Court : Chennai
Reported in : (1883)ILR6Mad167
Kindersley, J.1. The defendant in this case borrowed Rupees 10 promising in the following terms to repay the amount: 'I shall return the said Rupees 10 within fifteen days from the present date. Should I fail to pay it at the said time, I bind myself to pay at the rate of 1 anna per rupee per diem from this date.' No interest was payable if the principal had been repaid in fifteen days.2. The first question is whether the high rate of interest payable in default of payment of the principal within fifteen days is to be regarded as a penalty to secure prompt payment. Such was the explanation given by the plaintiff in his deposition. He said, 'I demanded the said interest for the purpose of payment being made according to time.' And the explanation seems probable, seeing that the defendant was a poor man, to whom it would not have been safe to lend money as an investment. And by the terms of the document the high rate of interest in default of payment in fifteen days would commence, not f...
Tag this Judgment!Court : Chennai
Reported in : (1883)ILR6Mad80
Innes and Kindersley, JJ.1. It appears to us that the original of the plaint having been destroyed, it was open to the Court to admit secondary evidence of the document by a production of an uncertified copy.2. We think the clause of Section 65 of the Evidence Act, which provides that 'In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible,' applies to the case in which the public document is still in existence on the public records, and is a provision intended rather to protect the originals of public records from the danger to which they would be exposed by constant production in evidence, than to interfere with the general rule of evidence given in Clause (c) of the same section that secondary evidence may be given when the original has been destroyed or lost. Evidence was taken to ascertain that the plaint was a true copy of the original, and there seems, therefore, to be no substantial ground for the objection to the admissibil...
Tag this Judgment!Court : Chennai
Reported in : (1883)ILR6Mad98
Innes and Kernan, JJ.1. The petitioner put in a claim to property attached in Original Suit 12 of 1877 and an order was passed in his favour releasing the property. The respondent brought a suit to have the property declared to be attachable under his decree, and it appears that two Courts have determined in respondent's favour. The petitioner has appealed to the High Court and the contention is that the concluding language of Section 283, Civil Procedure Code, precludes the execution of the decree by sale of the property pending the final result. But if this consequence followed upon an order under Section 283, the effect would be that Section 283 would work an exception to the procedure laid down in Section 545. If this had been intended, we think there would have been some special provision to take such cases out of the rule laid down in Section 545.2. The effect of the decree in the suit is to declare the property attachable and in effect it sets aside, until altered by a decree in...
Tag this Judgment!Court : Chennai
Reported in : (1883)ILR6Mad117
1. The appellant is admittedly the owner of the property in suit, from which he sued, to eject the respondent, alleging that he had been let into possession of a portion under a lease of which the term had expired, and had encroached on the residue under colour of his lease. The evidence on which the appellant sought to establish his averment respecting the lease has been held to be fabricated.2. The respondent pleaded, and the Courts below have found, that he obtained possession of the whole estate in virtue of a mortgage for Rs. 1,000 and a second mortgage for Rs. 50 on the 22nd of July 1865.3. The mortgage for Rs. 1,000 was executed after the Registration Act of 1864 came into force but was not registered.4. The respondent's Pleader contends that, although this instrument could not be produced in evidence, he is entitled to prove it by secondary evidence, namely, an admission contained in the second mortgage-deed, and that the instrument, though it could not be given in evidence, wa...
Tag this Judgment!Court : Chennai
Reported in : (1883)ILR6Mad121
Innes, J.1. The appeal is concerned only with the lands Nos. 1 and 2. As to these, the plaintiff claimed them as having been purchased by his illam in 1852. He said that the illam was in possession till 1878, when he was dispossessed in execution of the decree in Original Suit 656 of 1876, a suit against his elder brother, to which he was not a party.2. The District Munsif decreed as to portions of these numbers for plaintiff. On appeal to the District Court, that Court held that plaintiff was bound by the decree in Suit 653 of 1876 against his elder brother, and dismissed plaintiff's suit.3. On appeal to the High Court, that Court (KERNAN and Forbes, JJ. held that plaintiff was not bound by that former decree, as he was no party to it, and remanded the suit for re-trial.4. The District Munsif on re-trial has dismissed plaintiff's suit as to Nos. 1 and 2. On appeal, the District Judge has found that the former decision in the suit of 1876 was wrong on the merits, and has held plaintiff...
Tag this Judgment!Court : Chennai
Reported in : (1883)ILR6Mad76
Innes and Kindersley, JJ.1. The question in this appeal is--whether an alienation by a, pujari of his office is one which can be recognized as legal ?2. First and second defendants, two brothers, acquired jointly in 1869 certain rights of performing puja. in certain temples. They are undivided, but they enjoyed this right severally, each, as is found, taking his turn of performance of the office in accordance with arrangements made by them.3. On the 12th October 1878 the first defendant sold his right to plaintiff,, who instituted the suit out of which this second appeal arises to enforce the right thus transferred to him, as, since the purchase, the defendants had prevented his enjoyment of it.4. The District Munsif found in favour of plaintiff against the contention of the second defendant that the enjoyment of the office by his brother was joint, and that he had never enjoyed the specific right of seven and a half days puja which he had pretended to dispose of to plaintiff, and that...
Tag this Judgment!Court : Chennai
Reported in : (1883)ILR6Mad170
Kernan and Kindersley, JJ.1. The respondent was arrested and brought before the Sadr Amin and made an application under Section 273 of Act VIII of 1859 for discharge from arrest.2. The application was made on the 21st of June 1871, and, on that occasion, the respondent made a deposition, which he subscribed, and set out his property in detail, and stated he was willing to place it at the disposal of the Court. Thereupon, the Judge made an order to release him. The order states that the petitioner's Vakil elected to proceed against the property. This statement does not interfere with the legal effect of the order for release made upon compliance by the respondent with the provisions entitling him to release.3. No doubt, the respondent might, after that order, have been re-arrested, if it was shown he committed any of the acts mentioned in Section 275 before the order for release was made. The Act provides that, if the release was obtained by deceiving the Court, or if the debtor has, be...
Tag this Judgment!Court : Chennai
Reported in : (1882)ILR6Mad37
Innes, Kernan, and Muttusami Ayyar, JJ.1. The facts are as follow : On the 15th April last, some cartmen going from Dharmapuri to Morapur drove their carts along an old road, probably with intent to avoid payment of toll which they would have had to pay if they had taken the more usual road, where a toll-gate is maintained. The toll-collector caught these men at a point about a mile beyond the toll-gate and demanded toll, but payment was refused. He therefore attached the bullocks, one for each cart, but the cartmen rescued the bullocks and drove away. The toll-contractor thereupon lodged a complaint before the Second-class Magistrate of Dharmapuri, accusing them of having taken away the animals he had attached.2. The Second-class Magistrate dismissed the complaint under Section 147, Criminal Procedure Code, on the ground that the carts did not pass through the toll-gate, that the cartmen were at liberty to travel by any way they pleased, and that it was not lawful for the contractor t...
Tag this Judgment!Court : Chennai
Reported in : (1883)ILR6Mad155
Innes, J.1. The third defendant, a creditor of first and second defendants, who were respectively the father and brother of the plaintiff's, sued first and second defendants and obtained a decree against them. In execution of the decree he attached the family property, and plaintiffs came forward and objected that they were not parties to the suit and applied for the release of their shares, from attachment. The order passed by the Court executing the decree practically allowed their claim for it confined the sale to be held to the right, title, and interest 1 of the first and second defendants. Third defendant became, the purchaser.2. He managed to get into possession of the whole notwithstanding the order ! passed, and plaintiffs then brought this suit to recover their shares of the property.3. The Munsif gave a decree for plaintiffs. The Subordinate Judge thought the decree and execution bound the plaintiffs, as the debt of the father ' was incurred in trade for the family, and dism...
Tag this Judgment!Court : Chennai
Reported in : (1883)ILR6Mad97
Innes and Muttusami Ayyar, JJ.1. We are of opinion that Section 265*, Civil Procedure Code, does not apply to property held on raiyatwari tenure, but to permanently-settled estates.2. As to the other grounds of appeal, we think that the Acting District Judge Mr. Turner, ought not to have disposed of the appeal without considering the grounds of appeal put forward by the appellant. It is objected that he did not consider them, and the judgment, which is very brief, appears to indicate that he failed to give attention to the several reasons set out by appellant on which the propriety of the Munsif 's judgment was alleged to be open to question.3. We shall set aside the order of the late Acting District Judge and remand the appeal for rehearing. The costs will be costs in the cause.* Partition of estate or separation of share.[Section 265: If the decree be for the partition or for the separate possession of a share of an undivided estate paying revenue to Government, the partition of the ...
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