Court : Kolkata
Reported in : (1902)ILR29Cal33
Maclean, C.J.1. The first question raised by the opposite party in showing cause against this Rule is that the case does not come within Section 622 of the Code of Civil Procedure, inasmuch as the Court below has only committed an error of law in the construction it has put upon Section 108 of that Code. That question seems to me to be concluded by the judgment of the Full Court in the case of Jogodanund Singh v. Amrita Lal Sircar (1895) I. L. R. 22 Calc. 767, and, therefore, I do not propose, as that authority binds us, to say anything more upon that point. The decision of this Court in the case of Mathura Nath Sarkar v. Umes Chandra Sarkar (1897) 1 0. W. N. 626, is distinguishable from the case before the Full Court, to which I have already referred.2. The question then arises whether the representatives of the original defendant are entitled to apply to have the ex-parte decree against their predecessor in title set aside under Section 108 of the Code of Civil Procedure. I am unable...
Tag this Judgment!Court : Kolkata
Reported in : (1901)ILR28Cal441
1. This is an appeal against a decision of the District Judge of Patna, dated the 25th of August 1898.2. The suit, out of which the appeal arises, relates to probate of a will put forward as that of a deceased person named Bal Kishen. The will purports to have been executed on the 25th of July 1897. The testator is said to have died on the 2nd of August 1897, and the application for probate was made on the 17th idem. The grant of probate is opposed by the Patna Loan Office, which claims to be a creditor of one of the natural heirs of the deceased, namely, Gopi Chand, his brother; and the allegation of the Loan Office is that the will in dispute is a forgery, which has been set up at the instance of the brothers of the deceased, Gopi Chand and Puran Chand, so as to put the property of the deceased beyond its reach; for, if the property had descended to the natural heirs of the deceased, as it would have done, if there had been no will, then the property would have been liable to be atta...
Tag this Judgment!Court : Kolkata
Reported in : (1901)ILR28Cal587
Maclean, C.J.1. This appeal arises out of an application for revocation of Letters of Administration with the will annexed, the application being made on the 10th of October 1898, and the Letters of Administration having been granted on the 21st of June 1892, The will set up is dated the 2nd October 1882: it will thus be seen that no application for Letters of Administration was made, although we are informed that executors had been appointed by the will, till nearly ten years after the date of the alleged will.2. The alleged testator left two sons as his heirs, and from the date of the father's death up to the time of the Letters of Administration being granted, they had, throughout, dealt with the property as his heirs, and at no time was there any suggestion made that the father had left a will. They had mortgaged and sold the property and dealt with it entirely as their own; and the present applicant for revocation of the Letters of Administration is the purchaser of a large portio...
Tag this Judgment!Court : Kolkata
Reported in : (1902)ILR29Cal43
Rampini and Gupta, JJ.1. The suit out of which this appeal arises is to recover a sum of Rs. 11,23,147, being the principal, interest and compound interim due upon two mortgage bonds executed by the defendant and dated the 19th June 1888 and the 15th June 1891 respectively. The first bond is for Rs. 4,35,000, and the second for Rs. 1,65,000. The conditions of the 1st bond are: (1) that the defendant is to pay interest at as 14 per cent. per month (that is 10 1/2 per cent. per annum) with six-monthly rests; (2) that on the failure to pay interest at the end of 6 months, then compound interest at the rate of 1-8 per cent. per month (or 18 per cent. per annum) is to be paid; (3) that interest is to be calculated according to the Hindi calendar, according to which there are 13 months in each year; and (4) that if interest is not paid for one year, then interest to run on the principal at 1 per cent. per mensem from the date of the bond. The stipulations of the second bond are similar, exce...
Tag this Judgment!Court : Kolkata
Reported in : (1901)ILR28Cal471
1. This is an appeal against a decision of the District Judge of Mozafferpur in a settlement proceeding.2. The Settlement Officer had, upon the application of certain raiyats, held that their rents should be entered as Rs. 13-6-6 instead of Rs. 29-4-6, as alleged by their landlord. On appeal to the District Judge he held on the authority of the case of Dengu Kazi v. Nobin Kissori Chowdhrani (1897) I.L.R. 24 Cal. 462 that the matter was res judicata, as there had previously been a dispute between the parties in the coarse of which, viz., on the 16th December 1896, the rent had been found to be as' alleged by the landlords (the respondents before us).3. The raiyat appellants now urge that the matter is not res judicata, as the previous decision of the Settlement Officer was passed in a case under Section 105, and was not passed between the same parties as the parties to the present suit.4. It is not clear from the previous order itself whether it was passed in a case under Section 105, o...
Tag this Judgment!Court : Kolkata
Reported in : (1902)ILR29Cal148
Amber Ali and Pratt, JJ.1. The question involved in this second appeal turns upon the construction of Section 85 of the Bengal Tenancy Act. The plaintiff alleges that he has acquired by purchase the disputed land, which consists of several plots, that the defendants Nos. 1 to 10 were korfa raiyats under his vendor and, inasmuch as under Section 85 of the Tenancy Act, the sub-leases granted to them by the previous holder purporting to be mocurrari had expired at the end of nine years from the commencement of the Tenancy Act, lie seeks in this suit to recover khas possession of the land in question. He also alleged that he had served the defendants with a notice under Section 49 of the Tenancy Act. The defendants 11 to 16 are mortgagees under the defendants 1 to 10.2. The defendants Nos. 6 and 7 filed written statements in which among' other pleas they urged that the provisions of s. 85 of the Tenancy Act, which debar the grant of subleases for more than nine years, do not apply to under...
Tag this Judgment!Court : Kolkata
Reported in : (1902)ILR29Cal370
Maclean, C.J.1. This is a suit by an auction-purchaser claiming from the decree-holder a refund of a portion of the purchase-money paid by him, on the ground that, instead of the area of the property sold being, 400 bighas, as stated in the sale proclamation, it is only 250 bighas, and also asking for abatement of rent in respect of such deficiency of area.2. The auction sale was held on the 17th June 1893; the purchase-money was Rs. 1,200; the sale has been confirmed and the sale certificate granted.3. The suit was instituted on the 15th March 1895. The sale proclamation, which gave particulars and a description of the property to be sold, is not before us; but we are informed that the property was described as a tenure consisting of 400 bighas within certain boundaries.4. The suit is based upon the alleged fraud of the decree-holder. It is alleged that the decree-holder made false and fraudulent allegations in respect of the area of the property mentioned in the proclamation of sale,...
Tag this Judgment!Court : Kolkata
Reported in : (1901)ILR28Cal685
1. This is an appeal against the decision of the District Judge of Sylhet made on a reference by the Deputy Commissioner of Sylhet under Section 19 of the Land Acquisition Act (I of 1894).2. It appears that under the provisions of that Act certain lands belonging to the appellants were taken up by Government for the purpose of the Assam-Bengal Bail way. The area thus acquired amounted to 174 acres, and the railway line was laid down upon it through the estate of the appellants dividing it into two portions. The portion to the south of the railway comprised an area of some 200 acres, and the effect of the construction of the line was to out off this portion of the tea garden from the northern portion, where the residence of the manager and all buildings and offices connected with the management of the tea garden are situated. The coolie lines are also situated to the north of this line. The line, it should be mentioned, runs for a mile and a half through the appellants' garden, and for ...
Tag this Judgment!Court : Kolkata
Reported in : (1901)ILR28Cal744
Francis W. Maclean, K.C.I.E. C.J.1. The facts to which it is necessary to refer for the purpose of our decision may be concisely stated as follows. The predecessors in title of the present appellants, on the 1st of June 1884, granted certain putni leases of certain properties, the details of which it is unnecessary to enter into; in 1888, they, in execution of a decree for arrears of rent due under the putni leases, purchased the putni leases, they being at that time the zemindars of the property. The putni rights by this purchase became vested in the zemindars. In May 1896, the present plaintiffs bought at a revenue sale the zemindari rights of the appellants in the lands which, with other lands, were included in the above putnis, and on the 30th of March 1898, the present suit was instituted to have an apportionment of the rent payable to them under the putnis in respect of their zemindari interest so purchased, for payment to them of the amount which might be found due upon such app...
Tag this Judgment!Court : Kolkata
Reported in : (1901)ILR28Cal465
Maclean, C.J.1. The only question which arises on this appeal is whether the present application for execution is barred by the statute of limitation.2. It appears that the suit is one for partition, in which a decree was made so far back as 1890 and, under that decree, the present appellant had to pay to the defendants Nos. 1, 2, and 3 a sum of Rs. 800 or Rs. 900 by way of equality of partition. So far as this payment is concerned, it was a joint decree. Defendants Nos. 2 and 3 are the present respondents. Nothing has been done by the defendants Nos. 1, 2 and 3 to enforce the abovementioned partition of the decree, until the present application was made by the defendants Nos. 2 and 3, the younger of whom is still a minor, whilst the other attained his majority a short time, at any rate within 3 years, before the present application.3. The question is whether the present application is out of time, and this depends upon whether or not the applicants are entitled to the benefit of Secti...
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