Kolkata Court December 1881 Judgments
Umbica Prosad Tewary and ors. Vs. Ram Sahay Lall and ors.
Court: Kolkata
Decided on: Dec-22-1881
Reported in: (1882)ILR8Cal898
Mitter, J.1. This appeal arises out of a suit instituted by Umbica Prosad and Sungthadin Tewary, sons of Thakoordeen Tewary, and Adiadin Tewary, grandson of the said Thakoordeen Tewary by a deceased son, to recover possession of a three annas share of Mouza Chuck Nyamut, out of the four annas share of the mouza, which constituted the joint family-property of these plaintiff's and Thakoordeen Tewary. The sixteen annas of Mouza Chuck Nyamut was registered in the Collector's Register as Estate No. 66. It is alleged in the plaint that a decree was obtained against Thakoordeen for money by Mussamut Tetra and others, and in execution of that decree only Thakoordeen's share in the family-property was sold on the 16th April 1877, and it was purchased by the defendants, who are the respondents before us. Then it is further alleged that, although only the interest of Thakoordeen was sold, the purchasers, the defendants--respondents in this case--under that purchase, succeeded in obtaining delive...
Tag this Judgment!Pursut Koer and anr. Vs. Palut Roy and ors.
Court: Kolkata
Decided on: Dec-22-1881
Reported in: (1882)ILR8Cal442
Mitter, J.1. The only question of fact that we have to decide in this appeal is, whether the two brothers, Luchmi Narain Singh and Ramjoy Narain Singh, at the time of the death of the former, which took place in the year 1842, were members of a joint Hindu family. (After stating the facts, and finding on the evidence that Luchmi Narain and Ramjoy Narain were not members of a joint Hindu family at the time of the death of Luchmi Narain, his Lordship continued):2. This brings us to the question, whether, notwithstanding our finding that the brothers Luchmi Narain and Ramjoy Narain were separate, the plaintiffs' suit must fail on the ground of limitation. The finding of the lower Court upon this point is, that, on the death of Luchmi Narain, the whole of the family property came into the possession of Ramjoy Narain to the exclusion of the widow of the former, viz., Golab Koer. We are not prepared upon the evidence to dissent from this finding, although it seems to us that the possession o...
Tag this Judgment!Chunder Kant Sandel Vs. Rajmonee Dabee
Court: Kolkata
Decided on: Dec-21-1881
Reported in: (1882)ILR8Cal440
Mitter, J.1. In this appeal the appellant having died, and no application having been made by her legal representative to be substituted in her place, the appeal will abate.2. A question has been raised as to the power of this Court to award any costs to the respondent, who, there cannot be any doubt, is justly entitled to them. I am of opinion that we have the power to award to the respondent the costs of this appeal, to be recovered from the estate of the deceased appellant.3. Section 582 of the Code of Civil Procedure is to the following effect: The Appellate Court shall have, in appeals under this chapter, the same powers, and shall perform, as nearly as may be, the same duties, as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted under Chap. V; and in Sections 363 and 365, the word 'plaintiff' shall be held to include an 'appellant.'4. Although Section 366 is not expressly mentioned here, the power conferred by it on the Court...
Tag this Judgment!Buddree Doss and anr. Vs. Hoare, Miller and Co.
Court: Kolkata
Decided on: Dec-15-1881
Reported in: (1882)ILR8Cal170
Wilson, J.1. I think there is no doubt whatever that the order ought to be made. The application is made under Sections 28 and 32 of Act X of 1877.2. As a general rule, if the plaintiff applies in proper time, he is entitled to have a person added as a defendant, if he had been entitled to join him originally. But, under Section 28, 'all persons may be joined as defendants against whom the light to any relief is alleged to exist, whether jointly, severally, or in the alternative, in respect of the same matter.' Here the claim is against Hoare, Miller, & Co. If the facts turn out that Hoare, Miller, & Co. were the principals for whom Aushotosh Dutt, whom it is sought to add, was acting, they can claim to have their remedy in the alternative.3. I should have said so without authority, but there is express authority in the case of Child v. Stenning L.R. 5 Ch. D. 695.4. I think, therefore, that the order should be made as asked for. Costs should be costs in the cause....
Tag this Judgment!The Empress Vs. Kola Lalang and anr.
Court: Kolkata
Decided on: Dec-14-1881
Reported in: (1882)ILR8Cal214
Field, J.1. The question in this case is concerned with the construction of Sections 15 and 16 of the Reng. Excise Act, VII of 1878. Two persons were charged under Section 61 of this Act with 'being in possession of a certain excisable article, to wit six quart bottles of native spirits, being a quantity in excess of the quantity specified in Section 15.' Now Section 15 is as follows:2. Unless the Board shall otherwise specially direct, the sale of any excisable article in a larger quantity than is specified below shall be deemed to be a sale by wholesale, and the sale of any other quantity shall be deemed a retail sale: Spirituous or fermented liquors, two imperial gallons, or twelve quart bottles.' The Chief Commissioner of Assam, exercising the powers of the Board of Revenue, made an order under the provisions of Section 15, declaring that six quart bottles shall be the maximum amount; and the question is, whether any lesser quantity so declared to be the maximum quantity by the Boa...
Tag this Judgment!In Re: SamiruddIn and Vs. Samiruddin
Court: Kolkata
Decided on: Dec-14-1881
Reported in: (1882)ILR8Cal211
Field, J.1. In this case one Samiruddin has been convicted of murder by the Sessions Judge of Furreedpore sitting with Assessors, and has been sentenced to death. This sentence has been referred for confirmation; and the prisoner has appealed at the same time.2. In referring the case the Sessions Judge forwards a copy of a letter received by him from the Civil Surgeon, and expressing an opinion as to the nature of the wound inflicted upon the person of causing whose death the prisoner has been convicted. We cannot receive, or in any way act upon, this extra-judicial matter. The only opinion of the Civil Surgeon which can be considered in judicially dealing with the case, is an opinion expressed by him when examined as a witness under the usual tests to which witnesses are subjected.3. The Assessors were of opinion that the prisoner should be convicted of murder. But the value of this opinion is very much diminished when we find that some important matter which should not have been admi...
Tag this Judgment!The Empress Vs. Soddanund Mahanty and ors.
Court: Kolkata
Decided on: Dec-14-1881
Reported in: (1882)ILR8Cal259
Field, J.1. In this case six persons have been convicted under Section 61 of the Indian Stamp Act, I of 1879, under the following circumstances: These six persons were members of a punchayet, who decided a matter relating to a small piece of land, acting as arbitrators or umpires between two of their fellow-villagers. This decision, or arbitration, was reduced into writing, but the writing was not stamped. One of the persons at whose instance it was made having subsequently resorted to the Civil Court, this written award was filed in the suit. This paper may possibly have been an award within the meaning of Article 10, Schedule i of the Stamp Act, and as it had not been stamped, the Munsif, before whom it was filed, proceeded to impound it; and subsequently, in accordance with the provisions of Section 35 of the Stamp Act, he forwarded the paper to the Collector. The Collector upon this made an order that the writer of the document be sent to the Deputy Magistrate for trial under the C...
Tag this Judgment!Jadoomony Dabee and ors. Vs. Hafez Mahomed Ali Khan
Court: Kolkata
Decided on: Dec-09-1881
Reported in: (1882)ILR8Cal295
Morris, J.1. The plaintiffs, in their plaint, stated Rs. 1,200 as approximately the amount of the mesne profits to which they were entitled, and paid court-fees on that amount. The decree for possession and mesne profits which they obtained left the determination of the amount of the mesne profits to be settled in execution without referring to the amount specified in the plaint or in any way limiting plaintiff's claim.2. The Subordinate Judge in execution has refused to allow plaintiff's anything beyond the amount stated in their plaint.3. Baboo Sreenath Doss for the respondent, by an ingenious calculation, endeavours to show that the rate per annum was definitely settled by the plaintiffs, and that the word 'approximately' (annumamik) used in the plaint, in connection with the estimated amount of claim, had reference only to the duration of the suit and the interval which might elapse before possession was obtained. We are not inclined to adopt this view, which is purely conjectural....
Tag this Judgment!Boshoon Lall Sookul Vs. Chunder Doss and ors.
Court: Kolkata
Decided on: Dec-09-1881
Reported in: (1882)ILR8Cal251
Morris, J.1. What has occurred in this case is, that the District Judge, after admitting the appeal, which was long out of time, sent the appeal for decision to the Subordinate Judge. On the hearing of the appeal, after hearing both sides in the matter, the Subordinate Judge threw out the appeal on the ground that it was inadmissible. It is contended before us in special appeal, on the authority of the case of Jhotee Sahoo v. Omesh Chunder Sircar I.L.R. 5 Calc. 1 that the Subordinate Judge could not override the order of the District Judge admitting the appeal, and that he had only jurisdiction to hear the appeal on its merits. We have referred to the original order passed by the Judge. He does not in express words say that the appeal is admitted. He only says that it is 'admissible.' A doubt arises whether, by this order, the Judge did not intend that the appeal should be entertained subject to hearing objections to its admissibility when both sides were before the Court. However, ass...
Tag this Judgment!Gisborne and Co. Vs. Subal Bowri
Court: Kolkata
Decided on: Dec-08-1881
Reported in: (1882)ILR8Cal284
Richard Garth, C.J.1. I am of opinion that the instrument in question is not a bond within the meaning of the Stamp Act of 1869; and that it requires (so far as I can see) an eight-anna stamp only.2. The definition of a bond in Section 5 of the Act is precisely what we understand by a bond in England, and it is an obligation of a different character from a covenant to do a particular act, the breach of which must be compensated in damages.3. Whether a penal clause is attached to such a covenant or not, the remedy for the breach of it is in form and substance a suit for damages; and by Section 74 of the Indian Contract Act, the English rule with regard to liquidated damages is abolished, and the plaintiff in such a suit has no right under any circumstances to claim the penalty itself as such. He can only recover such compensation, not exceeding the amount of the penalty, as the Judge at the trial considers reasonable; but he is entitled to that compensation, whether he proves any actual...
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