Kolkata Court December 1878 Judgments
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Kirtee Chunder Mitter Vs. Struthers and anr.
Court: Kolkata
Decided on: Dec-09-1878
Reported in: (1879)ILR4Cal336
Wilson, J.1. This action is for debt for the price of goods sold and for damages for non-acceptance. The admitted facts show that, after action brought, the plaintiff entered into an arrangement in writing with one of the defendants G.M. Struthers. The form of the receipt which expresses the agreement is as follows: (Reads receipt.) Whatever the English Law would have been as to the effect of the document, we arc governed here by the Contract Act. It is a receipt in satisfaction from one of several persons jointly liable for debt and damages, Then Section 44 says: (Reads Section 44 of the Contract Act.) I think that section applies. It is said that the section applies only to a release to a man from his promise before breach, and not to discharge alter breach. That I think is too narrow a construction. I think the meaning generally is that the release to one of several contractors does not discharge the co-contractors. I ought to say a word as to the latter part of the document by whic...
Poresh NaraIn Roy Vs. Kassi Chunder Talukdar
Court: Kolkata
Decided on: Dec-09-1878
Reported in: (1879)ILR4Cal662
Morris, J.1. The objection taken in special appeal is, that the lower Court has dismissed the suit of ejectment brought by the plaintiff, on the ground that it is barred by the law of limitation owing to the defendant having proved possession of the land in suit for more than twelve years, and that being so it has given a title to the defendant in the land arising out of adverse possession, which is not warranted by its own finding of fact or the pleadings in the cause.2. The plaintiff derived his title from one Gossain, who was examined as a witness on his behalf. In his judgment the Judge says,--'But this Gossain's deposition, moreover, must be taken as a whole, and it appears to mo to be fatal to plaintiff. He says, defendant and his two predecessors never paid him any rent, and it has been proved in the evidence that they have occupied the land for more than twelve years. With regard to what defendant got from Potit Pabun, therefore, I agree, with the Subordinate Judge that limitat...
Dorab Ally Khan Vs. Abdool Azeez and anr.
Court: Kolkata
Decided on: Dec-05-1878
Reported in: (1879)ILR4Cal229
Pontifex, J.1. The defendants must refund the sums claimed, with interest at 6 per cent. from the date of this order to time of payment. The cots of this application to be costs in the cause....
Mumtaz HosseIn Vs. Brij Mohun Thakoor and ors.
Court: Kolkata
Decided on: Dec-04-1878
Reported in: (1879)ILR4Cal888
Jackson, J.1. The appellant has not convinced us that the facts of the case are such as that the Court should have, under Section 351, declared him an insolvent. In the first place, I may remark that the Judge has placed him in a position somewhat more advantageous than he was entitled to, by holding that the burden of proving the matters set out in that section did not lie on him. We think it does lie upon the applicant to satisfy the Court as to the various matters there described, and it is quite reasonable that he should do so, because the facts are peculiarly and chiefly within the applicant's own knowledge; and the meaning of the section no doubt is that upon his examination before the Court he should leave on the mind of the Court an impression that he is not under any of those heads undeserving of the protection which he asks for. Now it appears to us that the circumstances stated by the Judge do amount to a very strong case of suspicion, and more upon this head, that he had co...
Lal Das Vs. Nekunjo Bhaishinai
Court: Kolkata
Decided on: Dec-04-1878
Reported in: (1879)ILR4Cal374
Ainslie, J.1. We decline to interfere with the order of the Magistrate. It is not for a Magistrate to determine the question who is the lawful guardian of a child. The provisions of chap. xli of the Criminal Procedure Code only enable him to make an order for the maintenance of his wife or child on its appearing to the satisfaction of the Court that he has neglected or refused to do so, although in the possession of sufficient means.2. The child in this case is an illegitimate one in the custody of its mother, and there is nothing in the Code which warrants the Magistrate making an order for her surrendering it to the father. Her refusal to surrender it is no ground for stopping the allowance previously ordered. The father's right to the custody of the child, if any, must be determined elsewhere, and not in the Magistrate's Court....
The Empress Vs. Nipcha and anr.
Court: Kolkata
Decided on: Dec-02-1878
Reported in: (1879)ILR4Cal712
Tottenham, J.1. It seems to me that the Judge is wrong in his law throughout.2. The Deputy Magistrate did expressly sanction a complaint under Section 211, and even took bail for the appearance of the accused. The sanction was none the less valid because the person to whom it was given did not avail himself of it, and sanction having been given, the Magistrate of the district was competent, under Section 142, Code of Criminal Procedure, to take up the case without a complaint.3. As to the change from Section 211 to Section 192, the sanction in respect of one offence covers also one under the other on the same facts (ss. 470 and 450, Code of Criminal Procedure).4. But, after all, it would appear that the Judge would acquit the prisoners on the merits also. It will be sufficient, therefore, to point out to the Judge that his view of the law is erroneous.5. His attention should also be called to the fact that he has omitted to sign the depositions recorded by him as required by para. 2, S...
Nundo Coomar Roy Vs. Goluck Chunder Masanta and ors.
Court: Kolkata
Decided on: Dec-02-1878
Reported in: (1879)ILR4Cal699
Richard Garth, C.J.1. Two points have been raised in this appeal:2. First.--That, as the plaintiff claimed to set aside the order made under Section 530 of the Criminal Procedure Code in favour of the defendant, and to have possession of the property by virtue of an ancient debutter title, he was bound to prove, not only that he had been in possession for upwards of twelve years, but also to prove the debutter title which he set up.3. Secondly.--That the learned Judge in this Court was wrong in supposing that there was some evidence of the debutter title upon which the Court below had acted.4. In the view which we take of the first point it is not necessary to decide the second.5. The first point we consider should be decided in accordance with the judgment of this Court in the case of Gossain Dass Chunder v. Issur Chunder Nath (I.L.R., 3 Cal., 223).6. The plaintiff there claimed possession of certain land under a deed said to have been executed in the year 1857, and he also stated in ...
RajnaraIn Singh Vs. Heeralal and ors.
Court: Kolkata
Decided on: Dec-02-1878
Reported in: (1880)ILR5Cal142
Richard Garth, C.J.1. We consider that this case is governed by the Full Bench judgment in the case of Bhimul Doss v. Choonee Lall (I.L.R., 2 Cal., 379), where it was virtually decided, that in joint families governed by the Mitakshara law, the principle of survivorship obtains until partition, and that upon a partition taking place, the distribution amongst the different members of the family is to be made not according to the ordinary Hindu rule of heirship, but per stirpes.2. Runglal having died subsequently to the institution of the suit, and also after the decision in the lower Court, the plaintiff will be entitled to a one-fourth share instead of the one-fifth share claimed by him....
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