Court : Kolkata
Reported in : (1882)ILR8Cal327
Prinsep, J.1. The plaintiff in this case sues for restitution of conjugal rights. The defendant, his wife, pleads that, under the conditions of the kabinnama, which was entered into between herself and her husband before marriage, she received the power to divorce her husband under certain contingencies, and that, on their occurrence, she has exercised that power, and duly divorced him under the Mahomedan law.2. In second appeal it has been argued by Munshi Serajul Islam, who appears for the husband, the plaintiff, that the delegation of such power by the husband to the wife is contrary to Mahomedan law. We are unable to find any authority for this contention. The Mahomedan law on the subject which has been laid before us provides for the delegation of the power of divorce by the husband to the wife on certain occasions by word of mouth, but it in no way, so far as it has been laid before us, limits the exercise of that power to those occasions. It would seem rather that, by providing ...
Tag this Judgment!Court : Kolkata
Reported in : (1882)ILR8Cal675
Prinsep, J.1. The plaintiff in this case on appeal contends, that, having obtained a decree for arrears of rent, he is entitled to an order for ejectment within the terms of Section 52 of the Rent Act. The lower Appellate Court has held, that the defendant, having a transferable jote, is protected against ejectment, and that the only remedy which the plaintiff has, is under Section 59 to sell that holding.2. It is argued on behalf of the appellant, by Baboo Sreenath Dass, that, although the zamindar might have the right of sale, he is entitled, if he so desires it, to eject the ryot, and he maintains that Section 59 does not apply to a jote such as it has been found the defendant holds, she being a cultivating ryot, but to intermediate tenures between the zamindar and the cultivating ryots.3. It is a matter of some surprise to us to find that, although the present Rent Law has been in force for more than twenty years, this point should not have been determined by the High Court. The on...
Tag this Judgment!Court : Kolkata
Reported in : (1882)ILR8Cal329
Prinsep, J.1. In both the lower Courts this suit has been dismissed, on the ground that it was barred by limitation, being a suit to set aside a sale for arrears of Government revenue, and not being brought within one year from the date on which the sale became final.2. We are of opinion that, having regard to the terms of the plaint and the case that was made before the lower Courts, the suit has been rightly dismissed. The learned pleader who appears for the appellants, has attempted to show that the plaintiffs were entitled to relief on the ground of fraud, and next he has attempted to maintain, on the authority of the judgment of the Pull Bench case of Baijnath Sahu v. Lala Sital Prasad 2 B.L.R. F.B. 1 that the suit does not come within Clause 12 of the 2nd schedule of the Limitation Act of 1877, because it being alleged that no arrear of revenue was due, the proceeding of the Collector was ultra vires, inasmuch as the sale was not properly held under Act XI of 1859, and that the s...
Tag this Judgment!Court : Kolkata
Reported in : (1882)ILR8Cal353
Field, J.1. The plaintiff in this case is the durpatnidar of the twelve-anna share of a certain estate. It appears that this estate was originally a one-anna or one-sixteenth of a larger estate; but that point is not material to the question with which we have now to deal, and for the purposes of this case, this one-anna share is taken as sixteen annas or a whole estate. This three-fourths share is registered on the Collectorate towzee under a separate number, 652, while the remaining one-fourth share is registered under number 654. Now it would [356] appear that this separate registration is merely for the purposes of the payment of the Government revenue; and it is admitted that the lands of the three-fourths or twelve-anna share and of the one-fourth or four-anna share have never been separated by metes and bounds. The plaintiff, as durpatnidar of the three-fourths share, measured the land in the occupation of the defendants, and served notice of enhancement under the provisions of ...
Tag this Judgment!Court : Kolkata
Reported in : (1882)ILR8Cal674
Prinsep, J.1. The only ground taken before us in this appeal is, that it being an appeal from an order under Section 562 of the Code of Civil Procedure remanding the case, the appellant in second appeal is entitled to ask us to consider the facts on which the lower Appellate Court passed the order of remand. It appears to us that this is altogether opposed to the principle of the Code of Civil Procedure, which, except in the cases provided for in chap. xlii, allows no second appeal. As we understand Section 588, Clause 28, we are competent merely to consider whether, on the findings of fact by the lower Appellate Court, that Court was right in remanding the case under Section 562. It would be a striking anomaly if it were possible, on an appeal such as this against an interlocutory order, for us to do more than we could do against the final order passed in the same case,--that is to say, to deal with findings of fact by the lower Appellate Court.2. We dismiss this appeal with costs....
Tag this Judgment!Court : Kolkata
Reported in : (1882)ILR8Cal272
Field, J.1. It appears to us that we cannot say that the District Judge was wrong in rejecting a petition of this kind, which was not supported by affidavit and which was not even verified by the defendants on whose behalf it was presented.2. Now, the first question that has been raised before us is, whether, under the circumstances, the defendants are entitled to appeal against the ex parte decree without having first resorted to the procedure laid down in Section 108. It appears to us that they are entitled to appeal. Section 101 is as follows: 'If the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit.' It appears to us that what the Legislature here intended was, that the defendant might be admitted to defend the suit merely upon a petition, and without any evidence bein...
Tag this Judgment!Court : Kolkata
Reported in : (1882)ILR8Cal664
R. Couch, J.1. This is an appeal from a decree of the High Court at Calcutta whereby the decree of the Subordinate Judge of Bhagalpore was reversed, and the respondent, the plaintiff in the suit, was awarded possession of Mouza Balwani with mesne profits thereof from the 22nd of August 1876, together with interest and costs.2. Mouza Balwani is situate within, and forms part of, Pargana Gedhour, the respondent's ancestral zamindari. On the 21st of February 1798, a patta was granted by the Government to Raja Gopal Singh and Raja Bharat Singh, therein described as zamindars of Pargana Gedhour, in which it is stated that the annual consolidated jama of the said Pargana, inclusive of the ganjats, markets, bazaars, all sayers and motahariffas, and also of rent-free lands held under sanads and without sanads, had, together with the fee of kanungos, been fixed and assessed permanently at sicca Rs. 15,001 from 1205 Fasli. In the register of Pargana Gedhour for the year 1205 Fasli, the gross pro...
Tag this Judgment!Court : Kolkata
Reported in : (1882)ILR8Cal291
Field, J.1. In this case the two points which appear to have been raised before the Munsif were: first, that no sale-notification had been published upon the property sold; and secondly, that because the jama had been originally put up to sale and default made in payment of the purchase-money, the Court was bound, having ordered the resale of the jama upon such default, to carry out such resale and to recover the difference between the amount bid upon the sale and the amount bid upon the resale from the defaulter before the decree-holder could proceed to sell the other property, viz., the hat. A third point is now taken before us, viz., that the publication of the sale-notification was insufficient, because such notification was not posted upon any place in the hat itself or adjacent thereto; and it is said that the place where the notification was published was a mile-and-half distant from the hat.2. As to the first ground taken before the Munsif we think that his decision is correct....
Tag this Judgment!Court : Kolkata
Reported in : (1882)ILR8Cal537
Mitter, J.1. This suit was brought for the partition of the estate left by one Mokoond Lall Misser, who died in Joist 1285 (May 1878), leaving him surviving two widows,--viz., Mussamut Senabutty Misrain and Belashbutty Misrain; Madho, a son; Josoda, a daughter by Senabutty; Damoodur Misser and Keshub Misser, sons; Bhuggobutty, daughter by Belashbutty. At the time when the suit was brought, Madho, Josoda, and Keshub were minors, and they are still minors. Bhuggobutty is not a party to the suit; she is admittedly not entitled to any share in the estate, she having been married during her father's lifetime. The plaintiffs are Senabutty and her minor son and daughter through herself as guardian. The plaintiff's prayer is, that the estate be divided into six equal shares, and three of these shares be allotted to them.2. The defendants, viz., Belashbutty and her sons, contend, (i) that the suit cannot proceed, because no sufficient ground has been stated which would justify a partition on be...
Tag this Judgment!Court : Kolkata
Reported in : (1882)ILR8Cal649
Mitter, J.1. This is a suit to recover possession of three annas out of four annas of Mouza Bhugwanpore Gidha, a revenue-paying estate, with wasilat. The plaintiff No. 1 is the son of Gondom Dobey, the defendant No. 2; and the plaintiffs Nos. 2 and 3 are mother and grandmother of the plaintiff No. 1. The plaintiff No. 4 is the purchaser of a share of the disputed property from the plaintiffs Nos. 1, 2 and 3.2. It appears that the aforesaid four annas formed one of the properties belonging jointly to the plaintiff No. 1 and Gondom Dobey. In execution of a decree against Gondom Dobey, the right, title, and interest of the debtor in Mouza Bhugwanpore were sold on the 8th September 1873, and purchased by the first defendant. The purchaser took possession of the whole four annas. The plaintiffs contend, that only the father's interest in the property was sold, and that as, on partition of the joint family property, that share would be one anna, the son, the mother, and the grandmother recei...
Tag this Judgment!