Chennai Court August 1914 Judgments
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iyappa Nainar Vs. Manicka Asari
Court: Chennai
Decided on: Aug-11-1914
Reported in: (1917)ILR40Mad630
1. This is an appeal under Section 46, Clause (2) of the Provincial Insolvency Act, from an order of the District Judge of South Arcot dismissing a petition put in by a creditor asking the Court to take action against an insolvent under Section 43, Clause (2)(b) of the Act. A preliminary objection is taken that a creditor has no right of appeal in that he is not 'a person aggrieved' by the order within the meaning of Section 46(1). In Kadir Baksh v. Bhawani Prasad I.L.R. (1892) All. 145, a Judge of a Small Cause Court refused to take action under Section 359 of the Code of Civil Procedure against an insolvent and a revision petition was entertained by the High Court against the order at the instance of a creditor. This however does not assist the appellant as in revision the Court acts suo motu. It has been held in the matter of Rash Behari Roy v. Bhughwan Chunder Boy I.L.R. (1890) 209, under the Insolvent Act 11 & 12 Vict., cap. 21, that Section 50 should be administered as the crimin...
Muthukrishna Iyangar and ors. Vs. Sankaranarayana Iyer and anr.
Court: Chennai
Decided on: Aug-11-1914
Reported in: AIR1915Mad447; 25Ind.Cas.573
Tyabji, J.1. The question involved in this appeal is whether plaintiffs' right as against the defendants Nos. 5 to 7 to redeem certain mortgaged properties, is barred by limitation.2. The plaintiffs and the defendants Nos. 1 and 2 were co-parceners, jointly interested in the property referred to in the plaint. The defendants Nos. 1 and 2 were in possession of the property. Their possession, it is admitted, must in law be considered as the possession of all the co-parceners, as it is not alleged that to the knowledge of the plaintiffs, the defendants Nos. 1 and 2 asserted a title adverse to their co-parceners. The defendants Nos. 1 and 2 sold the property--they could alienate only their own interest in it--to the 5th defendant. The 6th and 7th defendants are the undivded sons of the 5th defendant. The 5th to 7th defendants, who are the appellants before us, claim to have derived title to the whole property from the defendants Nos. 1 and 2 contending that the whole of it, and not merely ...
Tunuguntla Brahmayya Vs. Sangam Rami Reddi and anr.
Court: Chennai
Decided on: Aug-11-1914
Reported in: AIR1915Mad425(2); 25Ind.Cas.590
Hannay, J.1. The District Munsif has found that the suit document, a promissory note, was not executed on the date it bears and that it was not executed by the 2nd defendant or with her consent. He has, therefore, dismissed the suits, holding that the plaintiff cannot get a decree against the 1st defendant either. The 1st defendant was examined as plaintiff's 6th witness in the case and made the admission that he and the 2nd defendant executed the note to plaintiff and that he received the amount. It is contended in these circumstances that the lower Court ought to have passed a decree against the 1st defendant upon his admission. For the respondent the case of Amirtham Pillai v. Nanjah Gounden 23 Ind. Cas. 464 : 26 M.L.J. 257 : 15 M.L.T. 205 : (1914) M.W.N. 250 : 1 L.W. 243 and the decision of Miller, J., in Civil Revision Petition No. 601 of 1912 therein referred to are specifically relied upon. I think these cases must be distinguished from the present on the ground that it appears ...
Panambatta Kalathil Kunchu Menon Vs. Kalathinpadikil Narayanan Ezhutes ...
Court: Chennai
Decided on: Aug-11-1914
Reported in: AIR1915Mad100; 25Ind.Cas.641
Oldfield, J.1. I do not deal with the lower Court's finding on issue.(2) that the plaintiff had an interest entitling him to pay the amount sued for on the defendant's behalf, because my conclusion on issue (1) that the defendant was not bound to make the payment, will be sufficient for the disposal of the petition.2. The defendant is a mortgagee in possession and the question is whether he is bound as such ' to pay the amount by which the assessment on the land mortgaged was enhanced after the date of the mortgage. Under Section 76 (c) of the Transfer of Property Act the mortgagee in possession is bound to pay the revenue in the absence of a contract to the contrary. The following words in the mortgage, Exhibit II, are relied on, as constituting such a contract as regards at least revenue in excess of that specified in them:Out of this 60 paras 15 nazhis of paddy is allowed for payment of revenue of 60 fanams 4 visams due on these, you having consented and undertaken to pay same from ...
Kunchapudy Anantha Venkata Veeraraghava Charyulu Vs. Srimaut Rajah Yar ...
Court: Chennai
Decided on: Aug-11-1914
Reported in: AIR1915Mad337(2); 25Ind.Cas.883
1. The lower Courts were in error in holding that the effect of the plain words of Order XXI, Rule 57, of the Code of Civil Procedure, under which 'upon the dismissal' of an application the attachment (made in execution) shall cease,' can be nullified merely because the decree-holder thought otherwise, or prayed only for sale of the attached property in a subsequent petition on the footing that the attachment would continue notwithstanding the dismissal of the former petition.2. However, our powers to allow amendments of proceedings and pleadings are very wide under the new Code (see Section 153 of the Code of Civil Procedure); and on the application of Mr. C.V. Ananthakrishna Iyer (who appears for the decree-holder-respondent) we permit his client to amend the Petition No. 835 of 1911 within three days by adding a prayer for attachment of the property sought to be sold. On such amendment being made, the District Munsif's order on that petition will be modified by directing attachment ...
M.A. Rajam Aiyangar and ors. Vs. Muthukrishna Pillai and ors.
Court: Chennai
Decided on: Aug-11-1914
Reported in: AIR1915Mad424; 25Ind.Cas.945
Hannay, J.In Civil Revision Petition No. 484 of 1913.1. The question is whether the lower Court is right in holding that the effect of the application by the plaintiff, dated 28th March 1913, asking that a decree in the alternative may be passed in his favour as Managing Director of the Reliance Company, Limited, (he having sued in his private capacity in the first instance) was to add a new plaintiff after the right to sue had become barred by limitation. I do not think that that view can be supported. The Company was not in fact added as a party, but thereby the capacity in which the plaintiff sued was sought to be altered. This would not, in my opinion, be equivalent to adding a new plaintiff so as to admit of the terms of Article 22 of the Limitation Act being applied to the case. The principle of the cases cited by the petitioner Saminatha v. Muihayya 15 M. 417 : 2 M.L.J. 119, Peary Mohan Mukerjee v. Narendra Nath Mukerjee 32 C. 582 : 9 C.W.N. 421 and Subramania Aiyar v. Subbu Nai...
Thangavelu Pillai and Purshottam Reddi Vs. Doraisami Pillai and anr.
Court: Chennai
Decided on: Aug-10-1914
Reported in: AIR1915Mad113; (1914)27MLJ272
Sadasiva Aiyar, J.1. The plaintiff is the appellant in both these appeals. The suit out of which Second Appeal No. 2229 arose was brought on a mortgage document executed in the plaintiff's favour by the defendants land 2 on the 13th February 1905. The 2nd defendant is the son of 1st defendant. The lower appellate Court finds (a) that the 2nd defendant was a minor when the 1st defendant induced him to join the 1st defendant in executing the mortgage document; (b) that the mortgaged property belonged solely to the son, the 2nd defendant, on the date of the mortgage deed in 1905 as it had been gifted away by the father, the 1st defendant to the 2nd defendant under the registered gift-deed, Exhibit IV, dated 1892; and (c) that the money which formed the consideration for the mortgage Exhibit A was not borrowed for the benefit of the 2nd defendant.2. On these findings the plaintiff's suit was dismissed with the 2nd defendant's costs so far as it prayed for the sale of the mortgaged property...
Balasidhantam and ors. Vs. Perumal Chetti, and ors.
Court: Chennai
Decided on: Aug-10-1914
Reported in: AIR1915Mad654; (1914)27MLJ475
1. The suit was brought under Section 7, clause XI (cc) of the Court Fees Act on payment of the court fees upon one year's rent. Therefore the title of the plaintiffs need not be gone into in this case. We express no opinion whether the documents, Ex. A, B, & 1, constitute a sale with a condition to repurchase or a mortgage by conditional sale. We are not to be understood as agreeing with the conclusion at which the Courts below have arrived upon this point.2. It is argued that as the full amounts mentioned in Exhibits A and B have been deposited in Court, the plaintiffs are not entitled to a decree for rent. As was pointed out in Satyabai Behara v. Harabati I.L.R. (1907) C. 223 and in Rukmani Bai v. Venkatesh I.L.R. (1907) B 527, mere deposit of the amount does not put an end to the relationship already subsisting. Even if the plaintiffs were only mortgagees so long as Exhibit B subsists, they can sue for possession and for rent under it. We agree with the decisions of the Calcutta an...
Adaikalam Chetti Vs. Subban Chetty and ors.
Court: Chennai
Decided on: Aug-10-1914
Reported in: (1914)27MLJ621
John Edward Power Wallis, Kt. Officiating C.J.1. I have had the advantage of reading the judgment of my learned brother and shall only deal with the right of the plaintiff a member of a joint family to maintain a suit to recover money belonging to the joint family advanced by him on mortgage to the defendants without joining the other members of his family interested in the money. 2. According to the view we take of the facts and for reasons given in the judgment of my learned brother we hold that the money was advanced to the mortgagees without disclosing that it belonged to the joint family, and at a time when the plaintiff was not the managing member of the family. It was held in Adaikhalam Chetti v. Marimuthu I.L.R. (1899) M. 326 and other cases that in the cases of a joint family where the contract was in the name of the plaintiff he was entitled as the agent of an undisclosed principal to sue on it himself without joining the other members of the family. This decision, it is true...
Manikka Mudaliar and ors. Vs. Soubagia Ammal
Court: Chennai
Decided on: Aug-10-1914
Reported in: AIR1915Mad26; 25Ind.Cas.897; 25Ind.Cas.897a; (1914)27MLJ291
1. The Judge has awarded the sum of Rs. 50 per month for maintenance to the plaintiff, who is the widow of a deceased member of a joint Hindu family. The defendants, her husband's brother and brother's sons, appeal.2. It is first contended that the District Judge is wrong in fixing the maintenance with reference to the present income of the family. The major part of the income is derived from the family trade in which the plaintiff's husband took part at the time of his death and which has developed considerably since. The District Judge estimates the present income at Rs. 17,500 a year. It is contended for the appellants that it was not more than Rs. 500 in 1897 when the plaintiff's husband died, and the rate of maintenance should be fixed with reference to that income3. It is not contended that the property out of which the plaintiff seeks to be maintained is not joint family property; that the defendants did not take her husband's interest by survivorship and that formed in part the...
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