceased husband ostensibly for a sum of Rs. 1,250. It appears that previously the widow had applied to the District Judge for permission to sell the share of her minor daughter and that permission was refused. The present plaintiff filed this suit for pre-emption and alleged that the widow had no power to sell more than one-eighth share which the plaintiff stated was owned by her. In para. 11 of the plaint it was specifically mentioned that the sale in respect of more than one-eighth share was unlawful. Then in para. 13, the plaintiff offered to pre-empt that portion of the property sold which the Court held was valid according to law and added that if the sale of the whole half-share was found to be valid he was prepared to pre-empt the whole. In para. 16 he...
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