Chennai Court January 1909 Judgments
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Nayana Naickan Vs. Hajarat Kibuliai Syed Gulam Ghowse Sha Sait Kadiri
Court: Chennai
Decided on: Jan-18-1909
Reported in: (1910)20MLJ136
1. The first contention is that no appeal lay to the present Judge against the order of the District Munsif. The respondent, at the instance of the appellant, the decree-holder, was arrested in execution under a warrant issued by the District Munsif. He petitioned the District Munsif for his release, pleading exemption from arrest under Section 642, Civil Procedure Code. The District Munsif dismissed the petition on the ground that the right to exemption was not proved. The District Muusif's order was clearly an order under Section 244, Civil Procedure Code, as it determined a question between the parties to the decree relating to the execution of the decree. An appeal therefrom lay to the District Judge. The remaining contention pressed is that the District Munsif had no jurisdiction to entertain the petition for exemption.2. The District Munsif who had power to issue a warrant for the respondent's arrest had surely power to issue orders for his release if he was found to have been il...
T.S. Seshan Pattar Vs. T.R. Veera Raghava Pattar and ors.
Court: Chennai
Decided on: Jan-18-1909
Reported in: 4Ind.Cas.38
ORDER12. Upon the finding of the Subordinate Judge that the compromise agreement was reduced to writing, and that the document was not stamped, we must accept his finding that the respondent failed to prove the agreement upon which he relied. We are not prepared to say that the admissions in the appellant's affidavit relieved the respondent from the obligation of proving the agreement which he set up.13. The objection taken on behalf of the respondent that the appellant ought to have made the persons whom he made parties to his appeal to the lower appellate Court parties to this appeal must, we think, be upheld. We accordingly direct that this appeal stand over in order that these persons may be brought on the record as respondents.14. Any question of limitation is reserved.15. The case was accordingly reported for hearing after the addition of those persons as respondents.16. The contentions raised on behalf of the appellant were first that the agreement come to in April 1899 and reco...
Veerasawmi Naicker Vs. Ibramsa Rowther and ors.
Court: Chennai
Decided on: Jan-18-1909
Reported in: 1Ind.Cas.200
Munro, J.1. In view of the finding as to the nature of the discharge set up by the 1st defendant, the only question is, whether there is any objection to a suit by the plaintiff for his share. In the circumstances of the case, I think, there is no objection. As the plaintiff's partners refused to join as plaintiffs, the plaintiff did all he could when he made them defendants, and in view of their collusion with the 1st defendant, who contended that nothing was due to the partnership, the plaintiff was justified in confining the suit to his own share of, what he contended was due to, the partnership. The petition is dismissed with costs.Abdur Rahim, J.2. I think the case is concluded by the findings of fact. The 2nd and 3rd defendants, acting in collusion with the 1st defendant and fraudulently, gave the 1st defendant a full discharge for the amount due to the partnership of which the plaintiff, and the 2nd, 3rd and 4th defendants were members. It also appears upon the evidence that the...
Venkatvayulu Reddiar Vs. Shaik Farid Sahib and ors.
Court: Chennai
Decided on: Jan-18-1909
Reported in: 1Ind.Cas.80
1. We think that the principle laid down in the case of Ponnusami Mudaliar v. Srinivasa Naickan 31 M.k 333 and the cases there quoted is applicable to the facts of the present case and that the District Judge was in error in dismissing the suit on the ground that soc. 85 of the Transfer of Property Act required him to adopt that course.2. There is, we think, no reason why the plaintiff should not, in this suit, to allowed to recover what is due to him not exceeding the amount rateably due on the property against which he wishes to proceed, i.e., the mortgaged property excluding the portion mortgaged to the 15th defendant.3. We, therefore, set aside the decree of the District Judge and direct him to restore the appeal to his file and dispose of it according to law. Costs in this case will abide the result....
G Narayanasawmy Naidu, Receiver, Nidudavole Estate Vs. Gottimukalu Sit ...
Court: Chennai
Decided on: Jan-15-1909
Reported in: 4Ind.Cas.1119
Abdur Rahim, J.1. I think the decision of the Munsif is in accord with the rulings of this Court. See Karkarla Abbeyya v. Raja Vengata Pappayya 16 M.L.J. 8 and Naruyana Aiyengar v. Orr (3). In the case of Bodda Goddappa v. The Maharaja of Vizianagaram 17 M.L.J. 64 relied on by the petitioner, the question for decision is expressly confined to the right of the ryot to cut growing trees to the detriment of the reversionary interest of the zemindar, and the learned Judges upon that ground steer clear of the cases of Karkarla Abbeyya v. Raja Vengata Pappayya 16 M.L.J. 8; Narayana Aiyengar v. Orr 26 M.k 252 which lay down that the property in the trees belongs to the occupancy tenant and not to the zemindar in the absence of proof of a special custom to the contrary. This petition is dismissed with costs....
Pulaka Veetil Muthalakulangara Kunhu Moidu and ors. Vs. Thiruthipalli ...
Court: Chennai
Decided on: Jan-12-1909
Reported in: 1Ind.Cas.1
Wallis, J.1. Section 59 of the Transfer of Property Act provides that a mortgage can only be effected by a registered instrument signed by the mortgagor and attested by two witnesses. It follows from the provisions of this section that an instrument which is not registered or attested as required by the section is not a mortgage or relevant evidence of a mortgage. If, however, a document which purports to be a mortgage but cannot take effect as a mortgage for want of registration or due attestation also contains a covenant to pay, is there anything to prevent such document being given in evidence in a suit on the contract to pay? This is in effect the question raised in the reference, and it resolves itself into the further questions whether such a document is rendered inadmissible as evidence of the contract to pay for want of registration by virtue of Section 49 of the Indian Registration Act 1877 or for want of attestation by virtue of Section 68 of the Indian Evidence Act 1872. In ...
Thathu Naick and ors. Vs. Kondu Reddi and ors.
Court: Chennai
Decided on: Jan-12-1909
Reported in: 1Ind.Cas.221
Miller, J.1. The 1st plaintiff sues for the recovery of property purchased by him at a Court-sale in execution of a mortgage decree obtained by himself. The principal money due being Rs. 750 he obtained permission to bid at the sale to an amount not less than Rs. 1,500. The sale was held but neither he nor any one else made any bid: a month or two later another sale was held but again the property was not sold: at the third sale without asking for permission to bid he purchased in the name of the 2nd plaintiff for a sum considerably less than the principal money due on the mortgage. The sale was confirmed and possession delivered to the 2nd plaintiff under Section 319, Civil Procedure Code. The plaint alleges that delivery was under Section 318, and the delivery order and receipt are not on the record, but I take it for the purposes of this judgment, paragraph 12 of the plaint being ambiguous, that the 4th and 5th defendants are purchasers from the judgment-debtors pending the plaintif...
Ponnusawmy Nadar and anr. Vs. V. Doraisawmy Aiyar
Court: Chennai
Decided on: Jan-12-1909
Reported in: 1Ind.Cas.247
1. What the plaintiff wants to do is to set off the decree in Original Suit No. 37 of 1893 against the decree in Original Suit No. 25 of 1899. He can only do this, if at all, under Section 246, Civil Procedure Code. This section, however, clearly requires that both the decrees should be before the Court for execution,--Vide Chajmal Das v. Lal Dharam Singh 24 A.j 481. The precise point now under consideration was not raised and decided in Sinnu Pandaram v. Santhoji Row 26 M.j 428. The above requirement is not satisfied in the present case. We reverse the lower Court's order and restore the order of the Subordinate Judge, dated 13th October 1906, with all costs subsequent thereto....
Amirthathammal Vs. Periasami Pillai
Court: Chennai
Decided on: Jan-11-1909
Reported in: 4Ind.Cas.507
Arnold White, C.J.1. This is a suit to recover possession of land. In 1897 the plaintiff, a Hindu widow, executed and registered a sale-deed of the land in question to her nephew. She retained possession of the deed but the nephew had notice of its execution and the tenant of the land in question attorned to him. The nephew died in 1901 and after his death, the plaintiff got the tenant to attorn to him. A few months later the nephew's mother and heir sold the land to the defendant.2. The deed executed by the plaintiff purports to be an out and out sale to the nephew. The plaintiff states in her plaint that she executed the sale-deed with the object that the defendant (who is the nearest reversioner of the plaintiff's husband) should not obtain the property after her death. The District Judge finds that there was no consideration for the sale-deed by the plaintiff to the nephew. But that there was consideration for the sale by the nephew's mother to the defendant. He also finds that the...
Velayutha Chetti and ors. Vs. Govindasawmi Naicken
Court: Chennai
Decided on: Jan-11-1909
Reported in: 4Ind.Cas.1115
1. This appeal see Velayutha Chetty v. Govindasawmi Naicken 17 M.L.J. 450 was ordered to be re-heard on the ground that at the date of the former hearing the appellant was dead and no one had been brought on the record to represent him. At the re-hearing it was contended that we were wrong in having given the vendee who was found not to have paid the whole of the purchase money an unconditional decree for possession and we were referred to the recent decision in Baijnath Singh v. Paltu (1908) 5 A.L.J. 96 in which it was held that although a vendee who has not paid the purchase money is entitled to maintain an action for possession against the vendor yet the vendor has an equity arising out of the purchase money and that the proper decree is that, if the plaintiff pay the purchase money within six months the property be delivered to him, and if he fail to do so his suit do stand dismissed. The decision follows an obiter dictum of Mahmood, J. in Shib Lal v. Bhagwan Das 11 A. m 244 that '...
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