Kolkata Court September 1878 Judgments
The Agra Bank Limited Vs. Dhuronidhur Sen and anr.
Court: Kolkata
Decided on: Sep-16-1878
Reported in: (1879)ILR4Cal380
Markby, J.1. The facts of this case are fully set out in the Judgment of Mr. Justice Mitter delivered in Court below. They are shortly as follows:One Brojonath having obtained a decree for damages against the executors of a surviving partner in an indigo concern, sold it to one Giridur, from whom it passed to the defendants. The executors then sold the indigo concern with dena and powna to the Agra Bank. In 1871 the then decree-hold or applied to the Court in which the decree was passed to substitute the Agra Bank in the place of the original judgment debtors. A notice was issued and duly served upon the Manager of the Bank, who did not think fit to appear upon the notice, and the application was granted.2. In December 1874 an application was made by the defendants to execute the decree against the Bank. The Bank then appeared to oppose the application, but execution was ordered to proceed. The Manager then applied to this Court under 24 and 25 Vict., c. 104, Section 15, to set aside t...
Tag this Judgment!Jallidar Singh Vs. Ram Lal and ors.
Court: Kolkata
Decided on: Sep-16-1878
Reported in: (1879)ILR4Cal723
Jackson Officiating, C.J.1. The subject of this suit is a house in the City of Patna, which was the property of a Hindu named Gopi Sahu and his son Jhamak Sahu, who are governed by the Mitakshara law.2. One Musamut Rajo obtained a decree for money against Jhamak Sahu, and, in execution thereof, caused his right and interests in the property to be sold by auction. The defendant Ram Lal was the purchaser, and he obtained possession on the 21st May 1875. In the meantime, however, the plaintiff Jallidar Singh had, on the 15th of May, purchased the house from Gopi Sahu, the father, as belonging to him exclusively. He says he was dispossessed by the auction-purchaser, and sues to recover possession. It is not now contended that the house was the exclusive property of the father.3. The points urged in special appeal are, that though the son had an interest in the property, it was one that could not be transferred during his father's lifetime, and that even if saleable, the sale would not conf...
Tag this Judgment!Fowle Vs. Fowle
Court: Kolkata
Decided on: Sep-14-1878
Reported in: (1879)ILR4Cal260
Jackson, Officiating C.J.1. This was a petition for is solution of marriage by a wife, Charlotte Rebecca Fowle, on the ground of adultery, cruelty, and desertion, filed under the Indian Divorce Act in the Court of the Recorder at Rangoon in British Burmah.2. The husband, Edward Fowle, as respondent, admitted the principal act of adultery or rather course of adulterous life charged, but denied the other adulteries, also the cruelty and the desertion. He avowed, however, that the petitioner had connived at the adultery which he admitted.3. The suit having come on for trial, the Recorder found that cruelty had not been committed, that the petitioner had not been deserted, that the adulteries charged previous to an adulterous connection with a Burmese woman, named Mahkin, had not been proved; but on the ground of the last-mentioned adultery, which had not been condoned, and as to which he found no connivance or acquiescence, he decreed a judicial separation with alimony, but dismissed the ...
Tag this Judgment!Muthora Nath Pal Vs. Chundermoney Dabia
Court: Kolkata
Decided on: Sep-14-1878
Reported in: (1879)ILR4Cal817
Markby, J.1. (after stating the facts of the case, continued): The plaintiff has appealed. One ground taken in special appeal is, that the sale by the Court of Nuddea in execution of the decree of the Court of Hooghly could not transfer more than the rights and interests of the mortgagor: and that the Court of Hooghly had no jurisdiction to make a decree which would affect the rights of Chundermoney. But the Hooghly Court had jurisdiction to give a decree for the debt due under the mortgage-bond, and it had also jurisdiction to transfer that decree to any other Court for execution. So also the sale by the Court of Nuddea, to which the decree had been transferred, was perfectly regular; and I can see no objection to our dealing with this case precisely as if the property had been sold in execution of a decree of the Nuddea Court for the debt due under the mortgage-bond. What then would have been the effect of a sale in execution of such a decree of the Nuddea Court? It would, according ...
Tag this Judgment!Purshan Ram and ors. Vs. Madhoo Proshaud Singh and ors.
Court: Kolkata
Decided on: Sep-13-1878
Reported in: (1879)ILR4Cal520
Ainslie, J.1. The plaintiffs sued to obtain possession as auction-purchasers of the right of Parbhu Singh in a dur-mokurari tenure at an execution-sale held on the 15th of June 1875. The dur-mokurari tenure was held jointly by Parbhu Singh and Bal Gobind.2. The defendants, who represent the mokuraridar, brought a suit against the dur-mokuraridars for arrears of rent for certain months-i.e., from Magh to Joyt 1282, corresponding with January to May 1875. That suit was not commenced until the 25th of August of that year, and the decree in it is dated the 27th of September 1875. That decree contains an order framed under Section 52 of the Rent Law, directing the ejectment of the dur-mokuraridars in the event of the arrears decreed not being paid within fifteen days. That suit was brought and decree obtained after the sale of the interest of Parbhu to the plaintiffs without any reference to them.3. It may be that the landlord was justified in refusing to notice the transfer of this tenure ...
Tag this Judgment!Nilruttun Mundle Vs. Komollochun Dutt and ors.
Court: Kolkata
Decided on: Sep-12-1878
Reported in: (1879)ILR4Cal360
Markby, J.1. We think that the District Judge was wrong in holding that the grant of probate could be impugned in this suit.2. The grant of probate is the decree of a Court which no other Court can sot aside except for fraud or want of jurisdiction, and no such ground is alleged here.3. What, however, the District Judge really meant (as appears from his second judgment) was, that the grant of probate was not conclusive as to the genuineness of the will; and that, notwithstanding the probate, the will might be questioned in a civil suit in which the will was relied on.4. In this view also we are unable to agree. Section 242 of the Succession Act declares, that 'probate or letters of administration shall have effect over all the property and estate, moveable or immoveable, of the deceased, throughout the province in which the same is granted, and shall be conclusive as to the representative title against all debtors of the deceased and all persons holding property which belongs to him, a...
Tag this Judgment!Fehrsen Vs. Simpson
Court: Kolkata
Decided on: Sep-11-1878
Reported in: (1879)ILR4Cal514
Broughton, J.1. Mr. Piffard, for Mr. Abercrombie, contended that the deed of 1874 is, according to Scotch law, a will and a disposition of the fund in terms of the will of Dr. Simpson. But there is no evidence of a Scotch domicile of Mr. and Mrs. Fehrsen, and if there were, this deed is not a, disposition by bequest in terms of the will of Dr. Simpson, such bequest is there directed to be made 'to any one of the children they may select.'2. It appears to me that the deed of 1874 could not operate upon the fund in consequence of the direction of the testator, Dr. Simpson, that it should not be transferred in the lifetime of his daughter.3. I concur in the argument of Mr. Phillips, for the brother and sister of Mrs. Fehrsen, that she had nothing to settle under her father's will, and that the plaintiffs in this case consequently take nothing under the settlement. I also agree with his contention that the will cannot be said to be an execution of the power, for, even if it referred to the...
Tag this Judgment!Lala Kali Prosad Vs. Buli Singh
Court: Kolkata
Decided on: Sep-11-1878
Reported in: (1879)ILR4Cal790
Tottenham, J.1. In this appeal there were two points for decision, 1st whether or not the doctrine of lis pendens applies to the case; and 2ndly, if it does apply, whether the defendant can escape the effect of it on the plea that he had notice of the proceedings taken in execution of the decree obtained by the mortgagee of the property in which the subject of the present dispute is included. The lower Appellate Court held, that the doctrine of lis pendens did not apply. We are of opinion that in so holding the District Judge was in error. The defendant, respondent, purchased the property, or rather the right and interest in it of his debtor, at a sale in execution of his own decree on the 7th of September 1874. At that time there was pending in the same Court a suit against the same debtor brought by his mortgagee to recover a debt secured by the mortgage of property, which included that now in dispute; and on the 17th of September a decree was passed in that suit ordering the amount ...
Tag this Judgment!Doyal Mistree Vs. Kapoor Chund and ors.
Court: Kolkata
Decided on: Sep-04-1878
Reported in: (1879)ILR4Cal318
Ainslie, J.1. On the 8th day of March 1878 a decree was made by the Small Cause Court of Patna for 279 rupees in a suit by Doyal Mistree against Kupoor Chund and another. The decretal order is in these words: 'The case is accordingly decreed ex parte with costs.' An application for rehearing was made on the ground that the defendant's pleader had been unable to attend Court at the time when the suit was heard. On that the Judge makes an order, in which he states that 'this case was not decided ex parte under Section 100 of the Civil Procedure Code; the defendant applying for a new trial had put in a vakalatnamah; he only did not appear when the case was called on for hearing.' He then goes on to say that as the defendant did not pay in the amount of the decree with his application for a new trial, he was unable to entertain it. He, therefore, holds 'that the application does not fall under the first part of Section 21 of the Small Cause Court Act, and that it falls under the second par...
Tag this Judgment!Oghra Singh Vs. Ablakhi Kooer and anr.
Court: Kolkata
Decided on: Sep-03-1878
Reported in: (1879)ILR4Cal536
Mitter, J.1. The only point that has been raised before us is that Section 50 has no application to this case, because that section refers only to documents the registration of which is optional.2. We think that this contention is valid. Section 50 is as follows;--' Every document of the kinds mentioned in Clauses 1 and 2 of Section 18 shall, if duly registered, take effect as regards the property comprised therein against every unregistered document relating to the same property.' Now, in this case, in order to apply Section 50, it must be made out that the defendant's document is one of the kinds mentioned in Clauses 1 and 2 of Section 18; but it is quite clear that the document does not come within those clauses, because the property in suit was sold to the defendant for Rs. 200. That being so, it is quite clear that Section 50 has no application. This view of the section in question has been taken by this Court in the case of Ryasuttulla v. Doorga Churn Paul; (15 B.L.R., 294. s.c. ...
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