Kolkata Court February 1879 Judgments
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Surgadass Vs. Wahidunnessa and ors.
Court: Kolkata
Decided on: Feb-19-1879
Reported in: (1880)ILR5Cal39
Garth, C.J.1. We think that there is no ground for this appeal, and that the Court below has come to a just conclusion. The first and main point raised by the appellant is, that there is no sufficient evidence to make Mir Haider Ali, the ancestor of the defendants, liable upon the bond in question. Now the first witness called by the plaintiff was a mookhtar in the employ of Mir Hadi Hossein, the uncle of Mir Haider, who lived close by him, and was in the habit of transacting his business, and borrowing money for him by means of bonds. This witness says, that he received from Mir Haider's karpurdaz, Ali Akbar, a blank paper signed and sealed by Mir Haider, and stamped with a bond stamp sufficient to cover Rs. 16,000; and that, by the instructions of Mir Hadi Hossein, he drew up the bond in question upon this paper for Rs. 16,000, having no doubts of the correctness of the transaction. It then appears clear from the evidence, that Rs. 16,000 was duly paid by the plaintiffs to Ali Akbar,...
Harbuns Sahai and ors. Vs. Bhairo Pershad Singh and ors.
Court: Kolkata
Decided on: Feb-19-1879
Reported in: (1880)ILR5Cal259
Ainslie, J.1. The appeal was filed on the 31st of August 1878, and is from an order dated the 13th of July 1878, setting aside a sale of land in execution of a decree, which decree was made in November 1875. The sale was set aside on the ground of irregularity causing substantial injury. The first application for execution of the decree was made on the 12th of November 1877, after the new Civil Procedure Code came into operation. It is objected that no appeal lies, on the ground that the case is governed by Act VIII of 1859, and that Section 257 of that Act (the old Procedure Code) enacts that an order setting aside the sale shall be final.2. It is contended, on the other hand, that the order is appealable under Section 588(m) of the new Code, which gives an appeal. It appears to us that the appeal lies. The opinions recorded by the Chief Justice and Mr. Justice Jackson in the Pull Bench case of Runjit Singh v. Meherban Koer (I.L.R., 3 Cal., 662) support this view, and we see no reason...
Shama Soondari Debi Vs. Raj Chunder Roy
Court: Kolkata
Decided on: Feb-13-1879
Reported in: (1879)ILR4Cal583
White, J.1. The appellant, who was the principal defendant in the first Court, appeals against a decree of the lower Appellate Court, reversing a judgment in his favour passed by the first Court.2. The respondent, who was the plaintiff in the first Court, and states herself to be a pardanashin woman, has sued the appellant and another defendant, who is a Court-peon, to recover compensation for causing her to be arrested in execution of an ex parte decree which the appellant had obtained against her in the Court of the Munsif of Shahazadpur.3. The suit in which the ex parte decree had been pronounced was brought by the appellant to recover from the respondent Its. 200, alleged to be lent to her for the marriage expenses of her son, and was based upon a 'roka' alleged to be executed by her. In the plaint in the present suit she charges that the ex parte decree was obtained by the appellant secretly and collusively, and without the service of a summons upon her; that the decree was subseq...
In Re: Act Xviii of 1869 and of the Uncovenanted Service Bank (Limited ...
Court: Kolkata
Decided on: Feb-13-1879
Reported in: (1879)ILR4Cal830
Richard Garth, C.J.1. We think that the Board of Revenue, North-Western Provinces, have not taken a correct view of the provisions of the Stamp Act. Before we look at Section 15 to see what instruments under the head of 'receipts' are exempt from duty, we must first look to Scheduleii to see whether the instrument in question is by Section 4 Chargeable with duty. It could only be chargeable under Article 7 if it were 'a receipt or discharge given for or upon the payment of money in satisfaction of a debt.'2. If, therefore, the Rs. 300 was paid in this instance by Mr. Robertson to Captain Cotton's account otherwise than in satisfaction of a debt, it would not be chargeable at all; and we find nothing in the facts stated or upon the instrument itself to show that it was paid in satisfaction of a debt.3. But even assuming that it was so paid, we consider that the document in question was not a 'receipt or discharge' within the meaning of the Act, because it was not given to the party who ...
Dwarka Nath Misser Vs. Hurrish Chunder and ors.
Court: Kolkata
Decided on: Feb-12-1879
Reported in: (1879)ILR4Cal925
Jackson, J.1. Notwithstanding the remarkable ingenuity displayed by Baboo Rashbehary Ghose, we are unable to discover that his argument amounts to anything more than an attempt to establish in an exceptional case that rights of occupancy are transferable. The mode in which, and the circumstances under which, the power of transferring such rights is sought to be exercised will continually vary, and although it might be possible to lay down a comprehensive rule which should suffice to exclude other such conceivable cases, I am not, for my part, anxious to frame any such formula. As I said during the argument, I desire in every case coming before me to decide that case to the best of my ability. Of course when in any decided cases, whether by myself or other Judges of the Court, we come upon arguments and considerations which are applicable to the case before us, although the two cases may not be precisely alike, I am very willing and ready to use those arguments. Now the matter under con...
ChIn Hong and Co. Vs. Seng Moh and Co.
Court: Kolkata
Decided on: Feb-10-1879
Reported in: (1879)ILR4Cal736
Garth, C.J.1. We think there is no ground for this appeal. In order to make the defendants liable for the loss of the goods in question, it should have been shown that the defendants had no right to land them upon the godowns.2. Perhaps Mr. Bell may be justified in saying that, by the terms of the bill-of-lading the defendants were bound to give the plaintiffs the option of landing the goods 'from the ship's tackle,' and that they had no right to land them at the godowns without giving the plaintiffs that option.3. But then we think it clear from the evidence that the plaintiffs consented to the goods being landed at the godowns.4. It appears that when once the ship had been placed alongside the wharf, the goods could not have been landed from the 'ship's tackle,' according to the proper meaning of that expression, and that the only way to land them then was at the godowns; and the plaintiffs evidently consented to this course, because they paid without objection a sum for wharfage, &c...
Bhugeeruth Berah Vs. Moneeram Banerjee and ors.
Court: Kolkata
Decided on: Feb-07-1879
Reported in: (1879)ILR4Cal855
Birch, J.1. In this case the Munsif gave the plaintiff a decree, holding that he being the purchaser of a one-anna share in the tenure, and. having been recognized by the zamindar as tenant thereof, the sale in execution of the decree against Behari could not pass the rights of the plaintiff to the purchaser Moneeram. The Munsif says that he does not see any reason why the plaintiff should lose his share because the sale took place in execution of a decree for arrears of rent of which decree he had no notice. And he accordingly gave the plaintiff a decree.2. Upon appeal the Subordinate Judge has dismissed the plaintiff's suit upon the ground that there was no evidence of any fraud on the part of the purchaser Moneeram, and that Moneeram had acquired an unimpeachable right in the property by reason of his purchase. Upon the case coming up in special appeal, it was sent down to the Subordinate Judge to try an issue as to whether the plaintiff was, as alleged, the koorfa tenant under Beha...
Bussun Lall Shookul Vs. Chundee Dass and ors.
Court: Kolkata
Decided on: Feb-06-1879
Reported in: (1879)ILR4Cal687
Richard Garth, C.J.1. The Judges of the Division Bench having differed in opinion, and the judgment of the senior Judge having prevailed, this case comes before us on appeal from his decision.2. The suit was brought by the plaintiffs to obtain a decree declaring that certain lands, which they hold as tenants to the defendant at a rent of Rs. 105, comprised an area of 8 drones, 7 kanis, and 2 gundas.3. The Division Bench were agreed that, upon the facts proved, the plaintiff's were entitled to the relief which they prayed. But the objection made by the defendant, upon which the learned Judges differed in opinion, was, that in a suit, No. 308 of 1874, which was brought by the present defendant against the present plaintiffs for arrears of rent, an issue was distinctly raised between the parties, whether the land held by the plaintiffs at the rent of Rs. 105 was 4 drones, 7 kanis, and 19 gundas, as the then plaintiff contended, or 8 drones, 7 kanis, and 2 gundas, as the then defendants co...
Luckhy NaraIn Vs. Kally Puddo Banerjee
Court: Kolkata
Decided on: Feb-06-1879
Reported in: (1879)ILR4Cal882
Birch, J.1. In this case we think that the order of the Judge cannot be supported, as he has proceeded upon a wrong principle. It seems that some accounts were filed by the decree-holder showing the rents payable by the farmers of the estate under the arrangement subsisting before the dispossession; but they have not been sent up to this Court. Probably they have by mistake remained in the lower Court. The principle upon which wasilat should be estimated in this case is to ascertain from the decree-holder what sum he has realized in respect of the 7-anna share which remained in his possession during the years for which wasilat is claimed, and on a comparison of his account as to that 7-anna, it will be easy to fix the proportionate amount due upon the 9-anna share from which he was dispossessed under the decree of this Court. The Judge remarks that 'the point he has to consider is not what the decree-holder might by another course of management have realized during the period in questi...
Unnoda Churn Das Biswas Vs. Mothura Nath Dass Biswas and ors.
Court: Kolkata
Decided on: Feb-05-1879
Reported in: (1879)ILR4Cal860
Richard Garth, C.J.1. Mr. Justice Markby's view appears to have been founded on the supposition that the sale of the patni did not of itself avoid the under-tenure, unless it was followed by an intimation by the purchaser or those claiming under him, that he or they intended to exercise their right to cancel it, or, in other words, that the under-tenures were only voidable at the option of the purchaser or his assigns, and that this option must be exercised within a reasonable time.2. Now the language of Beng., Act VIII of 1865 is, that 'purchasers of tenures sold under that Act acquire them free from all incumbrances which may have accrued thereon by any act of any holders of those tenures, their representatives, or assigns.'3. I think that must mean, that at the time when the purchaser acquires the tenure, all under-tenures created by the former holder of the tenure are ipso facto avoided by the sale; and that he and those claiming under him are by Article 120 of the Limitation Act e...
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