Court : Chennai
Reported in : (1883)ILR6Mad88
Innes and Muttusami Ayyar, JJ.1. The question in this second appeal is whether plaintiff's registered sale-deed in 1878 renders defendant's attachment in execution of the decree in Suit 53 of 1879 on an unregistered hypothecation-deed of 1872 inoperative under the provisions of Section 501 of the Registration Act and whether the attachment ought to he removed ?2. Had defendant's document been opposed to plaintiff's document in the suit of 1879, there can be no question that, under the provisions of Section 50 of the Registraticn Act, plaintiff's document would have taken effect against defendant's document.3. Indeed, the operation of registered documents against unregistered documents is an operation which takes effect from the moment of execution (Section 472), and, therefore, from 4th July 1878, the date of the plaintiff's sale-deed, defendant's hypothecation-deed ceased to have operation as regards the property comprised therein. Can the decree in Suit 53 of 1879, to which plaintiff...
Tag this Judgment!Court : Chennai
Reported in : (1883)ILR6Mad90
Charles A. Turner, Kt., C.J. and Muttusami Ayyar, J.1. In our judgment this suit can be maintained.2. The plaintiff is entitled to sue for partition of the lands, though he cannot, without the consent of the Government, put an end to his joint liability for the entire quit-rent.3. He must implead all raiyats whose rights he questioned in order that the nature of their interests may be ascertained, so that an equitable' partition may be carried out, but he need not implead other raiyats whose rights and privileges are unquestioned.4. The partition must be carried out by the Collector, and, therefore, when a preliminary decree has been made, it would be sent to the Collector, and, when partition is concluded by the Collector the final decree would be prepared.5. The decree of the Lower Appellate Court is set aside and the case remanded for re-trial. The parties will bear each their own costs of this appeal....
Tag this Judgment!Court : Chennai
Reported in : (1883)ILR6Mad148
Kernan, J.1. Mr. Gopalachari contends for plaintiff that the revenue sale was fraudulent, as no arrears were due and the sale to the officer who bought for Government was not a valid sale, but merely nominal, and the tenant had still the right to the lands as no arrears were due. That the Collector did not comply with the directions in Sections 38 and 39 of the Revenue Recovery Act, and therefore the sale was not confirmed or concluded as provided by Sections 38 and 39 of the Revenue Recovery Act. That although this may not be so, still the sale was fraudulent, and, as the Judge found that plaintiff was not aware until 1879 that there were no arrears due at the sale, and thus was not aware of the fraud, plaintiff has three years under Article 951 of Schedule II of the Limitation Act, 1877, to bring his suit from the discovery of the fraud, or, at all events, one year from that time.2. Mr. Bhashyam Ayyangar for the fourth defendant urges that Article 12(c)2 of the Limitation Act, 1877, ...
Tag this Judgment!Court : Chennai
Reported in : (1882)ILR6Mad74
Charles A. Turner, Kt., C.J.1. The instrument of mortgage in this case is not on all fours with the instrument which was the subject of this Court's decision in Perlathail Subba Ban v. Mankude Narayana I.L.R. 4 Mad. 113. It provided that the mortgaged lands should be made over to the mortgagee for cultivation; that a grain rent, estimated at a certain quantity, should be retained yearly in lieu of interest by the mortgagee, and that on the expiry of any year the mortgage might be redeemed and possession recovered on payment of the principal.2. This instrument falls within the purview of Regulation XXXIV of 1802. The Lower Courts have held that an account must be taken of the value of the grain rent, and the mortgagor credited with any surplus which may be found in excess of interest at the rate of 12 per cent. The mortgagor has accepted the decree, which awards him certainly not more than he is entitled to claim.3. The amendment of the plaint was not improperly allowed.4. I would dismi...
Tag this Judgment!Court : Chennai
Reported in : (1883)ILR6Mad114
Charles A. Turner, Kt., C.J. and Kindersley, J.1. The 9th section of the Act, declaring the office of a member of a committee appointed under the Act to be tenable for life if in the meantime he should not be guilty of misconduct or become unfit to exercise the duties of his office, was intended to create a right in favour of such member and not to deprive him of the liberty of retiring from office. We hold that the appellant in Civil Revision Petition 108 of 1882 had the same liberty to resign his office as he would have had to decline election. The office was then vacant. It is said that due notice was given of the vacancy and an election was held; but the voters were not numerous, because the persons entitled to be placed on the register had not taken the steps it was incumbent on them to take to qualify themselves. This would not invalidate the election. Unless, on other grounds, the election of Laksmi Narasayya is invalid, the Judge has no power to act, and in that case he can onl...
Tag this Judgment!Court : Chennai
Reported in : (1883)ILR6Mad103
Charles A. Turner, Kt., C.J. and Innes, J.1. The judgment of the Judge implies a doubt whether a right of superintendence has been enjoyed by either party, but, assuming the existence of the right is established, there is, it appears to us, a material defect in the Judge's judgment in that it omits any reference to the alleged custom that the succession to the superintendence of mosques is governed by Marumakkatayam law. This custom was asserted and made the subject of an issue, and the Munsif refers to evidence which, if accepted, would have warranted the conclusion that the custom obtained in Ponani. If it were shown that the custom obtained, or that the usage was so general as the witnesses allege, the evidence of the witnesses who have deposed to the title of the plaintiff's tarwad would be greatly strengthened. The judge is doubtless right in holding that the circumstance that other property of the founder descended according to Makkatayam law affords a persumption that any right ...
Tag this Judgment!Court : Chennai
Reported in : (1883)ILR6Mad83
1. This appeal arises from a suit for maintenance instituted by the respondent, a childless Hindu widow and a member of the appellant's family. The appellant is the zamindar of Nilapalli and Gutala and other villages in the Godavari District. The appellant's husband was the last male owner, and, upon his death on the 25th April 1875, appellant succeeded to the zamindari. Shortly after, a disagreement arose between the appellant and the respondent, and the latter left the family residence at Yanam, a town under the French Government, and has since resided in British territory. On the 7th April 1880' she brought the present suit and claimed maintenance, together with arrears, from the 1st January 1876 at Rs. 850 per mensem. She prayed also that a tiled house at Georgepetta, belonging to the joint family, might be set a/part; for her residence, and that part of the family property described, in the schedule attached to the plaint might be declared to be liable for her maintenance. She fur...
Tag this Judgment!Court : Chennai
Reported in : (1882)ILR6Mad63
Innes, Officiating C.J.1. These are applications to the High Court to order the admission to bail of certain persons arrested and detained in the Central Jail of Salem on serious charges of offences connected with the late riots at Salem on the 15th and 16th August last, and also for transferring the inquiries. and trials to another district.2. We have heard Mr. Grant on behalf of the accused persons and the Government Pleader (Mr. Shephard) who opposed the applications on behalf of the Government.3. It was argued by Mr. Shephard that we had no authority to take cognizance of such an application, as it was not a judicial proceeding, but, we think, there can be no question that we have the power to do what is asked, should the Magistrate's proceedings prove to be illegal, and the power has been exercised in numerous cases by the High Courts in the several Presidencies. The proceeding in which it is or has to be determined whether bail should be taken falls within the definition of a jud...
Tag this Judgment!Court : Chennai
Reported in : (1884)ILR6Mad32
Innes, Officiating C.J.1. This is an application in which we are asked to transfer the appeal of one Sitapathi Nayudu from the Court of the Sessions Judge of North Arcot to the High Court, and we have heard Mr. Gould, who makes the application, and the Government Pleader, Mr. Shephard, upon the question of our power to make the transfer. The Government Pleader intimated that, if the Court has the power, he was not instructed to oppose the exercise of the power, but he contended that it was not conferred either by the Criminal Procedure Code or by the Letters Patent.2. Under Section 64* of the Criminal Procedure Code the High Court has authority to transfer a criminal case or appeal from any Criminal Court subordinate to it to any other such Court (i.e., Subordinate Court) of equal or superior jurisdiction. It may also transfer a case for trial before itself. But it is clear, as Mr. Shephard contends, this transfer for trial is confined to cases which fall under the definition of the wo...
Tag this Judgment!Court : Chennai
Reported in : (1883)ILR6Mad140
1. At the hearing of the second appeal, which was on the 8th February of this year, we were not aware and were not informed of the decision of the Chief Justice and Mr. Justice KlNDERSLEY in Kunhamu v. Keshavan Nambudri I.L.R. 3 Mad. 246.2. That is a decision by the Chief Justice and Mr. Justice KINDERSLEY that there is no authority to support a kanamdar's claim to be allowed to make further advances before the jenmi is entitled to demise the land to another tenant on kanam or otti.3. Had we been aware of this decision, we should probably not have thought it necessary to remit the issue, as the point was directly in question in that suit and disposed of.4. Mr. Sankaran Nayar indeed took the distinction that in the case referred to, the demise taken by plaintiff to whom the jenmi had let the land without calling on the kanam-holder to exercise the option of making further advances, was an otti demise, but the only difference between an otti and a kanam-holder is that the former makes hi...
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