Kolkata Court August 1878 Judgments
Grish Chunder Shamunt Vs. Ahamudeen
Court: Kolkata
Decided on: Aug-29-1878
Reported in: (1879)ILR4Cal350
Jackson, Officiating C.J.1. It seems clear that, upon the facts which have come out in the course of the hearing, the plaintiff had really no just cause of action against the tenant-defendant. The tenant had paid his rent, as he had been accustomed to pay to the joint owners. It appears that the money found its way to the other co-sharers, who admit, as defendants in the suit, the receipt of it. The plaintiff's remedy is against them, and not against the tenant. It appears to us that the order of the learned Judge who tried the special appeal, must be varied, so far that the suit as against the tenant-defendant must be dismissed with costs.2. If there be any question remaining to be tried between the plaintiff and the remaining defendants, they ought to be tried, but as it is there must be judgment for the tenant-defendant with costs....
Tag this Judgment!issurree Dassee Vs. Abdool Khalak
Court: Kolkata
Decided on: Aug-29-1878
Reported in: (1879)ILR4Cal415
Mitter, J.1. In special appeal the decree-holder contends that, although in form the application of the 22nd of December 1874 was an application to execute the decree, in substance, under the circumstances of the case, it should be considered as an application to continue the old proceedings. We think that this contention is valid. It is true that the Court executing the decree disposed of the application of the 10th of July 1871, after the judgment-debtor's property was sold; but the effect of the subsequent order, dated 14th of May 1873, by which the sale was set aside and the decree-holder directed to refund the money which he had withdrawn from the Court, was to nullify all the proceedings taken on the application of the 10th of July.2. We think the facts of the case clearly come within the principle of the decision quoted by the learned Judge--Baboo Pyaroo Tuhobildarinee v. Syud Nazir Hossein (23 W.E., 123); although, no doubt, the facts are not exactly similar: but the principle ...
Tag this Judgment!Purnanund Asrum Vs. Rookinee Gooptani
Court: Kolkata
Decided on: Aug-29-1878
Reported in: (1879)ILR4Cal793
Markby, J.1. It appears to me that the judgment of Mr. Justice Ainslie was right. The plaintiff, who was an auction-purchaser, and claimed the privileges of Section 37 of Act XI of 1859, sued, not to eject but to enhance the rent of the defendant, alleging him to be a person holding a lease of land whereon a dwelling-house had been erected, and to have held the same at what was originally an unfair rent, and not to have been holding at a fixed rent equal to the rent of good arable land for a term exceeding twelve years,2. The defendant, however, stated that he was a person coming under the first exception of the 37th section, that is to say, that he was the holder of an istemrari or mokurari tenure which had been held at a fixed rent from the time of the Permanent Settlement.3. The question arose, as I understand, in this case, in what manner the defendant was to make out this claim of exemption, and the opinion of Mr. Justice Ainslie was, that in cases of this sort, when the plaintiff...
Tag this Judgment!Surnomoyee Dabee Vs. Koomar Purresh NaraIn Roy
Court: Kolkata
Decided on: Aug-28-1878
Reported in: (1879)ILR4Cal576
White, J.1. The point raised by this appeal is, whether the defendant (the respondent before us) is entitled from the annual profit,--viz., Rs. 11,700,--payable by him to the plaintiff (the appellant before us) under a patni-kabuliyat, to deduct that portion of the road-cess levied upon the land, the subject of the patni-tenure, which falls according to Bengal Act X of 1871 upon the plaintiff, but has been paid by the defendant. If this question had been one pure and simple of the construction of the patni-kabuliyat, we should have taken time to consider the validity of an objection raised by Baboo Rash Behary Ghose on behalf of the respondent, that a special appeal does not lie in such a case under the new Code; but the decision of this appeal involves not only that question, but also a consideration of the Bengal Road Cess Act, and of the effect of its provisions upon contracts made prior to its passing, and we are clearly of opinion that the special appeal lies.2. (After shortly sta...
Tag this Judgment!Sadhu Churn Doss Vs. Raghubanund Doss and ors.
Court: Kolkata
Decided on: Aug-22-1878
Reported in: (1879)ILR4Cal425
Markby, J.1. The only question which remains to be decided in this case is one of Hindu Law,--namely, to what share in the family property is the plaintiff entitled.2. The common ancestor of the family is one Srihuri Doss, who had three sons, Balmokund, Luchmidar and Dullubanund.3. The plaintiff is one of the sons of Balmokund, but he was adopted by Dullubanund, who died in the lifetime of Srihuri. The defendants are the other sons of Balmokund, and the son of Luchmidar. The plaintiff has established his right to recover a share in the family property, but while he claims one-third just as if he were a natural son of his father, the defendants say, that, as an adopted son, he is only entitled to one-sixth, the remaining five-sixths being equally divided between the sons of Balmokund and Luchmidar.4. I have had some doubt whether this question should have been raised at all in the present suit; and whether, it not being alleged that the family had separated, a suit by one member against...
Tag this Judgment!Nobodeep Chunder Shaha Vs. Sonaram Dass and ors.
Court: Kolkata
Decided on: Aug-20-1878
Reported in: (1879)ILR4Cal592
Mitter, J.1. In this case the Munsif awarded a decree for 14 rupees 2 annas 3 gundas and 2 krants as arrears of rent for the year 1282 (1875), against the defendants Sonaram Dass, Ramanando Dass, and Ramneedhee Dass the sons of Sheetaram Dass. it appears from the finding of the Courts below that these three brothers constitute a joint Hindu family, and the tenure, the rent of which is sought to be enhanced, belongs to this joint family.2. One of the questions raised in this case was, that notice of enhancement was not served on Ramneedhee Dass. The facts with reference to this objection are those:These three brothers, as already stated, are members of a joint Hindu family, Ramneedhee Dass resides at Kooch Behar, where he acts as mooktear. One notice of enhancement was issued by the zamindar, and was served personally on Sonaram Das and Ramanando Dass, who reside in their family residence. The Munsif was of opinion that under these circumstances, the service of the notice was sufficient...
Tag this Judgment!Kherodemoney Dossee Vs. Doorgamoney Dossee and ors.
Court: Kolkata
Decided on: Aug-17-1878
Reported in: (1879)ILR4Cal456
Richard Garth, C.J.1. During the argument of this case, I confess I entertained some doubt upon both the questions involved in it; but after hearing a very able argument, for which I desire to thank the learned Counsel on both sides, I have arrived at the same result as my learned brother, upon the following short grounds:2. Upon the authority of the Tagore case (9 B.L.R., 377), and the decisions in this Court which have been already referred to, I consider that the limitation in favour of the sons of the testator's sister and her husband are void.3. I had some doubt at; one time whether Mr. Hill's argument, founded on the rule laid down in Hawkins on Wills, page 71, was not well founded,--viz., that where a devise was made to a class, and some one or more of that class were living and capable of taking at the death of the testator, there was no reason why the devise should not take effect in favour of the person or persons so capable of taking, and then open out afterwards to let in a...
Tag this Judgment!Fuckhrunnissa Begum Vs. Ebrahim and anr.
Court: Kolkata
Decided on: Aug-17-1878
Reported in: (1879)ILR4Cal531
Richard Garth, C.J.1. I consider that in this case the appeal ought not to be heard. The decision of the learned Judge, which is appealed against, is not a judgment or decree which determines or affects the entire claim of the plaintiff. It is a decision which he arrived at on the settlement of issues, upon the validity of a hibbanama which was set up by the defendant as an answer to a portion of the plaintiff's claim.2. As regards the rest of the claim, which is not affected by this hibbanama the Judge has framed certain issues, which will come on to be tried in due course; but the defendant has thought proper in the meantime to appeal from this partial decision. No authority has been adduced by the defendant's Counsel to justify an appeal under such circumstances; and I consider that, looking to the language of the Charter, as well as upon grounds of judicial convenience, the appeal ought not to be allowed.3. The fifteenth clause of the Charter, upon which the appellant relies, says ...
Tag this Judgment!Wilson Vs. Howard
Court: Kolkata
Decided on: Aug-16-1878
Reported in: (1879)ILR4Cal231
Richard Garth, C.J.1. The first question we have to decide is one raised by the respondent--Whether any appeal lies at all from the refusal of the Judge to confirm an award? 2. It is said that the refusal was not a judgment within the meaning of Section 15 of the Charter, and a Full Bench decision (B.L.R. Sup. Vol. 505; s.c.6 W.R. Mis., 83) was cited in support of that contention, where it was held that an appeal does not lie against the refusal of a Judge to allow an award to be filed under Section 327.3. But we think that case very plainly distinguishable from the present. The application there was made in a case referred (not in a suit, but) by agreement of the parties. The object of the application was to give the Court jurisdiction in the matter, and to enable the successful party to enforce the award, summarily, by judgment and execution. He might in that case have brought a suit upon the award, so as to enforce it in another way; and if any doubt existed as to whether the award ...
Tag this Judgment!Ram Chunder Ghosaul Vs. Juggutmenmohiney Dabee
Court: Kolkata
Decided on: Aug-16-1878
Reported in: (1879)ILR4Cal283
Richard Garth, Kt., C.J.1. This case comes before us under circumstances which naturally give rise to much suspicion and distrust, and which should induce us, in my opinion, to make every reasonable presumption in the defendant's favour.2. It is brought by the managing member of a Hindu family to enforce a mortgage said to have been made to him by one of his brothers, Hurrish Chunder Ghosaul, so far back as the 1st of February 1842, more than thirty-six years ago. The original consideration for this mortgage having been (according to the plaintiff's own story) less than Rs. 8,000, his present claim upon it, with compound interest, is about three lacs and ten thousand. It is brought at a time when the brother, who is said to have made the mortgage, is dead; when his widow is dead; and when in fact no evidence remains of the real nature of the transaction, except that of the plaintiff himself; and the lady against whom the suit is brought is a daughter of the alleged mortgagor, who had n...
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