Kolkata Court March 1880 Judgments
Bemola Dossee Vs. Mohun Dossee and ors.
Court: Kolkata
Decided on: Mar-29-1880
Reported in: (1880)ILR5Cal792
Richard Garth, C.J.1. The question we have to decide in this appeal is, whether two adult ladies, who are the widows of two members of an undivided Hindu family governed by the law of the Dayabhaga, are bound by a mortgage of joint family property made by the surviving brother and managing member of the family, as to which they allege they were not consulted, and by the subsequent decree for sale in a suit by the mortgagee against the managing member as sole defendant.2. The plaintiff, who is one of the two ladies above-mentioned, the other of them being a defendant in the same interest with the plaintiff, by her plaint prays, that her rights in the mortgaged premises may be ascertained and declared; that it may be declared that her share is not affected by the mortgage; that the decree in the mortgage suit may be declared fraudulent and void as against her; that an account may be taken of the rents and profits, and her share ascertained and paid; and that the mortgaged property may be...
Tag this Judgment!Brojo Nath Bhuttacharjee Vs. Saroda Pershad Chattopadhya
Court: Kolkata
Decided on: Mar-19-1880
Reported in: (1880)ILR5Cal910
White, J.1. The defendant urges in appeal before us that Section 10 does not apply to the suit, but that the suit is barred by the operation of Article 120 of the Act.2. In England, the Statute of Limitation does not apply to a suit for an account brought by a cestui que trust against his trustee under an express trust, or by a principal against an agent expressly appointed: [Obee v. Bishop (1 D.F., and J., 142), Wedderburn v. Wedderburn (4 M. and C., 41), Brittlebank v. Goodwin (L.R., 5 Eq., 545), Burdick v. Garrick (L.R., 5 Ch. Ap., 233), Story v. Gape (2 Jur., N.S., 706), and Stone v. Stone (L.R., 5 Ch. Ap. 74)]; although in certain cases where the relation of trustee and cestui que trust is admitted to be no longer subsisting, and in a few other cases, a Court of Equity will refuse relief on the ground of lapse of time. The English doctrine does not appear to rest upon any exemption, express or implied, to be found in the English law of limitation, but to be the creation of the Equ...
Tag this Judgment!Abhoy Churn Pal and anr. Vs. Kally Pershad Chatterjee
Court: Kolkata
Decided on: Mar-19-1880
Reported in: (1880)ILR5Cal949
White, J.1. The circumstances out of which the present litigation has arisen are these:2. The appellants, who were the plaintiffs in the first Court, claim to be entitled to certain shares in two properties, forming part of 46 bighas 7 cottas and 2 chittaks of land situate within the Mouza Brahminaca.3. In 1862, the then patnidar of this mouza instituted resumption-proceedings in the Court of the Principal Sudder Ameen, against one Ram Tanu Pal and another, for the purpose of having it declared that the 46 bighas odd of land wore liable to assessment. Ram Tanu Pal and his co-defendant alleged that the land was held under a valid lakhiraj title, and further alleged that several other persons besides themselves were interested in the land in question. Seventeen other persons were, accordingly, added as defendants, and the case proceeded to trial. The Principal Sudder Ameen held, that the lakhiraj title was not proved; and on the 11th July 1863 declared the land liable to assessment. In m...
Tag this Judgment!Hirdhamun Jha and ors. Vs. Jinghoor Jha and ors.
Court: Kolkata
Decided on: Mar-18-1880
Reported in: (1880)ILR5Cal711
Pontifex, J.1. On the preliminary objection taken by the respondents to the hearing of this appeal, we think that no appeal lies to this Court. Although Section 629 does give an appeal, yet second appeals to this Court must either come within chap, xlii, the sections relating to appeals, or they must come under Sections 588, 591.2. We think that the order appealed against is not a decree within the meaning of chap, xlii, and it is certainly not an order under Sections 588 and 591. We observe that, in the Court of the Munsif, the parties were made to bear their own costs; we think that the plaintiffs, having been in default, should have been made to bear all the costs in the Court below, but as there is no second appeal, we have not the power to deal with the costs in the lower Court. But we give no costs in this Court....
Tag this Judgment!Govind Chunder Goswami Vs. Rungunmoney
Court: Kolkata
Decided on: Mar-18-1880
Reported in: (1881)ILR6Cal60
Wilson, J.1. In this ease a decree had been made and a reference ordered. Then in 1875 the case was struck out of the reference list under Rule 537 in Mr. Belchambers' book, and the application now made is to restore it. The application made is to reconstitute the suit and restore it. The Court of appeal in this case has decided the effect of this rule, and held, that the case being struck out is not to put an end to the suit, but that it is an existing suit, so that it can be reconstituted. It was contended that the Court had no power to grant the second part of the application, namely, to restore the case, and the objection is taken on the ground of limitation; Article 178 of the third division of the Schedule to the Act.2. Under that article the period of limitation was three years. The words of that article are perfectly general: 'Applications for which no period of limitation is 'provided elsewhere in this schedule, or by the Code of Civil Procedure, Section 230.'3. But as in all ...
Tag this Judgment!In Re: Nazirun
Court: Kolkata
Decided on: Mar-17-1880
Reported in: (1881)ILR6Cal19
Pontifex, J.1. We think that this is not a case in which a certificate ought to have been granted under Act XL of 1858. The applicant in the Court below is Mussamut Nazirun, and according to her own statement, at the time she made her application, her son, Tabaruck Hossein, was within a very few months of attaining majority; and at the time when the learned Judge's order was made in August 1879, he must have been within a few days of attaining his eighteenth year.2. In the Court below, Mussamut Muhamdee Begum was, either at her own instance, or by the action of the opposite party, made a party to the proceedings, and' Tabaruck Hossein himself also took objection to the certificate being granted. The objector, Muhamdee Begum, claimed to hold a mokurari from the alleged infant made in the preceding March, and she would certainly be prejudiced if the certificate is allowed to stand.3. We think that applications for certificates under Act XL of [21] 1858, the result of which would be to pr...
Tag this Judgment!Doorga Churn Doss Vs. Nittokally Dossee and ors.
Court: Kolkata
Decided on: Mar-15-1880
Reported in: (1880)ILR5Cal819
1. Mr. J.D. Bell for the Government contended, that Government should not be called upon to appear, but should only be called upon when a plaintiff seeks to institute a suit in order to see that the revenue is not defrauded. He also contended that there the Court has no power under the Code to allow a defendant to appear in forma pauperis.Wilson, J.2. The Code binds the Court so far as it goes, but if the Court had power before the Code was passed to allow a defendant to appear in forma pauperis, and that power is not expressly taken away by the Code, the power must remain. In Courts of common Law the defendant was not allowed to defend in forma pauperis, because the power was statutory; but in the Court of Chancery, the defendant was allowed so to defend because the power was not statutory.]3. March 15th.--On this day the Court made an order allowing the defendant to defend the suit in forma pauperis....
Tag this Judgment!Donzelle Vs. HosseIn Ally
Court: Kolkata
Decided on: Mar-15-1880
Reported in: (1880)ILR5Cal906
White, J.1. In this case the appellant (who is the defendant in the first Court) was sued under Section 52 of Beng. Act VIII of 1869 for the purpose of being ejected, and also for the recovery of certain arrears of rent.2. On the 23rd September 1878, the first Court passed a decree for his ejectment, and as directed by the section the decree specified the amount of the arrears of rent due from the defendant.3. The section further enacts that 'if the amount of the arrears, together with interest and costs of suit, be paid into Court within fifteen days from the date of the decree, execution shall be stayed.' The date of the decree was the 23rd September 1878, and the Court closed on the 26th of that month for the Poojah holidays, and did not open again till the 28th October 1878. The defendant on that day appeared in Court, and deposited the amount of the arrears, together with interest and costs. Notwithstanding the deposit having been made, the decree-holder applied to the Munsif to e...
Tag this Judgment!Moniram Kolita Vs. Keri Kolitani
Court: Kolkata
Decided on: Mar-13-1880
Reported in: (1880)ILR5Cal776
B. Peacock, J.1. This is an appeal from a decision of a Full Bench of the High Court of Judicature at Calcutta. It was admitted by virtue of a special order of Her Majesty in Council, whereby the appellant had leave to appeal in the form of a special case upon the following questions, viz:1st.--Whether, under the Hindu law as administered in the Bengal school, a widow, who has once inherited the estate of a deceased husband, is liable to forfeit that estate by reason of unchastity? and2nd.--Whether the forfeiture, if any, is barred by Act XXI of 1850?2. The appeal was admitted on account of the importance of the questions submitted for determination, and the great interest which the Hindu community take in it.3. The case came in the first instance upon special appeal before a Division Bench, consisting of Mr. Justice Bayley and Mr. Justice Dwarkanath Mitter, who were of opinion that the defendant had, by reason of unchastity, forfeited her right in her husband's property; but in conseq...
Tag this Judgment!Juggutjeebun Gooptoo Vs. Harocoomar Pal
Court: Kolkata
Decided on: Mar-08-1880
Reported in: (1880)ILR5Cal719
Morris, J.1. A preliminary objection is taken by the decree-holder, respondent, that no appeal lies in this case, because the order appealed against is not an order passed under Section 351, declaring the judgment-debtor, appellant, to be an insolvent. It is an order disallowing his application to be declared an insolvent. Looking at the strict terms of Section 351, it seems to us an order under that section can only be such an order as that section in its latter paragraph prescribes,--namely, an order declaring the applicant under Section 344 to be an insolvent, and also appointing a receiver of his property, or in lieu of appointing a receiver discharging the insolvent. This view is supported by the terms of Section 354, which says--'that every order' under Section 351 shall be published in the local Official Gazette, and shall operate 'to vest in the Receiver all the insolvent's property (except the particulars 'specified in the first proviso to Section 266), whether set forth in hi...
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