Court : Chennai
Reported in : AIR1926Mad1210; 97Ind.Cas.687
1. The learned Judge has declined to accept the finding of the lower Appellate Court as to plaintiff's title and possession on the ground that the plaintiff has failed to prove his title. In this we think he was wrong and that his decision is apparently due to an idea that the plaintiff was bound to prove that he was the direct lineal descendant of the first holder Ramachari in accordance with the principle of devolution according to Hindu Law. No such allegation was set up in the plaint and the property in dispute in this case is the property attached to a maniem office and the devolution of such property very frequently does not follow the rules laid down by the Hindu 1 aw. The appointment rests with the Government and very frequently the appointment is made on other grounds than direct heirship alone.2. Apart from this, the plaintiff has been given the inam on enfranchisement and in Ramakrishnayya v. Pitchayya (1925) M.W.N. 480 : A.I.R. 1925 Mad. 726 it was held that such a grant co...
Tag this Judgment!Court : Chennai
Reported in : AIR1927Mad149
Madhavan Nair, J.1. The question for determination in this Civil Miscellaneous Second Appeal is whether Execution Petition No. 693 of 1920 is barred by limitation.2. The facts are briefly these: the 7th counter-petitioner is the appellant and represents the judgment-debtors. The respondent's predecessor-in-interest obtained a mortgage-decree against the judgment-debtors on 2nd April 1907, wherein one month's time was fixed for payment of the mortgage-money. The decree was a preliminary one under Section 88 of the Transfer of Property Act and no order absolute for sale had been passed after the preliminary decree. The First Execution Application No. 505 of 1911 was filed on 11th September 1911. This was more than three years after the passing of the preliminary decree, but the decree-holder stated in it that Rs. 20 were paid out of Court towards the decree and that the same was endorsed on the back of the decree. The petition was dismissed for non-payment of additional batta on 24th Oct...
Tag this Judgment!Court : Chennai
Reported in : AIR1927Mad99; (1926)51MLJ765
Murray Coutts Trotter, Kt., C.J.1. But for illustration (r) to Section 73 of the Indian Contract Act, I should have felt very little difficulty about this case. It was a case of a sale of goods where the buyer agreed to pay considerable sums of money by way of advance before the due time for delivery of the goods and where the seller defaulted in the end and did not deliver the goods he had contracted to deliver. Under the contract the advances were merely in anticipation of the purchase price and there was no provision that interest on them should be credited to the buyer against the final adjustment. In this case the buyer has brought a suit in which he has not pressed for his ordinary remedy, namely, the difference between the contract price and the market price at the date of breach but has merely asked for the return of his deposit with interest. The question that has been referred to us is whether, if he elects such a remedy, he can have back not merely his deposit, which is not ...
Tag this Judgment!Court : Chennai
Reported in : AIR1927Mad241
Devadoss, J.1. The plaintiffs' suit is for a permanent injunction restraining the Municipal Council of Kumbakonam from demolishing a masonry koradu put by them in front of their house. Both the Courts have dismissed the plaintiffs' suit. The plaintiffs have preferred this second appeal. The second appellant died in February or March 1924. An affidavit is filed by the first appellant, husband of the second appellant, that the latter left no issue and that the first appellant is the heir and as such he is competent to prosecute the appeal.2. The first appellant applied on 7th August 1918 to the Municipal Council of Kumbakonam for sanction to construct a house on a plot of land belonging to him. With that application he submitted a plan in duplicate. The Municipal Council insisted upon the first appellant giving up 15 feet of his land in front of the proposed house for use as a public road and further insisted upon his leaving 7 feet behind his house for being used as a sanitary lane. As ...
Tag this Judgment!Court : Chennai
Reported in : AIR1926Mad986; (1926)51MLJ299
ORDER1. This is an application for the grant of leave to appeal to His Majesty in Council against the decree of the High Court in C.M.A. Nos. 437 of 1923 and 15 of 1924. A preliminary objection is taken by Mr. Patanjali Sastri for the respondent that no appeal lies to the Privy Council against the decree of the High Court in testamentary matters and it is incompetent for the High Court to grant leave to appeal to His Majesty in Council. The argument of Mr. Patanjali Sastri is that under the Probate and Administration Act, Section 86, only one appeal is provided from an order of District Judge or District Delegate to the High Court and no further appeal is allowed by the Act, and that an appeal being a creature of statute there is no statute granting the right of appeal to the Privy Council in testamentary matters. Section 86 no doubt provides for an appeal to the High Court against an order made by a District Judge or a District Delegate. The question is, is the decree of the High Cour...
Tag this Judgment!Court : Chennai
Reported in : (1926)51MLJ663
1. This is an appeal under Section 15 of the Letters Patent against the judgment of Odgers, J., in S.A. No. 121 of 1924.2. The facts of the case are simple and the findings are not disputed. The plaintiffs sued the defendant-appellant for damages for breach of contract to deliver certain bags of rice. The defendant had no license for importing rice but it is admitted that the parties knew that the defendant's friend 'Ayyalu' had a license and that he would enable the defendant by his good offices to perform the contract with the plaintiffs. It is not disputed that the contract contemplated delivery by railway waggons. As a war measure the Government had imposed 'waggon restrictions' 'priority certificates' all over the Presidency, and this interfered with the free and easy transport of rice. The existence of these restrictions was well-known to,all the parties. Owing to the shortage of waggons on account of the enforcement of the rules the defendant was not able to perform his contract...
Tag this Judgment!Court : Chennai
Reported in : AIR1927Mad179
Krishnan, J.1. This is an appeal from the judgment of Mr. Justice Beasley sitting on the Original Side in a case brought by the plaintiffs against one Shukoor and Co., one Gaffor Sahib and one Swaminathier. Swaminathier was not originally in the suit but was subsequently added as the 3rd defendant. The plaintiffs are hardware merchants in Madras. Gaffor Sahib, the 2nd Defendant, was a partner with the plaintiffs, but inasmuch as he did not join the plaintiffs in filing the suit he was made the 2nd defendant in the suit. He is also a partner of the defendant firm. The plaintiffs claim that a sum of about Rs. 13,000 was due to them on dealings and the suit was brought to recover that money from Shukoor and Co. They subsequently joined the 3rd defendant on the allegation that the 3rd defendant having purchased the assets and liabilities of Shukoor and Co. in February 1921 made himself thereby liable to pay the debt of the plaintiffs. Shukoor and Co. denied that there was any liability on ...
Tag this Judgment!Court : Chennai
Reported in : AIR1927Mad277
ORDERDevadoss, J.1. This is an application to revise the order of discharge by the Sub-divisional Magistrate of Tiruvannamalai. The deceased was almost beaten to death and there were as many as 30 injuries on his person. He made a statement as regards the occurrence. There is a volume of evidence in the case which if believed would sustain a conviction at least under Section 304 or Section 326, Indian Penal Code. The Sub-Magistrate who heard the case ought to have committed the accused to the Court of Sessions as in all Sessions cases it is for the Sessions Judge to weigh the evidence and come to a conclusion. The committing Court has only to see whether there is evidence which if believed would sustain a conviction. It is not the function of the committing Court to consider the probabilities and the evidence in the case as if it is a trying Court.2. A great deal of reliance is placed upon the medical evidence, but I do not want to say anything which might prejudice one side or the oth...
Tag this Judgment!Court : Chennai
Reported in : AIR1926Mad1128
1. The question for decision in this Civil Miscellaneous Appeal is one of res judicata and it arises in the following circumstances: Defendant is the appellant. Plaintiff's suit is for recovery of one acre of land in Survey No. 479-Q after partition, with past and future mesne profits. This property originally belonged to one Muthu Naidu. He executed a mortgage over one acre of this property in favour of Ayyavu Odayar. Ayyavu Odayar sued on the mortgage bond, got a decree and brought to sale the hypotheca. The plaintiff purchased the property and got possession through Court. He then sued the present defendant in O.S. No. 224 of 1919 describing the property purchased by him as a specific one acre of land in Survey No. 479-Q. The present defendant contested the suit and pleaded that the land was not mortgaged by Muthu Naidu and was not purchased by the plaintiff. It was held in that suit as well as in the appeal that the present plaintiff was not entitled to the western one acre specifi...
Tag this Judgment!Court : Chennai
Reported in : 97Ind.Cas.836
ORDER1. This is an application for the grant of leave to appeal to His Majesty in; Council against the decree of the High Court in C.M.A. Nos. 437 of 1923 and 15 of 1924. A preliminary objection is taken by Mr. Patanjali Sastri for the respondent that no appeal lies to the Privy Council against the decree of the High Court in testamentary matters and it 4S incompetent for the High Court to grant leave to appeal to His Majesty in Council. The argument of Mr. Patanjali Sastri is that under the Probate and Administration Act, Section 86, only one appeal is provided from an order of the District Judge or District Delegate to the High Court and no further appeal is allowed by the Act, and that an appeal being a creature of Statute there is no Statute granting the right of appeal to the Privy Council in testamentary matters. Section 86, no doubt, provides for an appeal to the High Court against an order made by a District Judge or a District Delegate. The question is, is the decree of the Hi...
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