Kolkata Court July 1878 Judgments
Peary Mohun Mookerjee Vs. Rash Behary Bundopadhya
Court: Kolkata
Decided on: Jul-28-1878
Reported in: (1879)ILR4Cal346
Richard Garth, C.J.1. The judgments of both the lower Courts in this case have proceeded upon an erroneous view of the Rent Law.2. The suit is brought by the plaintiff, who is the owner of a half share of a patni, to recover from the defendant the rent of that half share (which has been fixed at Rs. 111-3-10 annually), upon the ground that the defendant has become the tenant of the jamma at an auction-sale held on the 12th of Kartick 1280. The rent claimed is from Bysack 1280 to the end of 1282. The defendant admits the plaintiff's right to the rent which accrued due after he (the defendant) purchased the jamma, but disputes the plaintiff's right to recover the rent which accrued due before his purchase. As a matter of fact the plaintiff did sue and obtain a decree against the heir of the former tenant for the rent due for the year 1280; but be abandoned that decree, and is now trying to recover the same rent from the defendant in this suit.3. It was contended before the Munsif that as...
Tag this Judgment!Raj Bullubh Sen and ors. Vs. Oomesh Chunder Rooz
Court: Kolkata
Decided on: Jul-26-1878
Reported in: (1880)ILR5Cal44
Jackson, J.1. It appears to me that the judgment of the lower Appellate Court is right upon the point raised.2. I would hold the defendants to be concluded, not upon the ground that they are bound by the act or consent of the father, through whom, they say, they do not claim, but upon this ground, that the act of the widow, sanctioned by the concurrence of the then next heir and reversioner, was in itself a valid ground.3. This, so far as I know, is the rule usually acted upon by the Courts in Bengal, and although in the case of Gunga Pershad Kur v. Shumbhoo Nath Burmun (22 W.R., 393) reference is made to some conflict of opinion upon the subject, I am not aware there is such authority opposed to the view which I take as to oblige us to refer this question to a decision of a Full Bench.4. I would, therefore, dismiss this appeal with costs....
Tag this Judgment!Kumood NaraIn Bhoop Vs. Purna Chunder Roy
Court: Kolkata
Decided on: Jul-25-1878
Reported in: (1879)ILR4Cal547
Jackson, J.1. Now I apprehend that, where the state of jurisdiction established by Act X of 1859 is still in force, nothing can be clearer than this, that the jurisdiction of the Civil Courts can only be ousted in cases where the subject of dispute and the parties are exclusively such as are annexed to the jurisdiction of the Revenue Courts under that Act.2. Therefore, in order to make the suit cognizable under Section 24 of Act X of 1859, it would have to be shown that the suit was one by a zamindar, or other person in the receipt of rent, against an agent employed by him in the management of land or collection of rents, for money received in the course of such employment, or for papers in his possession, and the course of action must include nothing else, or, at least, not any other subject not cognizable by the Revenue Courts.3. By Section 23 of the same Act, el. 6, it is provided that all suits to recover the occupancy or possession of any land, farm, or tenure, from which a ryot, ...
Tag this Judgment!Bejoy Chunder Banerjee Vs. Kally Prosonno Mookerjee
Court: Kolkata
Decided on: Jul-24-1878
Reported in: (1879)ILR4Cal327
Markby, J.1. It is not necessary to consider in this case the effect of the unchastity of Bhobotarinee upon her right to inherit her husband's estate. For oven if she had been chaste, we agree with the Subordinate Judge that she could not succeed during her husband's life time, and that, however long her husband might be absent, he would, upon his return, resume his position both as to his wife and his property. The inference of a man's death from his absence maybe rebutted at any time. This we believe to be the universal rule. Nor, under the circumstances, could Bhobotarinee, whom we must take to have originally held possession on her husband's behalf, acquire a title by adverse possession against her husband. One who holds possession on behalf of another does not by a mere denial of that other's title make his possession adverse so as to give himself the benefit of the Statute of Limitation. But the question whether the plaintiff has gained a title by possession is different. He did ...
Tag this Judgment!Fleming Vs. Koegler
Court: Kolkata
Decided on: Jul-24-1878
Reported in: (1879)ILR4Cal237
Richard Garth, C.J.1. I think that the learned Judge in the Court below has arrived at a just conclusion in this case.2. The suit was brought by the plaintiffs, Messrs. Nicol, Fleming & Co., for the breach of a contract made with them by the defendants on the 16th of July 1877, and which is in these words:Calcutta, 16th February 1877.Hooper Section to arrive after completion of two country voyages for London. Graf and Banziger.1,300 tons oil-seeds or wheat. 3-12-6, oil-seeds.3-10, wheat. On notice in May or June.First notice to be given for this cargo 20 cwt.Nicol, Fleming & Co.3. The only question in the case depends upon the true meaning of the words 'after completion of two country voyages'; and we have to put a reasonable construction upon these words, having regard to the state of circumstances at the time when the contract was made,4. The defendant is a German merchant carrying on business here under the name of 'Graf and Banziger.' Mr. Krieg, one of the assistants in that firm, ...
Tag this Judgment!Biddomoye Dabee Dabee Vs. Sittaram
Court: Kolkata
Decided on: Jul-24-1878
Reported in: (1879)ILR4Cal497a
Richard Garth, C.J.1. We are of opinion that, under the circumstances stated, the plaintiff is entitled to judgment in both cases.2. During the plaintiff's absence from home the jemadar Sheoruttun was left in charge of her house and property as her servant. He was never possessed of the articles in question in any other character. He had only the bare custody of them, and had no authority to deal with them in any way whatever. We do not consider that such custody is 'possession' within the meaning of the Contract Act, Section 178.3. But even if the jemadar could be considered as having taken the articles into his own possession, we think the case is clearly within the scope of the second proviso to hat section. The moment that they were removed by him from he box in which they were placed, for the purpose of being pawned to the lawful owner.4. In the case of Greenwood v. Holquette (10 B.L.R., 42) where a piano had been hired from the plaintiff with an option of purchase and the hirer s...
Tag this Judgment!Schiller and ors. Vs. Sooltan Chand and ors.
Court: Kolkata
Decided on: Jul-22-1878
Reported in: (1879)ILR4Cal252
Richard Garth, C.J.1. The defendants have appealed, and the amount of damages not being disputed, we have only to consider whether the defendants were justified in cancelling the contract. The defendants rely on the provisions of Sections 39 and 51 of the Indian Contract Act of 1872. Under Section 39 they say that the plaintiffs not having paid for the goods on delivery, they have refused to perform the contract in its entirety: and that the defendants had, therefore, a right to cancel it. This is not my view of the proper construction of Section 39.2. That section, as I understand it, only means to enact what was the law in England, and the law here, before the Act was passed,--viz., that where a party to a contract refuses altogether to perform, or is disabled from performing, his part of it, the other side has a right to rescind it.3. This rule will be found explained in the notes to Cutler v. Powell (2 Smith's L.C., 1, at p. 12, 7th ed.). The case of Freeth v. Burr (L.R., 9 C.P., 2...
Tag this Judgment!Luchmessur Singh Vs. Leelanund Singh
Court: Kolkata
Decided on: Jul-22-1878
Reported in: (1879)ILR4Cal599
Jackson, J.1. In the Court of the Subordinate Judge a question of fact was raised--viz., whether the ferry, as now existing, touched on the eastern side upon the defendant's village or plaintiff's. Upon the evidence, and after personal inspection, the Subordinate Judge was of opinion that the land at that particular spot belonged to the plaintiff. He observed, that although the defendant had called witnesses to show that the spot of land in question belonged to him, no document whatever was produced in support of what they said, and, in short, he did not believe those witnesses. Far from that being the case, it seems that a good many documents, and some of them of an altogether unimpeachable kind, were produced by the defendant, and it appears that there was no particular reason why the witnesses should be disbelieved. But in our opinion that point is not really material, if we assume that the point of debarcation at the ferry on it eastern side has been shifted from within the plainti...
Tag this Judgment!Kaliprosonno Ghose and anr. Vs. Kamini Soonduri Chowdhrain
Court: Kolkata
Decided on: Jul-20-1878
Reported in: (1879)ILR4Cal475
Richard Garth, C.J.1. We consider that the view which the lower Court has taken of these cases is not altogether correct.2. In the first place, the Subordinate Judge was wrong in supposing that, by taking an assignment of the mortgages bond fide in the name of a trustee, the plaintiff could not prevent the merger of the mortgagor's and mortgagee's interests, and consequently the extinguishment of the mortgage debt. The assignment was taken in the trustee's name expressly for the purpose of preventing the merger, and keeping alive the two estates; and there is ample authority that this object may properly and legally be carried out by means of an assignment of this nature--see Watts v. Symes (1 De. and G., M. and S., 240), and Adams v. Angell (L.R., 5 Ch. Div., 634).3. The real objection to these suits, in an equitable point of view, appears to us to he this--that the plaintiff, who is the beneficial owner of Alampur, subject to the mortgages, and as such, liable, conjointly with the ow...
Tag this Judgment!In Re: the Matter of the Empress Vs. Abdool Kurreem
Court: Kolkata
Decided on: Jul-19-1878
Reported in: (1879)ILR4Cal10
White, J.1. The prisoner before us has appealed against the finding of the Sessions Court on the facts and also against its conclusions in law. It appears to me unnecessary to enter into the merits of the appeal, for taking the facts as found by the Court to be true and the law applied by it to be correct, I am of opinion that this conviction cannot be sustained.2. The prisoner is charged with the abetment of an offence under Section 494 of the Penal Code. To establish a charge of abetment under the Penal Code, the accused must be proved either to have instigated or aided some other person to commit the offence, or to have engaged with another in a conspiracy for the commission of the offence. The acquittal of Abdool Sobhan, who was jointly charged with the prisoner, puts an end to the case of conspiracy, for, except with Abdool Sobhan, there is no evidence to support a case of conspiracy. If therefore, the conviction can be upheld, it must be in consequence of the prisoner having inst...
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