Kolkata Court July 1897 Judgments
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Kasiswar Mukhopadhya Vs. Mohendra Nath Bhandari and ors.
Court: Kolkata
Decided on: Jul-14-1897
Reported in: (1898)ILR25Cal136
Banerjee, J.1. The only question raised in this appeal is, whether the Courts below are right in holding that the suit is barred under Section 13 of the Code of Civil Procedure.2. The suit was one for khas possession of certain plots of land. The former suit, the judgment in which is made the basis of the plea of res judicata, was brought by the predecessor in title of the present plaintiff against the present defendants for rent, and one of the questions raised in the case in the first Court, and the only question upon which the decision of the case was made to rest finally in the Appellate Court, was whether the land, in respect of which rent was claimed, was the mal land of the plaintiff, or the lakhiraj land of the defendants. That question was determined by the Appellate Court against the plaintiff, and his suit was dismissed. The Lower Appellate Court has held that the judgment in the former suit operates as res judicata upon the question raised in this case, namely, whether the ...
Gyannessa and ors. Vs. Mobarakannessa and ors.
Court: Kolkata
Decided on: Jul-14-1897
Reported in: (1898)ILR25Cal210
Macpherson, J.1. The plaintiffs Nos. 1 to 3 and the defendants Nos. 2 to 4, being the descendants of one Naffar Mahomed, were the owners of the jote which is the subject of this suit and other properties. In June 1888, they entered into a written agreement called a solenama, by which the plaintiffs took a two-third share and the defendants a one-third share of the jote. The solenama is not before us, and we are not acquainted with its precise terms, but it is said to have effected a settlement of the disputes relating to all the family properties and to have provided for a partition of them. One provision admittedly was that, in the event of a partition, the defendants should take the whole jote as representing their share of all the properties.2. The plaintiffs claim a two-third share of the jote alleging a dispossession by the defendants in March or April 1892. The first defendant claims to have purchased the entire jote from the other defendants after the partition contemplated by t...
Achalabala Boss. Vs. Surendra Nath Dey.
Court: Kolkata
Decided on: Jul-13-1897
Reported in: (1897)ILR24Cal766
Jenkins, J.1. This is an ordinary mortgagee's suit in which the plaintiff seeks to enforce her security, and the only question involved is whether the decree should provide for the payment of subsequent interest. The doubt is due to a decision of the Allahabad Court in the case of Amolak Ram v. Lachmi Narain I.L.R. 19 All. 174 the head note of which is as follows:In a suit upon a mortgage for the sale of the property mortgaged the Court has no power to allow in the account under Section 80 of the Transfer of Property Act, 1882, or in its declaration under that section, interest for a period beyond the date of payment which is to be fixed within six months from the date of the decree.Sections 209 and 222 of the Code of Civil Procedure, 1882, do not affect the special provisions as to allowance of interest contained in the Transfer of Property Act, 1882.In construing a decree, the terms of which are ambiguous, such construction must, if possible, be adopted as will make the decree in acc...
Shama Churn Mitter and ors. Vs. Wooma Churn Haldar
Court: Kolkata
Decided on: Jul-13-1897
Reported in: (1898)ILR25Cal36
Banerjee, J.1. This appeal arises out of a suit for ejectment upon a notice to quit. The defence was limitation, denial of the plaintiffs' right, denial of the notice, and a plea that a part of the land in dispute belonged to the defendant and had been held by him for twelve years, and that the defendant had acquired a right to the whole of the land in dispute by twelve years' Adverse possession.2. The first Court found for the plaintiffs upon all the questions raised, except one, namely, that as to the defendant's title by adverse possession to 1 3/4 cottahs of land out of the land in dispute, and it accordingly gave the plaintiffs n decree for the land in dispute excepting 1 3/4 cottahs.3. Against this decree of the first Court the defendant preferred an appeal, and the plaintiffs a cross-appeal. The Lower Appellate Court has dismissed the plaintiffs' cross-appeal, holding that they have failed to make out their title to 1 3/4 cottahs in regard to which their claim had been disallowe...
Durga Prasad Banerjee and ors. Vs. Lalit Mohon Singh Roy
Court: Kolkata
Decided on: Jul-13-1897
Reported in: (1898)ILR25Cal86
O'Kinealy and Rampini, JJ.1. This is an appeal from the decision of the Subordinate Judge of Burdwan, dated the 1st August 1896; and the question we have to determine is whether a sum paid under an agreement void under Section 257A of the Code of Civil Procedure, can be acknowledged or recognised in execution of a decree under Section 258, unless it has been certified within the proper time.2. Section 257A refers to two kinds of agreement, (1st) 'agreements to give time for the satisfaction of a judgment-debt,' and (2ndly) 'agreements for the satisfaction of a judgment-debt.' If the Court does not sanction them they are void. If the Court sanctions them they may be carried out in execution. For the section states that 'any sum paid in contravention of the provisions of this section,' that is any sums paid under agreements void, 'shall be applied to the satisfaction of the judgment-debt; and the surplus, if any, shall be recoverable by the judgment-debtor.'3. The agreement in this case ...
Karmokar and ors. Vs. Gout Mohun Gouli and anr.
Court: Kolkata
Decided on: Jul-12-1897
Reported in: (1898)ILR25Cal49
Banerjee, J.1. This appeal arises out of a suit brought by one Dinonath Karmokar to obtain a declaration that a decree originally obtained by the defendant No. 4 against the defendants Nos. 2 and 3, which had been purchased in the name of defendant No. 1, had really been purchased by the plaintiff for his own benefit.2. The plaintiff, in his plaint, stated that execution had been taken out by him in the name of his benamdar, the defendant No. 1, but that subsequently a dispute having arisen between him and the defendant No. 1, the latter wrongfully, against his consent, took out execution in the year 1892, and that this was his cause of action for bringing the present suit.3. There was a further relief asked for relating to certain immoveable property, but that was subsequently given up, and the suit proceeded only with reference to the first mentioned relief, namely, the relief by way of a declaration that the decree in question had been purchased by the plaintiff in the name of the d...
Aubhoya Churn Dey Roy and anr. Vs. Bissesswari and ors.
Court: Kolkata
Decided on: Jul-09-1897
Reported in: (1897)ILR24Cal889
Macpherson and Ameer Ali, JJ.1. On the 26th November 1890 the appellants presented an application for permission to sue in forma pauperis.2. The application was rejected on the 16th May 1891. The Subordinate Judge, by an order of the same date, allowed them time within which to pay the necessary Court-fee stamps. The stamps were afterwards put in, and apparently affixed to the original pauper application which was treated as a plaint in the suit.3. It is found that the appellant's cause of action in the suit arose on the 28th November 1878, so that the time within which the suit could have been brought expired two days after the application to sue as a pauper had been presented. Both the Courts have now dismissed the suit on the ground that it is barred by limitation, and we think it is quite clear that the decision is right.4. Under Section 409 of the Code of Civil Procedure, the Court was bound either to allow (sic)to reject the application. If it allowed the application, it was to b...
Dharam Chand Lal Vs. Bhawani MisraIn and anr.
Court: Kolkata
Decided on: Jul-09-1897
Reported in: (1898)ILR25Cal189
R. Couch, J.1. The facts in this case are that one Sobh Nath Misser died about twenty years ago---the precise date of his death does not appear---and left two widows, one Saraswati Misrain and the other Bhawani Misrain After his death disputes arose between the widows as to their rights, and a compromise was come to, the terms of which are stated in a previous judgment which is set out in the proceedings and which seems to have been taken admittedly as correct. The statement is this: 'And in respect of our respective shares each party has obtained absolute proprietary right of every sort and division has been made and will be made as below, and, except in respect of the matter noted below, neither party has any claim against any other.' This compromise could only apply to the shares to which the two widows were entitled as widows. They had no power, by a compromise between themselves, to affect the rights of the successor to the estate on their death, and so far under the compromise th...
Bhuggobutty Prosonno Sen Vs. Gooroo Prosonno Sen and ors.
Court: Kolkata
Decided on: Jul-09-1897
Reported in: (1898)ILR25Cal112
Sale, J.1.The first objective which has been urged against the suit, is that it is not maintainable as (sic). The objection is thus stated in the 1st paragraph of the written statement of Gooroo Prosonno Sen:This defendant submits that the suit as framed cannot be maintained, inasmuch as it is not competent to the plaintiff to sue for the construction in part only (and not as a whole) of the will of the testator Gunga Prosad Sen, nor for the administration or execution of part only (and not of the whole) of the trusts of the said will, nor for the relief claimed, otherwise than in a suit for general administration oil the estate of the said testator.2. The argument is that the course which this Court ought to adopt as regards the present suit is the course which the Court of Chancery would have followed in a like case before the practice was introduced of determining on an originating summons isolated questions arising in the course of administration of an estate without taking the acc...
Sumbhu Nath Santra Mahapatra and ors. Vs. Surjamoni Dei and ors.
Court: Kolkata
Decided on: Jul-08-1897
Reported in: (1898)ILR25Cal187
Morris, J.1. In this case appeals have been lodged on the part of the appellants although there have been concurrent findings of two Courts in India, the District Court and the High Court, on matters of fact. There were three questions submitted. First whether the widow Srimati Surjamoni Dei was the donee of a power of appointment by her husband, Bonomali Mahapatra, to adopt a son; second whether she had adopted a son (that of course was on the assumption that she had a power to adopt, for it must have been a valid appointment); and, thirdly, whether she had treated the appellant as her I adopted son. Both Courts have found there was no power of adoption granted by her husband. The alleged power to adopt was said to have been given orally, and the witnesses were examined in support of that allegation, but they were not believed, and consequently it must be taken that the widow had no power. The contentions Nos. 2 and 3 of themselves can give no estate to the appellant, because if this ...
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