Kolkata Court March 1884 Judgments
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Nistarini Gupta Vs. Watson and Co.
Court: Kolkata
Decided on: Mar-31-1884
Reported in: (1884)ILR10Cal544
Field, J.1. We think that the lower Appellate Court has taken a mistaken view of this case. The suit was one for rent against an ijaradar. The ijaradar claimed a deduction in respect of certain land which was taken up for public purposes, that is to say, for a railway. The Munsiff held that the special stipulation in the kabuliat relied upon by the plaintiff did not cover a case o this kind. The Subordinate Judge took a different view and held that the clause in the kabuliat was wide enough to cover the case of land taken for public purposes.2. We have heard the clause in the kabuliat, and we think it was intended to meet the ordinary cases in which the area of land demised is diminished by diluvion, or other similar causes, and that the present case is not within the intention of the parties. Looking at the question from another point of view, it would be inequitable that the zamindar, who has received the whole amount of compensation, should be allowed further to obtain from the ijar...
Omrao Mirza Vs. M. Jones
Court: Kolkata
Decided on: Mar-26-1884
Reported in: (1884)ILR10Cal599
Prinsep, J.1. The matter raised in this appeal relates to the assessment of Court-fees on the plaint. The suit, as we understand it, is a suit for removal of the defendant from the management of certain trust funds on proof of his misconduct. The Subordinate Judge has held that the Court-fees payable should be assessed on the value of the trust property--that being, in his opinion, the subject-matter of the suit.2. It appears to us that the subject-matter in this suit is not the corpus of the trust property, but the right to retain the control over it. Under such circumstances, the suit would ordinarily fall within Schedule II, Article 17, Clause 6 of the Court-fees' Act. But in the present matter we have the fact that the plaintiff has valued the subject-matter of suit for the purposes of jurisdiction, as he states, at Rs. 7,000. We regard this value as not being merely for the purposes of jurisdiction, but also as affording a basis for the assessment of Court-fees. We accept the prin...
Queen-empress Vs. Batesar Mandal
Court: Kolkata
Decided on: Mar-24-1884
Reported in: (1884)ILR10Cal604
Tottenham and Norris, JJ.1. With regard to the first point we were, during the argument, inclined to think that Mr. Gasper's contention was well founded; but upon consideration and on examination of the authorities we are of opinion that it cannot be sustained. For the purpose of this case we assume that the proceedings before the Registrar were taken under Section 72 of the Act and not as they should have been under Section 73; and that what the Registrar heard was an appeal and not an application. Now, no doubt, the accused, when he appeared before the Registrar, might have pointed out this irregularity, and might have asked the Registrar to make no order or to dismiss the appeal; but he appeared, made no objection to the form of the proceedings, and must be held to have waived the irregularity. Under these circumstances we are of opinion that upon the authority of Reg. v. Barry 28 L.J. (M.C.) 86: 8 Cox C.C. 121; Queen v. Fletcher L.R. 1 C.C.R. 320; Turner v. Postmaster-General 5 B. ...
Jadunundan Singh Vs. Dulput Singh and ors.
Court: Kolkata
Decided on: Mar-21-1884
Reported in: (1884)ILR10Cal581
Mitter, J.1. We think that this appeal must fail. The lower Appellate Court has dismissed the plaintiff's suit on the ground that the plaintiff had failed to prove that the second talub, i.e., the talub by invocation of witnesses, was properly made in accordance with the provisions of the Mahomedan law. The defect pointed out by the lower Appellate Court was that the pre-emptor did not invoke witnesses to bear testimony to the fact that he claimed the property as pre-emptor. In this second appeal, it is contended before us, that it was not necessary according to Mahomedan law, because on the evidence regarding the first talub, which has been believed by the Appellate Court, it was shown that the performance of the first talub was accompanied by the necessary invocation of witnesses, and in support of this contention, the case of Koromali v. Amir All 3 C.L.R. 166 has been cited. The decision, as reported in the Calcutta Law Reports, seems to a certain extent to support this contention, ...
Fazal Imam and ors. Vs. Metta Singh
Court: Kolkata
Decided on: Mar-20-1884
Reported in: (1884)ILR10Cal549
Mitter, J.1. The lower Courts in this case have held that the decree-holders right to execute the decree is barred by limitation. It is contended before us that this decision is wrong, because the present application, which is dated 1st March 1883, is within three years from the date of another application, dated 5th August 1880 made by the judgment-creditor in order to draw out the sale proceeds realised by the sale of certain properties of the judgment-debtor in a previous execution. In support of this contention our attention has been called to the decision in Venkatarayalu v. Narasimha I.L.R. 2 Mad. 174. The lower Courts have decided this case on the strength of a ruling of this Court in the case of Hem Chunder Chowdhry v. Brojo Soondury Debee I.L.R. 8 Cal. 89. We have examined both these rulings, and we find that the one of our Court is exactly in point. No doubt in the Madras case it was given as an additional reason over and above the one on which the decision mainly rested, tha...
Fakir Chand Vs. Fouzdar Misser
Court: Kolkata
Decided on: Mar-18-1884
Reported in: (1884)ILR10Cal547
Mitter, J.1. The lower Appellate Court has found, affirming the finding of the first Court, that the defendant-respondent holds a transferable tenure and therefore cannot be ejected under the provision of Section 52, Beng. Act VIII of 1869.2. The question submitted for our decision is whether a landlord is precluded from ejecting such a tenant, viz., a tenant with a right of occupancy, such right being transferable by sale, and is confined to the course laid down in Section 59 of the Act.3. In the case of Tirbhobun Sing v. Jhono Lall 18 W.R. 206 it was explained that sale, and not ejectment, was the landlord's proper remedy. In the latter case of Krishtendra Roy Chowdhry v. Aena Bewa I.L.R. 8 Cal. 675 : 10 C.L.R. 399 the very question now raised seems to have been discussed, and the decision was against the right of the landlord to eject. The decision under appeal now is in accordance with the cases I have quoted, and should, in my opinion, be confirmed. I would, therefore, dismiss the...
Rakhal Dass Mukherji Vs. Bhola Nath Roy
Court: Kolkata
Decided on: Mar-18-1884
Reported in: (1885)ILR11Cal69
Prinsep, J.1. The point in issue in this appeal is, whether sons of sisters of the whole or half blood are entitled to succeed equally to the estate of a deceased brother. The lower Courts have held that they inherit equally.2. As an authority for this proposition there is a translation of Dyakrama-Sanghraha of Srikrishna Tarkalankara by Mr. Wynch, chap. I, Section 10, Clause 1, in which as an authority the opinion of Acharrya Chudamoney is given. That this was Srikrishna's opinion is confirmed by a reference made to it in a commentary by Jagannatha Tarkapanchanana (see book V, chap. 8, Section 1), or in the edition of 1874, published by Higginbotham & Co., vol. 2, p. 566. From this we learn that some fifty years after Shrikrishna Tarkalankara, Jagannatha Tarkapanchanana, who was a great authority in all matters connected with Hindu law, and probably may have been a contemporary of Srikrishna, distinctly states Srikrishna's opinion to the same effect as has been presented in the transl...
Fuzloor Ruhman Vs. Altaf Hossen and ors.
Court: Kolkata
Decided on: Mar-14-1884
Reported in: (1884)ILR10Cal541
Mitter, J.1. In this case an application for execution of the decree of the Appellate Court, which was passed in the month of February 1879, was made on the 19th January 1882. The petition did not contain the right number of the suit in which the decree was passed, and an order was made on the 19th January, directing the petitioner to amend the petition by giving the right number within four days. This order was not complied with, but notwithstanding the petition was left on the record of the Court without being disposed of in any way. It was brought up again on the 21st September 1882, and on that date it was returned to the vakil of the petitioner to amend it by giving the correct number of the suit within eight days from that date. The required amendment, however, was made on the day following, viz., on the 22nd September 1882, and the application was put upon the record again. Thereupon the Court directed it to be registered and ordered notice to issue. It is quite clear that if th...
Mahomed Makmil and anr. Vs. Abdool Abood and ors.
Court: Kolkata
Decided on: Mar-13-1884
Reported in: (1884)ILR10Cal562
McDonell, J.1. This appeal is concerned with plot No. 1 only. The parties are Mahomedans. The property in dispute was purchased by a conveyance executed in the name of the defendants' father. The plaintiffs, however, claim a share on the ground that, although the conveyance was in the name of the defendants' father, the family was at the time living in commensality, and the funds with which the purchase was made were joint funds.2. The Munsif dealt with the question on the ground that the purchase was made from joint funds, and that, therefore, the plaintiffs were entitled to a share.3. The case then came on appeal before the Subordinate Judge. He first held that the suit in respect of this plot was barred by Section 13 of the Code of Civil Procedure.4. A review was then applied for and granted, and upon the review he changed his mind as to the applicability of Section 13 and then proceeded to deal with the merits. He says in his judgment: 'True that the kobalas of purchase were execut...
Anderson Vs. the Corporation of the Town of Calcutta
Court: Kolkata
Decided on: Mar-06-1884
Reported in: (1884)ILR10Cal445
Richard Garth, C.J.1. This suit was brought by the plaintiff to recover damages from the defendants for injuries which he sustained in consequence of an excavation having been dug in Chowringhee Road in the execution of certain works, and left after dark in a dangerous condition.2. The plaintiff and a friend were driving a horse and gig along the road, and there being no sufficient lights or fences to prevent the accident the plaintiff was thrown from the gig into the excavation and sustained very serious injury.3. The suit was originally brought against the Commissioners of the town of Calcutta, and the defendant Nolit Mohun Chatterjee who was the contractor employed to execute the work. But upon the Commissioners' submitting to the Court in their written statement that if any one was liable for the accident it was the Secretary of State for India or the contractor, the plaint was amended, and the Secretary of State was made a defendant.4. At the trial, however, the learned Judge dism...
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