Chennai Court March 1895 Judgments
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Unni and ors. Vs. Nagammal and ors.
Court: Chennai
Decided on: Mar-13-1895
Reported in: (1895)ILR18Mad368
Subramania Ayyar, J.1. This is a suit for the recovery of the amount due under a mortgage executed to the first plaintiff on the 16th March 1878 by the father of the defendants Nos. 1 and 2. The defendants Nos. 3 to 5 are the assignees of the rights of one Varadan Patter to whom the father of defendants Nos. 1 and 2 had executed two prior mortgages, one for Es. 20,000 and the other for Rs. 1,000 on the 6th and 7th April 1874, respectively.2. Varadan Patter, having been entitled to the possession of the property as mortgagee, leased the same to the mortgagor. The mortgagor-lessee failed to pay the rents and Varadan Patter brought a suit against him in 1877 for the recovery of arrears of rent and the possession of land. The disputes were amicably adjusted and a razi petition was put in on the 30th October 1877. The portions of the compromise material for our present purpose are as follows: 'The first defendant (father of the defendants Nos. 1 and 2) shall, on the third Makarom next, pay ...
Kumbalinga Pillai Vs. Ariyaputra Padiachy
Court: Chennai
Decided on: Mar-12-1895
Reported in: (1895)5MLJ200
1. At the time of the auction sale, the plaintiff was the usufructuary mortgagee in possession, and the land was brought to sale in satisfaction of a decree upon a prior hypothecation. The equity of redemption was purchased by 1st defendant, who at the time was plaintiff's paid agent, and it is found that in the purchase 1st defendant acted as plaintiff's agent and that plaintiff supplied the money for the purchase. The plaintiff remained in possession through his tenants. Being usufructuary mortgagee the 1st defendant could not have disturbed him without redeeming the mortgage even if he (1st defendant) had purchased the equity of redemption oh his account. But it is found that he agreed to execute a conveyance to the plaintiff, allowed plaintiff to take possession of the sale certificate and delivery order and that he was at the time plaintiff's agent.2. We think the case falls within the principles laid down in Monappa v. Surappa, I. L. R. (1886) M. 234 and Sankunni Nair v. Narayana...
Kumbalinga Pillai Vs. Ariaputra Padiachi
Court: Chennai
Decided on: Mar-12-1895
Reported in: (1895)ILR18Mad436
1. At the time of the auction--sale the plaintiff was the usufructuary mortgagee in possession, and the land was brought to sale in satisfaction of a decree upon a prior hypothecation. The equity of redemption was purchased by the first defendant, who at the time was the plaintiff's paid agent, and it is found that in the purchase the first defendant acted as plaintiff's agent and that the plaintiff supplied the money for the purchase. The plaintiff remained in possession through his tenants. The mortgage being usufructuary, the first defendant could not have disturbed him without redeeming the mortgage even if he (first defendant), had purchased the equity of redemption on his account. But it is found that he agreed to execute a conveyance to the plaintiff/allowed plaintiff to take possession of the sale certificate and delivery order and that he was at the time plaintiff's agent.2. We think the case falls within the principles laid down in Monappa v. Surappa I.L.R. 11 Mad. 234 and Sa...
Ambalavana Pandaram Vs. Vaguran Alias Muthian and ors.
Court: Chennai
Decided on: Mar-08-1895
Reported in: (1895)5MLJ228
1. The only question is whether the claim for rent more than three years prior to suit is time-barred. Plaintiff's contention is that it is not, as the document is registered and therefore Article 116 is applicable--the rent being, for a period within six years prior to the suit. The Subordinate Judge has held Article 116 to be inapplicable on the authority of the decision of Kernan and Brandt, J.J., in Ramasami Chetti v. Lokkanada Chetti S.A. No. 227 of 1887 which is reported in 1 M. L. J. 737 This decision is however, not reported in the authorized Law Reports and is consequently not a binding authority, see Act XVIII of 1875, Section 3. Were it otherwise, we should have felt it our duty to have referred the question for decision by the Full Bench as we are very clearly of opinion that the decision referred to is erroneous. In our opinion a contract 'which has in fact been-registered is no less a ' contract in writing registered ' within the meaning of Article 116 because it bears th...
M.V. Venkatacharlu Vs. W.S. Venkataramanjulu Naidu and ors.
Court: Chennai
Decided on: Mar-07-1895
Reported in: (1895)5MLJ241
1. It is first urged that the third mortgage (Ex H) Contains a clear acknowledgment of liability under the first mortgage of 1873. The words in reference to the property are, 'I have hypothecated to you as third mortgage my one-third share which was already hypothecated in 1873 to B. Venkata Narasuppa garu for Rs. 4000 as first mortgage, and in 1885 to Hanumantha Rao garu as second mortgage for Rs. 5,000.' We think the fact that the mortgagor speaks of the document he is executing as a ' third mortgage' is clear indication that the first and second mortgages exist, and that the words amount to an acknowledgment of liability under those mortgages.2. The next question is whether the acknowledgment in Ex. H on April 23rd 1887 was made before or after a suit upon the first mortgage would have been barred, for if the latter, the acknowledgment will not save the limitation. Under the terms of Ex. A Krishnasami Naidu bound himself in case of failure to pay three consecutive instalments' to pa...
Somasundram Aiyar and ors. Vs. Robert Fischer
Court: Chennai
Decided on: Mar-06-1895
Reported in: (1895)5MLJ222
1. The only question is as to the liability of the 1st defendant, jointly with the 2nd defendant against whom a decree has been given. The judgments of the lower courts exonerating the 1st defendant, proceed on the ground that he was merely a benamidar as far as the property sold to plaintiff's father was concerned.2. The real question is whether, even assuming the 1st defends ant to have been merely a benamidar as to the property, he is not liable on the covenant mentioned in C which is in the following words :--Should there be any hindrance in your enjoying the same we shall settle and remove such hindrance.3. This is an express covenant by both the defendants which cannot be affected by the benami character of the 1st defendant who is equally liable thereunder with the 2nd.4. It is contended on behalf of respondent that being a benamidar there was no consideration for the promise made by him. The consideration was clearly the purchase of the property by the plaintiffs' father.5. In ...
Somasundaram Ayyar and ors. Vs. Fischer
Court: Chennai
Decided on: Mar-06-1895
Reported in: (1897)ILR19Mad60
1. only question is as to the liability of the first defendant jointly with the second defendant, against whom a decree has been given. The judgment of the lower Court exonerating the first defendant proceeds on the' ground that he was merely a benamidar as far as the property sold to plaintiffs' father was concerned.2. The real question is whether, even assuming the first defendant to have been merely a benamidar as to the property, he is not liable on the covenant mentioned in C, which is in the following words: 'Should there be any hindrance in your enjoying the same, we shall settle and remove such hindrance.' This is an express covenant by both the defendants, which cannot be affected by the benami character of the first defendant who is equally liable thereunder with the second.3. It is contended on behalf of respondent that, being a benamidar, there was no consideration for the promise made by him. The consideration was clearly the purchase of the property by the plaintiffs' fat...
Kunhappa Nambiar and anr. Vs. Shridevi Kettilamma
Court: Chennai
Decided on: Mar-05-1895
Reported in: (1895)ILR18Mad451
1. The appellants' vakil has brought to our notice the decision in Krishnan Nambiar v. Krishnan Nair[1] in which it was held that the state of things at the time when the debt was contracted must be looked to, and that a creditor cannot be affected by any subsequent arrangement in the family to which he was not a party; and that consequently subsequent partition in a tarwad is no ground for holding the divided members and their property not liable for the decree obtained against the karnavan, as such, prior to the partition. We see no reason to doubt the correctness of the above decision. But it is no authority for holding to be valid the sale of partitioned property in the absence of the parties to whom it has been apportioned.2. For a sale to be binding on such persons, they should be expressly included as parties to the execution proceedings in which case they will have an opportunity of paying the debt and thus saving the property from sale. As they have ceased to be members of the...
Kota Perundavitayar Ammal Vs. Rottala Nammalwar Chetti and anr.
Court: Chennai
Decided on: Mar-04-1895
Reported in: (1895)5MLJ203
1. This is a case referred by the 2nd Judge of the Court of Small Causes at Madras under Section 617 of the Civil Procedure Code, and the question submitted for our decision is whether the suit is governed by Article 59 of Schedule II of the Limitation Act or by Article 60.2. So far as we have been able to gather the facts of the case from the statement of the Judge, they seem to be as follows.:--The father of the defendants carried on business as a shopkeeper and banker and the plaintiff's husband deposited with him certain sums of money on the distinct understanding that they were to be repaid with interest on demand. The circumstances that the depositor was a near relative of the banker, and the moneys in question (which were the depositor's savings) were handed over to the banker under the advice and at the suggestion of the banker himself, seem to be mentioned by the Judge in the statement of facts, if we understand him rightly, for the purpose of shewing that there was something ...
Perundevitayar Ammal Vs. Nammalvar Chetti and anr.
Court: Chennai
Decided on: Mar-04-1895
Reported in: (1895)ILR18Mad390
1. This is a case referred by the Second Judge of the Court of Small Causes at Madras under Section 617 of the Civil Procedure Code, and the question submitted for our decision is whether the suit is governed by Article 59 of Schedule II of the Limitation Act or by Article 60.2. So far as we have been able to gather the facts of the case from the statement of the Judge they seem to be as follows. The father of the defendants carried on business as a shopkeeper and banker, and the plaintiff's husband deposited with him certain sums of money on the distinct understanding that they were to be repaid with interest on demand. The circumstances that the depositor was a near relative of the banker and the moneys in question (which were the depositor's savings) were handed over to the banker under the advice or at the suggestion of the banker himself, seem to be mentioned by the Judge in the statement of facts, if we understand him rightly, for the purpose of showing that there was something i...
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