Chennai Court April 1892 Judgments
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Chathu Vs. Virarayan
Court: Chennai
Decided on: Apr-11-1892
Reported in: (1892)ILR15Mad491
1. It is conceded that, if secondary evidence of the contents of the document filed as Exhibit VIII in Original Suit No. 747 of 1878 on the file of the District Munsif of Calicut is admissible under Section 19 of the Limitation Act, the present claim will not be barred, but it is contended that, on the true construction of paragraph 2 of Section 19, such evidence is not admissible, even though the document may be lost, destroyed or even withheld by the opposite party. We are unable to accept this contention. We agree with the Calcutta High Court for the reasons mentioned in Shambhu Nath Nath v. Bam Chandrashaha I.L.R. 12 Cal. 267, that Section 19 of the Limitation Act must be read with Sections 65 and 91 of the Evidence Act and that it does not exclude secondary evidence of contents of documents in cases in which such would be admissible under Section 65,2. This second appeal fails therefore and is dismissed with costs....
Kizakini Akath Abdul Rakmian Naha Vs. Kizakini Akath Mahomed Naha
Court: Chennai
Decided on: Apr-08-1892
Reported in: (1892)2MLJ188
1. The object of S 99 is, as stated by the Indian Law Commissioners of 1879 in their report dated 15th November 1879, to check the practice on the part of mortgagees of suing their mortgagors on the debts as such, and in execution selling their mortgagors' interests in the property and thus defrauding purchasers, who were strangers to the mortgages, by enforcing the security against the property, of the existence of which security they were kept in ignorance.2. In the present case the decree sought to be executed has authorized the sale of the mortgaged property, and it is sought to sell the same subject to the other mortgage of which the decree-holder has obtained the assignment. We see nothing in the language of Section 99 to justify a refusal of execution till the decree-holder obtains a decree on that other mortgage3. We must therefore set aside the order of the learned judge and restore that of the District Judge,4. Respondent must pay appellant's costs in this Court....
Appandai and anr. Vs. Srihari Joishi
Court: Chennai
Decided on: Apr-08-1892
Reported in: (1893)ILR16Mad451
1. It has been held in Velli Periya Mira v. Moidin Padsha I.L.R. 9 Mad. 332 that Section 622 of the Code of Civil Procedure is not applicable to orders passed under Act VIII of 1865 (Madras). Moreover Section 76 of that Act expressly provides that no judgment of a Collector and no order passed by him after decree and relating to execution thereof shall be open to revision otherwise than by appeal. The order of the learned Judge must, therefore, be set aside. But under the circumstances there will be no order as to the costs....
Pudia Purayil Ibrayen Kanhi Vs. Pudia Purayil Komamutti Koya and ors.
Court: Chennai
Decided on: Apr-07-1892
Reported in: (1892)2MLJ255
1. The question which we have to decide in this case is, how is a suit brought by one of the members of a Malabar tarwad to obtain a declaration of his status as a member of that tarwad to be valued for purposes of jurisdiction. The tarwad concerned in this litigation consists of 30 members including the plaintiff, and the value of its property is Rs. 26,605. According to the Marumakkatayam usage, no member of a tarwad can enforce a partition of tarwad property at his pleasure though such partition can be made with the consent of all its members. In the case before us, the Subordinate Judge held that the value of the share which would ordinarily be allotted to the plaintiff if a partition were effected by common consent, viz., Rs. 886-13-4 was the value of the present suit and that he had no jurisdiction to entertain it and in support of his opinion he relied on the decisions of the High Court in S. A. No. 442 of 1883 and in Regular Appeals 135 of 1885 and 131 of 1886. It is contended ...
ibrayan Kunhi Vs. Komamutti Koya and ors.
Court: Chennai
Decided on: Apr-07-1892
Reported in: (1892)ILR15Mad501
1. The question, which we have to decide in these cases, is how is a suit brought by one of the members of a Malabar tarwad to obtain a declaration of his status as a member of that tarwad to be valued for purposes of jurisdiction. The tarwad concerned in this litigation consists of 30 members, including the plaintiff, and the value of its property is Rs. 26,605. According to the Marumakkatayam usage, no member of a tarwad can enforce a partition of tarwad property at his pleasure, though such partition can be made with the consent of all its members. In the case before us, the Subordinate Judge held that the value of the share, which would ordinarily be allotted to the plaintiff if a partition were effected by common consent, viz., Rs. 886-13-4, was the, value of the present suit and that he had no jurisdiction to entertain it, and, in support of his opinion, he relied on the decisions of the High Court in Comappan v. Chathu Second Appeal No. 442 of 1883 unreported and Krishnan v. Gha...
Kunhiamma Vs. Kunhunni and ors.
Court: Chennai
Decided on: Apr-07-1892
Reported in: (1893)ILR16Mad140
1. This is a suit instituted under Section 283, Civil Procedure Code, for a decree declaring that the auction sale of certain property sold in execution of a decree obtained by, second defendant against firs defendant is invalid, the property being the property of the plaintiff, and at the time of sale in the possession of plaintiff's tenant. On the 30th November 1888 such possession was divested by the delivery order of the Court and as found by the District Judge the second defendant is now in possession. The question is whether, under these circumstances, a suit for a declaratory decree will lie. By Section 15, Act VIII of 1859, the Civil Courts were authorized to make binding declarations of right without granting consequential relief. This section was repealed by Act I of 1877, and it was thereby enacted that any person entitled to any property might institute a suit against any person denying his title, and that the Court might in its discretion make a declaration that he was so ...
K. Strinivasa Aiyangar and ors. Vs. Sriman Shadagopa Strinivasa Swami, ...
Court: Chennai
Decided on: Apr-06-1892
Reported in: (1892)IIMLJ139
1. The plaint in this suit was filed with the consent of the Advocate-General under Section 539, Civil Procedure Code, and asks for two reliefs, (1) for a declaration that defendant is not the duly appointed successor to the late head of the Mutt who died on the 10th August 1888, and (2) that the Court will fill up the vacancy by appointing a duly qualified disciple of the late Jheer as his successor. It is admitted that the defendant is in possession of the Mutt and its properties. The learned judge in the court below dismissed the suit on the ground that Section 539, Civil Procedure Code, does not apply to suits brought against a trespasser. Against this view it is argued that plaintiffs have a right to sue whether the sanction of the Advocate-General is given or not, and that it is necessary that the court should make an appointment of a successor to the late Jheer in order that there may be some one qualified to give religious instruction to the disciples of the Mutt and clothed wi...
Strinivasa Ayyangar and ors. Vs. Strinivasa Swami
Court: Chennai
Decided on: Apr-06-1892
Reported in: (1893)ILR16Mad31
1. The plaint in this suit was filed, with the consent of the Advocate-General, under Section 539 of the Code of Civil Procedure, and asks for two reliefs--(1) for a declaration that defendant is not the duly appointed successor to the late head of the mutt, who died on 10th August 1888, and (2) that the Court will fill up the vacancy by appointing a duly qualified disciple of the late jheer as his successor.2. It is admitted that the defendant is in possession of the mutt and its properties. The learned Judge in the Court below has dismissed the suit on the ground that Section 539 of the Code of Civil Procedure does not apply to suits brought against a trespasser. Against this view it is argued that plaintiffs have a right to sue whether the sanction of the Advocate-General is given or not, and that it is necessary the Court should make an appointment of a successor to the late jheer, in order that there may be some person qualified to give religious instruction to the disciples of th...
Saminatha Vs. Purushottama
Court: Chennai
Decided on: Apr-06-1892
Reported in: (1893)ILR16Mad67
1. The bond on which the present suit is brought was given in consolidation of three previous debts evidenced by Exhibits C, D and E. The genuineness of these documents is not disputed, but it is alleged that the debts were not incurred for the benefit of the mutt. The receipt of the first Rs. 5,000 (Exhibit C) has not been entered in the mutt accounts at all and though it may have been spent for the purposes of the litigation under. which Kumaraswami Tambiran was endeavouring to support his title there is nothing to trace the money. The receipt of the other two sums, Rs. 3,000 (Exhibit D) and Rs. 2,000 (Exhibit E) are entered in the mutt accounts (Exhibit IV).2. It is pointed out that when the Rs. 3,000 was received there was a cash balance of Rs. 1,496-10-1, and when the Rs. 2,000 was received there was a balance of Rs. 928-15-8. It is not, however, seriously disputed that the income of the mutt was amply sufficient for its ordinary and legitimate expenses, such as paying kists, etc....
Puraken and ors. Vs. Parvathi and ors.
Court: Chennai
Decided on: Apr-01-1892
Reported in: (1893)ILR16Mad138
1. In our judgment the Subordinate Judge was right in holding that Article 120 and not Article 91 applied to the case, and that the suit, which was instituted more than six years after the date of the cause of action, was barred. We cannot concur with appellants' pleader that in the case Pachamuthu v. Chinnappan I.L.R. 10 Mad. 213 the decision as to the only article of the Limitation Act which affected plaintiffs' right was a mere obiter dictum. The question stated by the learned Judges for decision was whether Article 91 or Article 120 of the Limitation Act applied, and, assuming that plaintiff had a right to sue, they decided that Article 120 was the only article which governed the case. Following that decision, we hold that plaintiffs' suit was barred and dismiss this second appeal with costs....
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