Kolkata Court July 1881 Judgments
In Re: Petition of Khamir
Court: Kolkata
Decided on: Jul-29-1881
Reported in: (1881)ILR7Cal662
Morris, J.1. In this appeal it is contended, first, that the order under which appellant was committed to take his trial in the Court of Sessions, is on two distinct grounds illegal and ultra vires; and next, that, on the merits, the prisoner ought not to have been convicted.2. The case had been instituted against the prisoner under Section 498 of the Penal Code. The Deputy Magistrate, after hearing the evidence for the prosecution, discharged the accused under Sections 215, Criminal Procedure Code.3. That complainant then moved the Sessions Judge to take action under Section 296, Criminal Procedure Code.4. That officer was of opinion that the facts alleged against the accused really amounted to abetment of rape or of adultery; and those offences being triable only in the Sessions Court, he directed the Deputy Magistrate to commit the accused accordingly.5. He remarked that even if the case properly came under Section 498, the Deputy Magistrate had no power to try it, inasmuch as he wa...
Tag this Judgment!Kally Das Roy Vs. Lodai Mollah
Court: Kolkata
Decided on: Jul-29-1881
Reported in: (1882)ILR8Cal238
Field, J.1. The plaintiff in these cases sued a number of ryots for rent. Their defence was substantially this, that no relation of landlord and tenant existed between them and the plaintiff. They alleged that the lands held by them are not situate within Taluq No. 3039, as alleged by the plaintiff, but form a portion of a nim-howla belonging to one Tarini Churn Biswas and situate within Taluq No. 3051. They further said that Tarini Churn Biswas is their landlord, and that they pay their rents to him.2. The Munsif, in a careful judgment, dealt with the question whether the relation of landlord and tenant exists between the parties, and having carefully examined the evidence, came to the conclusion that this relation has not been established; and he, therefore, dismissed the plaintiff's suit.3. The cases then came on appeal before Baboo Nufur Chunder Bhutto the Officiating Second Subordinate Judge of Backergunge, and this gentleman, in a long judgment, which contains a large amount of i...
Tag this Judgment!Bonomali Mozumdar Vs. Woomesh Chunder Bundopadhya
Court: Kolkata
Decided on: Jul-28-1881
Reported in: (1881)ILR7Cal730
Field, J.1. The first point, which it will be convenient to dispose of in this appeal, is the allegation that the appellant was not afforded fair opportunity of producing his witnesses. Now, the facts as to this objection are these. He applied for and obtained an order for the issue of a proclamation on these witnesses on the 8th January. He did not put in the requisite court-fees for the issue of these proclamations until the 25th January,---that is, seventeen days afterwards, although he was aware on the 8th January that the 5th February had been fixed for the hearing. Now, it appears to us, having regard to the ordinary despatch with which business is done in the mofussil, that he might have been well aware when he paid in the court-fees on the 25th January, after seventeen days, that it was improbable that these proclamations could have been served in such time as to allow of the witnesses being in attendance on the 5th February. As a matter of fact, the proclamations did not issue...
Tag this Judgment!Kristo Ram Roy Vs. Janokee Nath Roy and ors.
Court: Kolkata
Decided on: Jul-27-1881
Reported in: (1881)ILR7Cal748
Field, J.1. The question raised in these appeals is, whether a judgment-creditor, who has obtained a decree for arrears of rent due in respect of an under-tenure transferable by its own title-deeds or by the custom of the country, is bound to bring that under-tenure to sale in execution before he can proceed against the other immoveable property belonging to his judgment-debtor. There can be no doubt that if this question had to be answered under the old law, it must have been answered in the affirmative. Such is the effect of the decision in the case of Desaratulla v. Nawab Nazim Nazar Ali Khan (I. B. L. E., A. C. 217). It is contended that this decision is still applicable. Section 61 of Beng. Act VIII of 1869 enacts as follows in its last paragraph:2. 'If, after sale of any such under-tenure in execution of such decree, any portion of the amount decreed remains due, process may be applied for and issue against any other property, moveable or immoveable, belonging to the debtor.' Now...
Tag this Judgment!In Re: T. H. Marshall an Insolvent
Court: Kolkata
Decided on: Jul-26-1881
Reported in: (1881)ILR7Cal421
Broughton, J.1. The insolvent in this case had assigned his goods to Mr. Boileau prior to his insolvency, and the question is, whether they were in his own possession, order, or disposition when he became insolvent, within the meaning of the 23rd section of the Insolvent Act, 11 and 12 Vict., Clause 21. The petition of the insolvent was filed on the 31st May 1881. There is no question in this case as to the validity of the assignment, which was dated the 19th March, in favour of Mr. Boileau. It is shown to have been made more than two months before the filing of the petition, and for good consideration ; and in is shown, that the money he advanced-Rs. 9,500- was applied partly in buying out a partner, who was paid Rs. 5,000, and the balance in paying the debts of the more pressing creditors of the insolvent. It was not an assignment in contemplation of insolvency, for the insolvent swears he did not know ha was in difficulties. Mr. Boileau had no idea of it, or, as he says, he would no...
Tag this Judgment!Brojendro Coomar Roy Vs. Krishna Coomar Ghose and ors.
Court: Kolkata
Decided on: Jul-25-1881
Reported in: (1881)ILR7Cal684
Prinsep, J.1. We think that the judgment of the Sobordinate Judge in this ease is clearly erroneous. The plaintiff is the purchaser of an estate at a sale for arrears of Government revenues and he has brought this present suit, under Section 37 of the Bengal Bent Act (Beng. Act VIII of 1869), in order to make a measurement of the estate so purchased.2. A preliminary objection was taken which we may well dispose of in the first instance. It is contended that no appeal lies in a case of this sort. We think however, that the order, made by the District Judge under the provisions of Section 37 of the Bent Act is a decree within the meaning of the definition contained in the existing Code of Civil Procedure. 'Decree' means 'the formal expression of an adjudication upon any right claimed, or defence set up, in a Civil Court, when such adjudication, so far as regards the Court expressing it, decides the suit.' This is the portion of the definition essential to the present case. Now the right ...
Tag this Judgment!Dinonath Ghose Vs. Auluck Moni Dabee and ors.
Court: Kolkata
Decided on: Jul-21-1881
Reported in: (1881)ILR7Cal753
Field, J.1. In this case the plaintiff purchased certain immoveable property on the 26th Aughran 1280 (10th December 1873), and his conveyance was registered. He alleged in his plaint that he got possession of the property after the execution of his 'conveyance. The Munsif was of opinion that he got possession of part only of the property; but the Subordinate Judge does not support the Munsif's finding, even to this extent. The defendant claims the same property under two unregistered kobalas, dated respectively the 5th and 15th Aughran 1279 (19th and 29th November 1872), and she alleges that she obtained possession of the property upon the execution of these conveyances, and has been in possession ever since. The amount of consideration for each of these instruments is less than Rs. 100. Registration was therefore optional; and the instruments themselves, though not registered, are admissible in evidence to prove the defendant's title.2. The Judge of the lower Appellate Court has foun...
Tag this Judgment!Chunder Coomar Mookerji and ors. Vs. Koylash Chunder Sett and ors.
Court: Kolkata
Decided on: Jul-20-1881
Reported in: (1881)ILR7Cal665
Wilson, J.1. The plaintiffs in this suit are the owners and occupiers of a house and premises Nos. 119 and 120, Bulloram Dey's Street. The defendants, the Setts, are owners of No. 124; the defendants Tara Soondery, of No. 125; the next group of defendants, of No. 126, which is a temple, of which they are trustees; and the defendant Shama Churn Dey, of No. 127.2. The plaintiffs' premises have no frontage on the street, but are reached by a lane running first north from the street, and then west along the south of the plaintiffs' premises. The defendants' houses all have a frontage to the street, but also abut on the lane.3. The plaintiffs' complaints are three:4. 1st.--That the defendants use the lane for the passage of mehters and the cleaning of their privies.5. 2nd.--That they, or some of them, have used the western portion for drainage of their houses.6. 3rd.--That they combined together to pull down a wall erected by the plaintiffs to prevent their access to the lane. That the defe...
Tag this Judgment!Ram Churn Lall Mahata and anr. Vs. Birajan Kooer
Court: Kolkata
Decided on: Jul-20-1881
Reported in: (1881)ILR7Cal719
Mitter, J.1. The respondents in this case are plaintiffs in a suit for recovery of the property of two brothers, their nephews, now dead, which is in the possession of the appellant, the widow of one of them.2. The respondents prayed for an injunction under Section 492 of the Code to restrain the defendant from wasting or alienating the property which consists of moveables and immoveables, including a money-lending business of some extent. The Subordinate Judge, however, on the evidence submitted to him, thought that there were no grounds for issuing such an injunction as was asked for; but then he proceeded to find that it was necessary for the realization, preservation, and better management of the property in dispute, that a receiver should be appointed, and accordingly submitted the name of a suitable person to the District Judge, who sanctioned the appointment. The appellant objected to the appointment of any receiver, and the Judge considered that he had no authority to enter int...
Tag this Judgment!Chunder Mun Misser and ors. Vs. Sumrun Thakoor
Court: Kolkata
Decided on: Jul-19-1881
Reported in: (1882)ILR8Cal17
Mitter, J.1. The only question which we reserved for consideration is, whether, under the Mitakshara law, a share is allotted to a wife in a partition of an ancestral property between a father and a son.2. The question we find is no longer an open one, having been decided on several occasions: see Mahabeer Persad v. Ramyad Singh 12 B.L.R. 90; Laljeet Singh v. Raj Coomar Singh 12 B.L.R. 373; Jodoonath Dey Sircar v. Brojonath Dey Sircar 12 B.L.R. 385 and Pursid Narain Singh v. Honooman Sahoy I.L.R. 5 Cal. 845.3. Upon an examination of the Mitakshara itself, we have come to the conclusion that though there is no express text upon the point yet the decisions are in accordance with the principle upon which express texts upon kindred subjects are based. In some of the cases cited above, v. 8 Section 1 chap. I and vv. 1 and 2 Section 7 chap. I are relied upon in support of this proposition of law. ut the first text refers to paternal or father's self-acquired property, and the other texts app...
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