Court : Kolkata
Reported in : (1901)ILR28Cal339
Ameer Ali, J.1. In this case, the petitioner Kamala Prasad was convicted by the Deputy Magistrate of Gya under Section 331 of the Indian Penal Code, and sentenced to undergo two years' rigorous imprisonment and to pay a fine of Rs. 100, or in default of payment, to undergo six months' further imprisonment. He preferred an appeal to the Sessions Judge, who has confirmed the conviction and upheld the sentence. A rule was applied for and obtained from this Court calling upon the District Magistrate to show cause why the conviction and sentence should not be set aside on the ground that the evidence of the accomplice upon which the judgment is based has not been sufficiently corroborated in law, and also on the ground, that there is no sufficient evidence to support the conviction. Mr. Roy for the accused has placed the entire evidence before us, and has contended that the witness Dusain was an accomplice, and that his statements regarding the identity of the accused and the latter's parti...
Tag this Judgment!Court : Kolkata
Reported in : (1901)ILR28Cal397
1. Mr. Roy takes a preliminary objection to the trial in the Sessions Court on the same ground as was put forward in the Court below. It appears that an enquiry was held in this case by a Deputy Magistrate, who discharged the accused under Section 209 of the Code of Criminal Procedure. The District Magistrate, upon going through the record, came to the conclusion that the prisoner had been improperly discharged; he thereupon called upon the accused to show cause, why he should not be committed to the Court of Session; and, after hearing his pleader, directed his commitment.2. Mr. Roy's contention is that the commitment is bad and ought to be quashed under Section 532 of the Code of Criminal Procedure, as the District Magistrate had no power himself to commit, be could only direct the officer, who had discharged the accused, to do so. In support of this contention, he refers to the language of Sections 436 and 437 and urges that the words 'order him to be committed for trial' in Section...
Tag this Judgment!Court : Kolkata
Reported in : (1901)ILR28Cal324
1. This appeal arises out of a suit brought by the plaintiff-appellant to recover possession of certain immoveable property.2. The first Court gave the plaintiff a decree. On appeal by the defendant No. 1 the Lower Appellate Court held that the first Court's judgment was based upon an admission of the defendant which could be explained, if a certain question of fact, namely, what was the position of the river Padma at a certain date, was correctly determined, and as that question the Lower Appellate Court found had not been properly determined, it remanded the case to the first Court. But instead of remanding it under Section 566 of the Civil Procedure Code, as it ought to have done, it made its remand order under Section 562 of the Code, after setting aside the decree of the first Court, and it directed that Court to decide the suit itself. No appeal was preferred against this erroneous remand order, although an appeal could have been preferred under Clause 28 of Section 588 of the Co...
Tag this Judgment!Court : Kolkata
Reported in : (1901)ILR28Cal446
1 The facts which gave rise to the application upon which this Rule was granted are shortly these: The land in dispute covers an area of over 200 bighas and was the subject of a proceeding between two sets of zemindars, called respectively the Kharoria and Shahapur Babus. An order was made in favour of the Kharoria zemindars under Section 145 of the Code of Criminal Procedure. A civil suit was then brought by the Shahapur zemindars in respect of the lands in question, and they succeeded in obtaining a decree therefor. They obtained symbolical possession under their decree and then proceeded to give pottahs to various people, who are now grouped as second party in the proceedings before us. The first party is one Ejaharuddi, and he claims to have been, since a long time, in occupation of the lands in dispute. He presented a petition to the Deputy Magistrate on the 7th April, 1900, in which he stated that he was the tenant of the Kharoria zemindars in respeot of the lands in dispute, and...
Tag this Judgment!Court : Kolkata
Reported in : (1901)ILR28Cal318
1. Two questions have been raised in this appeal: First, whether the Lower Appellate Court was right in holding that the stipulation in the kabuliat relied upon by the plaintiff for the delivery of certain articles to the plaintiff's landlord by the defendants, or in default for compensating the plaintiff for any damage she might sustain, was not in the nature of a stipulation for paying an abwab; and second, whether the Court of Appeal below was right in holding that the issue whether the aforesaid stipulation was legally enforceable or not was res judicata, and concluded in favour of the plaintiff by the decision in a previous suit, namely, suit No. 492 of 1868 of the Court of the Muneif of Goas.2. If the second question is answered in the affirmative, the first question will not arise, as it will not be open to the Court to consider it. We shall, therefore, deal with the second question first.3. It is not disputed that the former suit was one between the same parties, and the questi...
Tag this Judgment!Court : Kolkata
Reported in : (1901)ILR28Cal246
1. This appeal arises out of a suit brought by the plaintiffs-appellants to recover money due under a mortgage deed executed by the defendants in favour of the predecessor-in-title of the plaintiffs, and for certain other sums of money claimed as damages, on the allegation that the mortgage security has been impaired by reason of a decree obtained by one Bhagaban Chunder Nuskar against the plaintiffs, and that the plaintiffs had to incur expense in the litigation with Bhagaban Chunder Nuskar.2. The defence, so far as it is necessary to refer to it for the purposes of this appeal, was a denial of liability, on the ground of no money having been borrowed on the mortgage deed, and also on the ground that the plaintiffs' prayer for foreclosure and sale was illegal, and on the further ground that the mortgage security was not impaired by any wrongful act on the part of the defendants.3. The First Court held that the plaintiffs were not entitled to any decree for sale of the mortgaged proper...
Tag this Judgment!Court : Kolkata
Reported in : (1901)ILR28Cal311
1. Two questions have been raised in this appeal by the learned vakil for the plaintiff appellant: First, whether according to the Bengal School of Hindu Law the husband or the brother is the preferential heir to moveable property obtained from her father, after her marriage, by a woman who has died childless, and second, whether additions made subsequent to her marriage to ornaments given by a father to his daughter at the time of her marriage should be treated as a part of the nuptial presents and as devolving according to the rule of law applicable to nuptial presents.2. Upon the first question, though there is no doubt some conflict between the Dayabhaga on the one hand and the Daya Tatwa and the Dayakrama Sungraha on the other, the Dayabhaga, which is the work of paramount authority in the Bengal School, is clearly in favour of the brother's preferential right. This is evident from paragraphs 10 and 29 of Section III of Chapter IV of that treatise.3. The learned vakil for the appe...
Tag this Judgment!Court : Kolkata
Reported in : 58Ind.Cas.671
1. This appeal arises under the flowing circumstances:-- Lakhan was the holder of a separated 8-annas share of a Mokararitenure under Kailash Misra, the rent-free proprietor. Lakhan had two sons Goday and Becharam be interest of the latter being indented by his four sons. Kailash sued Goday and his nephew for arrears of rent of the 8 annas Mokarari in question; and a compromise decree was passed whereby it was agreed, that Goday's moiety interest should be separated off from the moiety of Becharam's sons each being deemed an independent tenure. That decree is dated the 23rd March 1889. In execution of the decree the 4-annas share belonging to Becharam's sons was put up for sale and was purchased on the 21st June 1890 by Surjya Naryan Gossain. Subsequently, Kailash sued Suriya Narain for arrears of rent, and in execution his 4-annas interest was purchased by the plaintiff on the 22nd January 1894.2. The plaintiff brought this suit on the allegation that he had been put in possession by ...
Tag this Judgment!Court : Kolkata
Reported in : (1901)ILR28Cal532
1. This appeal arises out of a suit for rent instituted under Act X of 1859. The claim was in respect of the year 1305 (Urya style=24th Bhadra 1304 to 12th Bhadra 1305 B.S.) It was opposed by the defendant, the tenant, upon the ground that the plaintiff had no right to recover it; and he was supported in that respect by a third party, who intervened under the provisions of Section 77 of the said Act. 2. The Deputy Collector, who had to try the suit, was of opinion that the plaintiff was entitled to recover the rent and accordingly passed a decree in his favour. 3. An appeal was preferred against that decree to the District Judge, and that officer has reversed the judgment of the Deputy Collector upon the ground that the plaintiff is not entitled to recover the rent claimed. We shall presently notice the grounds, upon which the learned Judge has come to this conclusion. 4. The appeal to this Court is by the plaintiff, and a preliminary objection has been raised on behalf of the responde...
Tag this Judgment!Court : Kolkata
Reported in : (1901)ILR28Cal272
Maclean, C.J.1. This is a suit against certain Insurance Companies to recover certain sums secured on various Fire Policies.2. On the 18th of April 1899 an order was made in the suit referring it to the Registrar to ascertain the value of the plaintiff's' gola at the date of the fire in the pleadings mentioned, and also the amount of rice then in the gola and the value thereof, with other directions.3. The Registrar made his report on the 28th of October 1899. The report was for some reason or other not filed until the 2nd of March 1900. On the 9th of March the defendants' solicitors were informed of the filing of the report. On the 15th of March they filed certain objections to that report. They did not, with those objections, serve any notice of motion to discharge or vary the report.4. Mr. Watkins, who acted as solicitor for the Insurance Companies at that time, states that, on the 27th of March 1900, he first became aware of the decision in the case of Lutchmee Narain v. Byjanauth ...
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