Court : Allahabad
Reported in : AIR1938All418
Bennet, J.1. This is a second appeal by the plaintiff whose suit has been dismissed in the two lower Courts. The case has been referred to a Pull Bench. The facts are that the plaintiff obtained a mortgage deed executed by one Bachnu on 17th April 1923, which is printed on page 15 of the-supplementary record. It is on this document that the plaintiff brings his suit for sale and one of the points found against the plaintiff by the two lower Courts is that this document does not give the plaintiff any right of sale of the property comprised in it. We may before considering this document mention briefly the facts that have taken place in this case. This document was a mortgage, firstly of a house No. 80/10 in Quli Bazar in Cawnpore, of the whole house, and secondly of 6/36 sihams of another house No. 55/69 (present No. 55/79) in Nayaganj. Now the mortgagor Bachnu did not really have this share in the second house but only had 3/36 sihams. This second house was owned by Mt. Idan to the ex...
Tag this Judgment!Court : Allahabad
Reported in : AIR1938All461
Harries, J.1. This is a reference by the learned Munsif of Pilibhit under Order 46, Rule 11, Civil P.C., arising out of an application under the U.P. Agriculturists' Belief Act of 1934. The matter originally came before a Bench of this Court and by an order dated 28th March 1938 that Bench referred the matter to the learned Chief Justice for the constitution of a larger Bench. The case has therefore come before this 1'ull Bench. On 17th July 1934 the judgment-debtors who are admittedly agriculturists as defined in the U.P. Agriculturists' Belief Act entered into an agreement with the decree, holder R.B. Sahu Har Pershad who is the owner of a sugar factory at Pilibhit. By that agreement the decree-holder advanced to the judgment-debtors a sum of Rs. 1086 and such advance is stated to be in the agreement in relation to the sale of sugarcane produce for the year 1342 F. and the area of such sugarcane is specified in the agreement. The judgment-debtors also hypothecated 225 bighas kham of ...
Tag this Judgment!Court : Allahabad
Reported in : AIR1938All529
Iqbal Ahmad, J.1. I confess I have felt some difficulty in deciding this appeal. The difficulty has been partly due to my being unacquainted with the system of land tenures in Kumaun Division and partly to the fact that this is the first pre-emption case that comes before me from that Division. The Agra Pre-emtion Act does not apply to the Kumaun Division and the incidents of the custom of pre-emption prevailing in that Division have to be gathered mainly, if not wholly, from a book by Mr. Stowell styled as 'A Manual of the Land Tenures of the Kumaun Division.' Even in this book, the alleged custom of preemption prevailing in Kumaun Division is not set forth in sufficient detail and the observations of the learned author on the point do not furnish an infallible guide in the decision of the appeal before me. Lastly the difficulty in deciding the appeal has been occasioned by the fact that it is impossible to ascertain with reasonable certainty the findings that the learned Judge of the...
Tag this Judgment!Court : Allahabad
Reported in : AIR1938All471
Rachhpal Singh, J.1. This is a defendants' second appeal arising out of a suit for possession. The facts which have given rise to this appeal can briefly be stated as follows: On 17th August 1922, defendants 2nd party executed a mortgage deed for Rs. 1500 in favour of one Kunj Behari Lal in respect of the property in suit. Kunj Behari Lal obtained a final decree on foot of his mortgage in 1929. He put the mortgaged property to sale and himself purchased it at an auction sale on 20th August 1930.2. On 18th August 1931, the plaintiffs in the present suit purchased the property in suit from the mortgagors of Kunj Behari Lal. Under the terms of the sale deed, the plaintiffs were to pay in the decree money due to Kunj Behari Lai. The plaintiffs made an application to the Court which had sold the property in execution of Kunj Behari Lal's decree under Rule 89 of Order 21, Civil P.C., for setting aside the sale. The Court dismissed the plaintiffs' application. They preferred an appeal and the...
Tag this Judgment!Court : Allahabad
Reported in : AIR1938All502
Bajpai, J.1. This is a reference by the Munsif of Tilhar through the District Judge of Shahjahanpur on two questions of law on which the Court below entertains a reasonable doubt and they have been sub-mitted to us for our opinion. The facts are that one Kalyan Singh held a simple money decree, No. 939 of 1929 of the Small Cause Court of Tilhar against Ajudhia Prasad. The first application for execution of the decree was made on 11th March 1932, and the application which has given rise to the present reference is an application for execution dated 19th March 1937, and execution is sought by attachment and sale of the agricultural produce of Ajudhia Prasad, the judgment-debtor. Presumably the decree has been kept alive. Ajudhia Prasad has objected, and his contention is that he is an agriculturist within the meaning of the U.P. Agriculturists' Relief Act, Local Act 27 of 1934, and under Section 6 no decree passed by a Civil Court against an agriculturist shall be executed by attachment ...
Tag this Judgment!Court : Allahabad
Reported in : AIR1938All508
Allsop, J.1. This second appeal arises out of a suit for damages for wrongful attachment. The defendant-appellant Qaim Husain attached a crop belonging to one Jasan on 5th October 1932 in execution of a decree against him. The defendant-respondent Rahmatullah was appointed to take charge of the produce of the crop. I understand that the crop was reaped and put on the threshing-floor. An objection to the attachment was taken by Pirbhu Lal plaintiff-respondent who alleged that the crop had been sold to him on 8th September 1932. It was eventually found that Pirbhu Lal's allegation was correct. In the meanwhile, the crop had again been attached in order to meet a demand for canal dues. This attachment was presumably made under the orders of the Collector. Under the provisions of Northern India Canal and Drainage Act, arrears of canal dues can be recovered in the same way as arrears of land revenue. Pirbhu Lal after obtaining a decree or order that the property had been wrongfully attached...
Tag this Judgment!Court : Allahabad
Reported in : AIR1938All473
Iqbal Ahmad, J.1. This appeal arises out of a suit for sale brought by the Benares Bank Limited, Benares, hereinafter referred to as the plaintiff, on the basis of a security bond dated 20th December 1926, executed by Maharaj Kishore Khanna, defendant 3. It appears that a sum of Rs. 1,50,000 was due to the plaintiff from defendant 3 and his nephew, B. Krishna Chandra Khanna, and on 20th December 1926 Krishna Chandra Khanna executed a promissory note with respect to this sum of Eupees 1,50,000 in favour of the plaintiff. By the security bond, defendant 3 stood surety for his nephew Krishna Chandra Khanna and guaranteed payment to the plaintiff of the sum due on the basis of the promissory note. To secure the payment of the amount due to the plaintiff charge was created by defendant 3 on two items of zamindari properties, one situated in the District of Benares and the other in the Province of Bihar and Orissa. These very properties were subject to a prior mortgage in favour of the Allah...
Tag this Judgment!Court : Allahabad
Reported in : AIR1938All464
Thom, C.J.1. This is a reference by the Commissioner of Income-tax under Section 66(2), Income-tax Act of 1922. Two questions are submitted to the Court for decision. These questions are:(1) In the circumstances of the case, (a) is the item of Rs. 1,04,000 liable to tax as income accruing and arising in British India within the meaning of Section 4(1) of the Act or (b) constitutes receipts falling under Section 4(3)(vii) of the Act and hence exempt?(2) If the answer to part (a) of question (1) is in the affirmative and to part (b) in the negative, was the Assistant Commissioner justified in holding that the item must be deemed to have been paid to the assessee on the day he deposited the sum of Rs. 26,000 representing the difference between the poundage and the commission?2. The matter came before a Bench on 15th January 1937. In view of a decision of another Bench of this Court in In re Gaya Prasad Chhote Lal : AIR1935All495 the case has been referred to a larger Bench for considerati...
Tag this Judgment!Court : Allahabad
Reported in : [1938]6ITR434(All)
This is a Reference by the Commissioner of Income-tax under Sec. 66(2) of the Income tax Act of 1922.Two questions are submitted to the Court for decision. These questions are :-(1) In the circumstances of the case, (a) is the item of Rs. 1,04,000 liable to tax as income accruing and arising in British Indian within the meaning of Sec. 4(1) of the Act, or (b), constitutes receipts falling under Sec. 4(3) (vii) of the Act and hence exempt ?(2) If the answer to part (a) of question (1) is in the affirmative and to part (b) in the negative, was the Assistant Commissioner justified in holding that the item must be deemed to have been paid to the assessee on the day he deposited the sum of Rs. 26,000 representing the difference between the poundage and the commission ?The matter came before a Bench of January 15, 1937. In view of a decision of another Bench of this Court, In re Gaya Prasad and Chotey Lal, the case has been referred to a larger Bench for consideration and decision.The facts ...
Tag this Judgment!Court : Allahabad
Reported in : AIR1938All519
Iqbal Ahmad, J.1. This is an appeal by a plaintiff whose claim for pre-emption has been dismissed by both the Courts below. On 2nd August 1933, defendants 1 to 3 executed a document purporting to be a deed of usufructuary mortgage in favour of defendant 4, for a sum of Rs. 1000. The plaintiff's case was that the transaction evidenced by the said document was really one of sale, and that the document was described as a deed of mortgage simply with; a view to defeat the plaintiff's right of pre-emption. The plaintiff further alleged that, the real consideration was Rs. 500 and not Rs. 1000. Defendant 4 contested the suit inter alia on the allegation that the, transaction sought to be pre-empted was really one of mortgage and not of sale, and as such the plaintiff had no right of preemption. Secondly, defendant 4 maintained that the consideration entered in the deed was the real consideration. On the question of consideration both the Courts have recorded findings in favour of defendant 4...
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