Kolkata Court May 1886 Judgments
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Surnamoyi Vs. Huro Chunder Roy
Court: Kolkata
Decided on: May-31-1886
Reported in: (1886)ILR13Cal266
Mitter and Grant, JJ.1. It appears to us that the lower Appellate Court in this case has rejected the appeal as filed out of time and refused to admit it under Section 5, on the ground that a bona fide mistake made by the appellant in the respect of the limit of time within which Recording to law he is bound to file his appeal is under no circumstances a valid ground for admitting an appeal under Section 5.2. We are of opinion that is not a correct view of the provisions of Section 5. It is for the Judge in each case to exercise his discretion, having regard to the particular facts established before him. We upon that ground set aside his order rejecting the appeal and remand the case to him to decide that point again.3. We may, however, point out that if the facts stated before us are correct, and if the matter had been left to us to decide, we should have been very much inclined to think that the appeal should be allowed to be filed under Section 5. We may here state the facts that h...
Chairman of the Naihati Municipality Vs. Kishori Lal Goswami
Court: Kolkata
Decided on: May-28-1886
Reported in: (1886)ILR13Cal171
O'Kinealy and Agnew, JJ.1. This is an appeal from the decision of the Judge of 24-Pergunnahs on a reference under the Land Acquisition Act, X of 1870.2. The Municipality claimed compensation for the whole soil, on the ground that they have a title to the property under Section 32 of Act V of 1876, The zamindar claims the money on the ground that, the soil is his. Therefore, what we have to decide is, whether, under Section 32 of Act V of 1876, the Municipality got all the sub-soil under the public way. Section 32 runs as follows: 'All roads, bridges * * * * and the pavements stones and other materials thereof, and all erections, materials, implements, and other things provided therefor, shall vest in and belong to the Commissioners.'3. If, therefore, the word 'road' carried with it all the soil, all the materials, and all the erections on it, this enumeration in express words, of 'pavements,' 'stones,' &c;, would be unnecessary. Clearly, then, there must be some limitation to the word ...
Corportion of the Town of Calcutta Vs. Matoo Bewah and ors.
Court: Kolkata
Decided on: May-27-1886
Reported in: (1886)ILR13Cal108
Pigot and Macpherson, JJ.1. We are of opinion that both questions should be answered in the negative. The section contemplates one offence and one prosecution, a conviction upon which is to involve a liability to fine not exceeding Rs. 100 and to a further fine not exceeding Bs. 20 for each day during which the offence is continued.2. In Garrett v. Messenger L.R. 2 C.P. 583 the offence was the keeping a house for public dancing, &c;, without a license, and the section under which the prosecution was instituted provided that 'every person keeping such house, &c;, without such license as aforesaid, shall forfeit the sum of 100 to such person as will sue for the same.' Two actions were brought under the Act by common informers, each to recover a penalty of 100. A verdict was taken in the first, and in the second, Wills, J., held that the penal powers of the Act were exhausted by the recovery of one penalty: the full Court concurred in this view, Bovill, C.J., saying that, if the Legislatu...
Ahmed Mirza Saheb and anr. Vs. A. Thomas Executor to the Estate of the ...
Court: Kolkata
Decided on: May-27-1886
Reported in: (1886)ILR13Cal162
Ghose and Grant, JJ.1. The only question we have to decide in this appeal is whether the lower Courts were right in holding that the plaint was insufficiently stamped, because the stamp duty payable was not Rs. 10 under Clause 3, Article 17, Schedule II of the Court Fees Act, but the ad valorem fee as prescribed by Schedule II of the said Act.2. It appears that, in execution of a certain decree obtained by one Thomas against Mahomed Mirza, the property in suit was attached as belonging to the judgment-debtor. The plaintiff preferred a claim, but his claim was disallowed, and the property in question was ordered to be sold. Thereupon, the plaintiff brought the present suit to have it declared that the property belonged to him and not to Mahomed Mirza.3. It seems to us that this was a suit where consequential relief was asked for. It was a suit which was brought for the purpose of establishing the plaintiffs' right to the property in question, and with a view to free the property from th...
Hazi Khosh Mohamed Sirkar Vs. Sajibullah Sirkar
Court: Kolkata
Decided on: May-27-1886
Reported in: (1886)ILR13Cal264
Mitter and Grant, JJ.1. In this second appeal it is contended on behalf of the defendant-appellant that the Munsif s view of Section 77 is correct. Section 77 says, omitting the parts which are not material to the question before us, that where a Registrar refuses to order a document to be registered under Section 76, any person claiming under such document may, within 30 days after1 the making of the order of refusal, institute in the Civil Court a suit for a decree directing the document to be registered. The question, therefore, is whether there was a refusal by the Registrar to order the document to be registered under Section 76. We are of opinion that the mere fact of the applicant not having adduced any evidence before the Registrar does not make his order one not refusing registration within the meaning of Section 76. The absence of evidence to establish the execution of the deed cannot be a test with reference to the question whether there is or not a refusal under Section 76,...
BipIn Behary Daw Vs. Sreedam Chunder Dey
Court: Kolkata
Decided on: May-25-1886
Reported in: (1886)ILR13Cal42
Trevelyan, J.1. I think the question is inadmissible. I do not think the statement of the father as to the date of the son's birth is evidence. Illustration (1) to Section 32 would be material in cases of pedigree; but the rule which admits hearsay evidence in pedigree cases is confined to the proof of the pedigree, and does not apply to proof of the facts which constitute a pedigree, such as birth, death and marriage, when they have to be proved for other purposes. See Haines v. Guthrie L.B. 13 Q.B.D. 818.2. This question does not come under para. 5 of Section 32 or any other paragraph of that section....
In Re: Ram Das Maghi and anr.
Court: Kolkata
Decided on: May-20-1886
Reported in: (1886)ILR13Cal110
1. This case merely followed the decision in Kamruddin Dai v. Sonaton Mandal I.L.R. 11 Cal. 449 holding on the authority of that case that the judgment given by the Magistrate was not a judgment in accordance with Sections 367 and 424 of the Code. The Court ordered the judgment to be set aside and directed that the appeal should be reheard....
Jodoonath Mundul Vs. Brojo Mohun Ghose and
Court: Kolkata
Decided on: May-20-1886
Reported in: (1886)ILR13Cal174
Prinsep, J.1. This is an appeal against an order passed by the Munsif refusing to give the decree-holder permission to purchase at a sale held in execution of a decree.2. In our opinion no appeal lies against such an order. The appellant's pleader contends that an appeal lies under Section 588, Clause 16, but that clause seems to us to allow an appeal only against an order under Section 294 confirming or setting aside or refusing to set aside a sale of immoveable property, and not against an order refusing to give a decree-holder permission to bid. The appeal must therefore be dismissed with costs....
Nilruttun Lal and ors. Vs. Torab Ali Khan and ors.
Court: Kolkata
Decided on: May-15-1886
Reported in: (1886)ILR13Cal155
Porter and Agnew, JJ.1. The plaintiffs' case is that, on the 26th of January 1871, the defendant Torab Ali opened a banking account with their firm in the name of one Asgar Hossein; that on the 29th of May 1873, Torab Ali drew out the amount of the balance at the credit of Asgar Ali, and made it over to the defendant Mussamut Bhikhan; and that, on the 30th of January 1878, a decree was made against the plaintiffs for the refund of this amount at the suit of the heirs of Asgar Hossein, The plaintiffs further state that some of the heirs executed a release to them for the amount of their shares, and that they were obliged to pay the sum of Rs. 930-0-6 to the other heirs on the 15th of January 1883. They now sue for this sum and for Rs. 125-15-6 for interest. The suit was instituted on the 5th of February 1884, the plaintiffs alleging that their cause of action accrued on the day when they had to pay the sum of Rs. 930-0-6. The first Court held that the suit was governed by Article 115 of...
Kristo Bhabiney Dossee Vs. Ashutosh Bosu Mullick and anr.
Court: Kolkata
Decided on: May-12-1886
Reported in: (1886)ILR13Cal39
Trevelyan, J.1. I do not think that there is in reality any conflict of authority in this case. Mr. Justice Phear's decision in Call Churn Mullick v. Janova Dossee 1 Ind. Jur. 284 was based upon three decisions of the Supreme Court. Mr. Justice Phear's decision seems to have been accepted as an authority with regard to the Bengal school of law in the recent case of Damoodur Misser v. Senabutty Misrain I.L.R. 8 Cal. 542. According to Mr. Justice Phear's decision, in a partition between sons by different wives, the respective mothers are only entitled to share equally with their own sons the aggregate of the shares which an equal division among the brothers allots to those sons; or, in other words, the property must be first divided into as many shares as there are sons. Each widow then shares equally with each of her sons the portion allotted to her sons. I have been referred to a decree passed by Mr. Justice Wilson on the 21st of July 1880 in the case of Torit Bhushun Bonnerjee v. Tara...
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