Kolkata Court September 1880 Judgments
Juggut Chunder Mozumdar Vs. Kasi Chunder Mozumdar
Court: Kolkata
Decided on: Sep-29-1880
Reported in: (1881)ILR6Cal440
Richard Garth, C.J.1. The first ground upon which it is contended that the order is bad is, that the Judge of the Pubna Court had no jurisdiction to make it.2. Upon this ground alone it appears to me that the order is clearly illegal. The offence of which Kasi is said to have been guilty is that of giving false evidence in a judicial proceeding under Section 193 of the Penal Code, and he is said to have given this false evidence in the 4th paragraph of the petition which he filed in the District Court of Rajshahye in 1878. If this was an offence at all, it seems clear to me that the Court before which it was committed was the District Court of Rajshahye, and that, consequently, the only Court which could give sanction to any criminal proceeding under Section 468 of the Criminal Procedure Code was either the Judge of the District Court of Rajshahye, or some Court to which the Rajshahye Court was subordinate. The offence was certainly not committed before or against the District Court of...
Tag this Judgment!The Empress Vs. Sunker Gope
Court: Kolkata
Decided on: Sep-17-1880
Reported in: (1881)ILR6Cal307
Richard Garth, C.J.1. We are of opinion that the conviction of Shunker Gope, for an offence under Section 411 of the Penal Code, is legal, and that we should not interfere. Shunker Gope confessed to having stolen cattle in the kingdom of Nepal, and he was found in possession of them in British territory. Section 66 of the Criminal Procedure Code, illustration (b), lays down that' a charge of receiving or retaining stolen goods may be inquired into and tried, either in the district in which the goods were stolen or in any district in which any of them were at any time dishonestly received or retained.' Now the theft having occurred beyond British territory, the prisoner could not be tried for that offence in our Courts, see Reg. v. Apivigadu (I. L. R., 1 Mad., 171), but the present case seems to be very similar to one reported in the Indian Law Reports, Reg v. Lakkya Govind (I. L. R., 1 Bom., 50); and therefore we think that the conviction may be sustained.2. It is unnecessary for us to...
Tag this Judgment!Jugtanund Misser Vs. Nerghan Singh and anr.
Court: Kolkata
Decided on: Sep-15-1880
Reported in: (1881)ILR6Cal433
Richard Garth, C.J.1. (who, after setting out the facts as above, continued):-I think that the District Judge was wrong in admitting the parol evidence; he appears to have admitted it under proviso 3 to Section 92 of the Evidence Act; but that proviso in my opinion does not apply to a case of this kind.2. I think that the District Judge has taken a wrong view of proviso 3. That proviso, as it seems to me, is intended to introduce into the law of evidence the rule which is well established and understood in England, and treated of in Section 1038 of Mr. Taylor's book on Evidence. That rule is, that when, at the time of a written contract being entered into, it is orally agreed between the parties that the written agreement shall not be of any force or validity until some condition precedent has been performed, parol evidence of such oral agreement is admissible to show that the condition has not been performed, and consequently that the written contract has not become binding.3. This wi...
Tag this Judgment!Gobind Chunder Nundi Vs. Mozhuruddin
Court: Kolkata
Decided on: Sep-15-1880
Reported in: (1881)ILR6Cal436
Tottenham, J.1. The point pressed upon us by the learned Counsel for the appellant is, that there is nothing in the law of this country warranting forfeiture of his holding as the penalty of denial by a ryot of his landlord's title.2. The lower Appellate Court has decreed the defendant's (appellant's) eviction for denying the plaintiff's title, though well aware of it.3. There are numerous reported cases in which this Court has affirmed similar decrees passed under the same circumstances, and there being no contrary ruling, we think that we are bound to follow these decisions, notwithstanding that the learned Counsel has contended that the point was never really raised and decided in these cases, but that it was assumed that denial of the landlord's title rendered the tenant liable to be evicted. We are not at present prepared to take the opposite view, and to refer the case to a Full Bench. We may observe that the doctrine of forfeiture is not entirely unknown to the law of landlord a...
Tag this Judgment!Niamut Khan and ors. Vs. Phadu Buldia
Court: Kolkata
Decided on: Sep-14-1880
Reported in: (1881)ILR6Cal319
Richard Garth, C.J.1. Pontifex and Mitter, JJ.,--We think we are bound to follow, in its integrity, the rule which has been laid down by their Lordships of the Privy Council in the cases referred to, and adopted by the Legislature of this country in the 13th section of the new Code,--namely, that when a material question has been substantially tried and decided in a former suit, and in a competent Court, it cannot be tried again in any other suit between the same parties.2. The question which is raised in this suit, namely--whether the tenure was liable to enhancement,--was undoubtedly tried and determined by the Munsif in the former suit; and although no declaration was made of the plaintiff's right in that respect, and although the decision was not embodied in the decree, so as to give the defendant a right of appealing against it, still it was a decision within the meaning of the rule laid down by the Privy Council, and we think that the defendant is bound by it.3. It was argued at ...
Tag this Judgment!Mohi Lall Roy Vs. Mutty Ram Sahoo
Court: Kolkata
Decided on: Sep-13-1880
Reported in: (1881)ILR6Cal291
Field, J.1. In this case the plaintiff sued to recover possession of two plots of land. As to the second plot I see no reason to interfere with the decree of the Munsif, confirmed by the Subordinate Judge, which declares the plaintiff entitled to half this plot, and directs that the earth thrown upon such half, in excavating defendant's tank, be removed. Clearly there is no ground of interference on second appeal.2. The main contention is in respect of plot No. 1. It appears that, in respect of this plot, the defendant made an application to the Magistrate; and the Magistrate, dealing with this application as a case under Section 521 of the Code of Criminal Procedure, made an order directing the plaintiff, who had closed a certain path over this piece of land, to remove the fence put up for the purpose of barring the right of way, and to leave the path open.3. The plaintiff now substantially contends that this order of the Magistrate was made without jurisdiction, inasmuch as the path ...
Tag this Judgment!Bykunt Nath Roy Vs. Mokundo Lall Roy
Court: Kolkata
Decided on: Sep-10-1880
Reported in: (1881)ILR6Cal289
Prinsep, J.1. The only point raised by the defendant, special appellant before us, is, that, by reason of his being an adopted, and not a naturally begotten, son of Brojo Nath Roy, the plaintiff is no heir to Gour Kishore under Hindu law, an adopted son not being recognized as a sakulya or samanodaka, nor is entitled to inherit if he be not a sapinda or related within three degrees from the common ancestor.2. The general principle is very clearly laid down in the Dattaka Mimansal 6, para 53:Without difference, relation to the father and other sires of the adopter obtains in the same manner as relation to the general family, the family deity, and family rules of that person; the term 'son' is used without restriction in these and other passages.3. Unless, therefore, we found some authority clearly restricting the rights of inheritance on the part of an adopted son, and declaring that they are something less than those of the naturally begotton son, we certainly should make no distinctio...
Tag this Judgment!Dorab Ally Khan Vs. Abdool Azeez
Court: Kolkata
Decided on: Sep-10-1880
Reported in: (1881)ILR6Cal356
Richard Garth, C.J.1. The facts, which have been disclosed at the trial before Mr. Justice WILSON, present this case to us in a very different aspect from that which it assumed in the plaint.2. The sale by the Sheriff to Deanut-ud-Dowlah took place on the 9th of October 1866. The purchase-money, Rs. 26,000, was then paid to the Sheriff, and the purchasers obtained possession of the property.3. It then appears that the Judicial Commissioner of Lucknow expressed an opinion, that the sale was invalid ; and Deanut-ud-Dowlah, having taken the opinion of the then Advocate-General, gave notice to the Sheriff, through Messrs. Goodall and Leslie, his attorneys, that the sale was irregular, and required him not to part with the purchase-money.4. It is clear, therefore, at this time Deanut-ud-Dowlah and his advisers had ample notice of the alleged invalidity of the sale ; and that he might have then taken steps, if he had thought proper, to set the sale aside, and obtain a return of his purchase-...
Tag this Judgment!Umanath Mookhopadhya Vs. Nilmoney Singh
Court: Kolkata
Decided on: Sep-10-1880
Reported in: (1881)ILR6Cal429
Morris, J.1. (who, after stating the facts, proceeded as follows):-The first question that arises is, whether Nilmoney Singh, as creditor of Taranath, has any locus standi? Whether he has such an interest in the estate of the deceased Bamon Dass as gives him a right to apply for revocation of the probate granted of his will? In support of the proposition that he cannot apply for the revocation of probate, several authorities have been cited. In In the matter of Mee Tsee (15 W. R., 351), Mr. Justice Norman, delivering the judgment of the Court, says: 'We have no doubt of the soundness of the proposition that a person who is not next-of-kin, and who has no interest in the estate of a testator, has no right to oppose the grant of the probate or dispute the validity of the will. In England it has been held, that even a creditor cannot controvert the validity of a will, because it is a matter of indifference whether he should receive his debt from the executor or from an administrator.' The...
Tag this Judgment!Monohur Das Vs. Radha Pershad Misser
Court: Kolkata
Decided on: Sep-05-1880
Reported in: (1881)ILR6Cal317
Richard Garth, C.J.1. We think that, having regard to the rule laid down by the Full Bench in Emam Momtazooddeen Mahomed v. Rajcoomar Das (14 B. L. R., 408; s.c., 23 W. R., 187), and to subsequent decisions of this Court, amongst which we may specially notice the cases of Byjnath Singh v. Goberdhun Lall Mohasohree (24 W. R., 210) and Chiet Narain Singh v. Gunga Pershad (25 W. R., 216), we cannot do otherwise than allow the appeal, and dismiss the plaintiff's suit.2. It is clear that the covenant entered into by the mortgagor in the mortgage-bond of 1867 did not render invalid the zurpeshgi lease which was subsequently granted. We have held in other cases that such a covenant only creates a personal liability as between the mortgagor and the mortgagee.3. Then it is also clear, that the subsequent sale under the decree of 1873 did not put an end to the zurpeshgi lease, (sic) affect the interests of the zurpeshgidar.4. The plaintiff has, therefore, no right to sue for khas possession of t...
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