Kolkata Court February 1880 Judgments
Ramkrishna Dass Surrowji Vs. Surfunnissa Begum and ors.
Court: Kolkata
Decided on: Feb-28-1880
Reported in: (1881)ILR6Cal129
J. W. Colvile, J.1. In this case the appellant sued on a mortgage title, completed, as he alleged, by foreclosure under Reg. XVII of 1806, Section 8, to recover possession of the property in suit from the respondent, who held it as purchaser at an execution-sale in a suit against the mortgagor. The mortgage-deed was in the English form, with a power of sale. Inasmuch as it was sought to be enforced in the mofussil, the procedure prescribed by the Regulation has been applied to it as if it were a mere bye-bil-wafa, or deed of conditional sale. The suit is the ordinary suit, which, in such cases, the mortgagee, who has foreclosed, is obliged to bring in order to recover possession of the mortgaged premises, with this difference only, viz., that it is brought against the purchaser under the execution-sale as well as against the mortgagor, and that the former is the substantial defendant.2. In such a suit the plaintiff has to make out his title to dispossess the other party, and any object...
Tag this Judgment!Beerchunder Manikya Vs. Maymana Bibee and ors.
Court: Kolkata
Decided on: Feb-27-1880
Reported in: (1880)ILR5Cal736
Morris, J.1. In this case the decree was transferred for execution from the Court of the Munsif of Ramroygram, Zilla Tippera, to the Court of the Munsif of Begumgunge in Zilla Noakhally. The decree-holder applied to the Munsif for execution by sale of the immoveable property of the judgment-debtor. The Munsif allowed the application. On appeal the Judge dismissed it, on the ground that, as the provisions of Section 65 of the Rent Law were applicable to the case, the decree-holder ought first to have shown that he was unable to obtain satisfaction by execution against the person or immoveable property of the debtor,2. This, we observe, is the condition precedent which the law enjoins 'within the district in which the suit is instituted' before a judgment-creditor can take out execution against the immoveable property of his debtor. But in the present instance the application for execution against the immoveable property of the debtor was not made within the district in which the suit wa...
Tag this Judgment!Hajee Syud Mahomed Vs. Mussamut Ashrufoonnissa
Court: Kolkata
Decided on: Feb-24-1880
Reported in: (1880)ILR5Cal759
Pontifex, J.1. In order to bring the case within Article 87 of Act IX of 1871, and to prevent limitation, the plaintiff would have to show that there was a mutual, open, and current account between the parties, in which there were reciprocal demands. Now I must say that I should have considerable hesitation in holding that there was ever between these parties a mutual account, although, in the instances, which I have mentioned, the defendant had in fact paid moneys into plaintiff's bank which were in excess of his liabilities; for I do not think that the defendant could at any time have said--'I have an account against you, the banker.' During nearly the whole of that time the banker could have said 'I have an account against you, the defendant;' but unless they could each have said to the other. 'I have an account against you,' I do not see how these could be 'mutual' accounts. But even supposing that the accounts between these two parties could be called mutual accounts, and that the...
Tag this Judgment!Ram Sahai Sing and anr. Vs. Maniram and ors.
Court: Kolkata
Decided on: Feb-18-1880
Reported in: (1880)ILR5Cal807
Pontifex, J.1. The rule that has been argued before us discloses rather a peculiar state of circumstances. The applicants, in October 1877, applied to the Subordinate Judge of Patna for permission to sue as paupers. On the 28th February 1878 he rejected that application, on the ground that he was bound to do so, as in his opinion, according to the plaintiffs' own petition, they were barred by limitation. Against that order the applicants made an appeal to this Court; but, on the 19th August 1878, this Court, considering the matter not properly a matter for appeal, dealt with it as follows by way of revision,--holding that, at that stage, the application could not be rejected on the score of limitation applying. They said that, as the applicants had paid the stamp fees on the appeal on the principle of having given up their claim for mesne profits, they might apply to the Court below again to admit their application as paupers if the mesne profits were excluded from their petition. Ther...
Tag this Judgment!imrit Tewari and ors. Vs. Suput Singh and ors.
Court: Kolkata
Decided on: Feb-13-1880
Reported in: (1880)ILR5Cal720
Richard Garth, C.J.1. The first point raised by Mr. Sandel on behalf of the appellants is, whether limitation does not apply to the whole of the plaintiffs' claim.2. It appears that the suit was brought on the 14th of December 1877 by Imrit Tewari, Kolessur Tewari, Harihur Tewari, and Jhinga Tewari, who had paid the whole of the damages decreed against them and other defendants in a former suit for cutting down some trees growing upon land, of which they were the tenants.3. After the plaint had been filed, and before the summons to the defendants had been issued, the plaintiffs assigned their interest in the present claim to certain other persons, named Syud Mukrum Hossain and Suput Singh; and it seems, that the summons to the defendants issued in the names of those persons (the assignees), and not of the original plaintiffs in the suit. It also appears that, at the time when the assignees' names were first introduced into the proceedings, the claim would have been barred by limitation...
Tag this Judgment!Gudadhur Paul Chowdhry and ors. Vs. Bhyrub Chunder Bhuttacharji and an ...
Court: Kolkata
Decided on: Feb-12-1880
Reported in: (1880)ILR5Cal918
Jackson, J.1. The grant was of great antiquity, and could not be regularly proved. It was therefore necessary to consider very carefully whether it came from proper custody, whether it had on any occasion seen the light before, and whether the previous circumstances were consistent with the fact of their having such grant; and upon the estimate of the evidence in this point of view, the Judge's judgment appears to us to be open to objection. The District Judge does not admit the reasons given by the Munsif for believing in the genuineness of this grant, and it is impossible to conceive that he could have approved of them. They appear, indeed, to be puerile. The defendants felt the necessity of showing that this document had seen the light before, and it was therefore stated that it had been produced on some former occasion in the Office of the Collector of Tipperah. On that the Judge says: It is, however, quite clear that it was filed in the Court of the Collector of Tipperah, and the ...
Tag this Judgment!Brojomohun Doss and ors. Vs. Hurrololl
Court: Kolkata
Decided on: Feb-10-1880
Reported in: (1880)ILR5Cal700
Richard Garth, C.J.1. In this case we agree with the opinion of the lower Court, that even if the plaintiffs have proved themselves to be the heirs of the testator, they are excluded by his will from taking any interest in his estate. The will devotes his estate to religious and charitable trusts exclusively.2. But the plaintiffs have argued before us, that even if they have no personal interest, still they are entitled as heirs to see that the religious and charitable trusts are properly carried out, inasmuch as there is no one else to put the Court in motion, and thus obtain the due administration of the trusts.3. It has never yet, we believe, been decided that the representatives of a testator are entitled to sue for the enforcement of trusts created by him for religious or charitable purposes, but in which they are not personally interested. In England the due administration of charitable and religious trusts is enforced by the information of the Attorney-General at the relation of...
Tag this Judgment!Roshun Doosadh and Two ors. Vs. the Empress
Court: Kolkata
Decided on: Feb-10-1880
Reported in: (1880)ILR5Cal768
Prinsep, J.1. We think that there roust be a new Trial in this case.2. The three persons were charged, under Section 411 of the Indian Penal Code, with having dishonestly been in possession of certain articles claimed by the complainant, as property stolen from his house. A dohur and pugree were found with the prisoner Roshun. The complainant and a friend identified these as the property of the former; Roshun, on the other hand, stated that they were his, but that statement was unsupported by any evidence. The Sessions Judge was quite correct in putting it to the jury, 'to say whether there is any reason to. believe that they (the complainant and his friend) have made any mistake,' but he was clearly wrong in adding, 'the fact that he (Roshun) has been twice imprisoned for theft is also not without its weight, and should be taken by you into consideration when deciding as to the credibility of the evidence of identification.' Section 54 of the Evidence Act, though it declares that 'the...
Tag this Judgment!Mohun Dass Vs. Lutchman Dass
Court: Kolkata
Decided on: Feb-09-1880
Reported in: (1881)ILR6Cal11
Jackson, J.1. The petitioner, who is the appellant before us, moved the Judge of the District of Moorshedabad to revoke the probate of a will under which the respondent had been designated as mohunt at the head of a certain religious institution. It was alleged that this mohunt had, since he took charge of the office, taken to a certain course of conduct whereby he has tarnished his name, and in consequence whereof he has been excluded from the community of the mohunts. The Judge considered that this was not a case in which the provisions of Section 234 of the Indian Succession Act authorized him to revoke or annul the grant of probate; and the petitioner, being dissatisfied with this decision, has appealed to this Court, and before us it is contended that the section referred to does apply to such a case, and that the proof of that is to be found in illustration (h) attached to that section. Illustration (h) refers to the case of a 'person to whom probate was, or letters of administra...
Tag this Judgment!Kristo Coomar Nag Vs. Mahabat Khan
Court: Kolkata
Decided on: Feb-05-1880
Reported in: (1880)ILR5Cal595
Morris, J.1. The facts are that an objection on the ground of limitation was taken by the judgment-debtor, which was dismissed by the first Court on the 17th January 1876. The judgment-debtor then appealed, and his appeal, which was opposed by the judgment-creditor, was dismissed on the 2nd October 1877. The judgment-creditor allowed the proceedings in execution to drop, and did not apply to revive them till the 18th March 1879. An objection was taken by the judgment-debtor that more than three years had elapsed since the next preceding application, and that, consequently, execution was barred. This objection was allowed by the first Court, and affirmed on appeal by the lower Appellate Court. A motion has since been made to this Court that this order is opposed to the provisions of Article 179, schedule ii Act. XV of 1877, which is the law which governs this case. This motion raises the question, whether the opposition raised by the judgment-creditor to the appeal of the judgment-debto...
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