Kolkata Court December 1909 Judgments
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Manindra Chandra Roy Chowdhury and anr. Vs. Balaram Das
Court: Kolkata
Decided on: Dec-20-1909
Reported in: 5Ind.Cas.725
1. We are invited in this Rule to set aside an order of the Court below in affirmance of an order of the Court of first instance granting an application for a review of judgment. It appears that on the 31st March 1908, an order was made in the original suit by which an application for amendment of pleadings was granted. The application stated that certain parties and the claim to recover certain parcels of land against them had been improperly joined with the result that the suit as framed was open to objection on the ground of misjoinder of parties and causes of action. The plaintiff consequently prayed that the plaint might be amended by the omission of the names of those persons and the prayer for recovery of possession of several parcels of land. There was also a prayer that the plaintiff might be granted leave to bring a separate suit upon the same cause of action in respect of the claim, improperly joined and sought to be withdrawn. The order recorded, however, was that the plain...
Chooni Lal Vs. Madhoram and ors.
Court: Kolkata
Decided on: Dec-17-1909
Reported in: (1909)ILR36Cal388
Fletcher, J.1. This is an application by the petitioner for an order that an award made by the Bengal Chamber of Commerce may be filed in Court and that a decree be passed thereon for judgment in accordance with the terms of the award. Upon the matter first coming on before me the application was opposed by the respondents on the same grounds as those raised in Hurdwary's case (1908) 13 C.W.N. 63 with this important exception that it was not suggested in this case that the Arbitrators had allowed the time for making the award to expire before making their award.2. In these circumstances I had to consider whether I ought not to remit this case to the Arbitrators.3. On a more careful study of the Arbitration Rules of the Chamber of Commerce, however, it occurred to me that it was open to doubt whether the arbitral tribunal contemplated by the Rules of the Chamber of Commerce had ever been duly constituted on the ground that the Registrar had failed to appoint an Umpire. Accordingly, I se...
Keshab Chandra Kar and anr. Vs. Rajendra Nath Ghosh
Court: Kolkata
Decided on: Dec-17-1909
Reported in: 5Ind.Cas.101
1. This is an appeal against an order of the lower appellate Court passed on an application, made under the provisions of Sections 311 and 244, Civil Procedure Code, in connection with the execution of a mortgage-decree obtained against the present appellants. The present appellants who made the application contended that the sale of the mortgaged property should be set aside on the ground that no notice as required by the provisions of Section 248, Civil Procedure Code, had been served on them prior to the taking of the proceedings in execution. The Court of first instance allowed the objection but, on appeal, the lower appellate Court has set aside the order of the Court of first instance and has dismissed the application. Hence this appeal.2. The point which has been argued before us is a pure one of law, namely, whether, after the issue by the High Court of the Rules under Section 104 of the Transfer of Property Act, the provisions of Section 248, Civil Procedure Code, can be held ...
Syed Mohmed Mehdihasan Khan and anr. Vs. Phul Kuar Mahton and ors.
Court: Kolkata
Decided on: Dec-16-1909
Reported in: 5Ind.Cas.115
1. In our opinion this appeal should be dismissed. The learned Vakil for the appellants has applied for leave to withdraw the appeal and we do not think it would be fair to the other side to grant that prayer. The only point taken in support of the appeal is whether the action was barred by the statute of limitation. The action was for a declaration that it might be declared that the rent payable by the defendants was Rs. 24-14-6 and not Rs. 17-9-3 which appeared on the record-of-rights. There was also a prayer that the entry in the record-of-rights might be declared to be incorrect. The record-of-rights was published on the 25th June 1901. The present suit was brought on 5th September 1906, but that was not brought by the present appellants. He was substituted on the 11th April 1909, that is to say, after the time allowed by the statute of limitation.2. It is argued that the cause of action namely a declaration for the amount of rent is a continuing cause of action, but we are unable ...
Jitan Prashad and ors. Vs. Musammat Manbart Kuer and ors.
Court: Kolkata
Decided on: Dec-16-1909
Reported in: 5Ind.Cas.85
1. This is an appeal preferred on behalf of the plaintiffs against a judgment of the District Judge of Shahabad, who dismissed the suit reversing the decision of the Subordinate Judge. The suit was brought by the appellants for a declaration that certain property purchased by the father of the plaintiffs, of which the conveyance was taken in the name of Moti Jan, was really the property of the plaintiffs and that the transaction with Moti Jan was merely a benami transaction conveying no title to the property claimed by her. The facts are that the property in question was purchased by a man named Raghubans. Moti Jan was living under the protection of Raghubans as his mistress and Raghubans having purchased the property caused the conveyance to be made in the name of Moti Jan. Raghubans died some 8 or 10 years ago and the present plaintiffs, who are heirs of Raghubans, say that the transaction was not intended to benefit Moti Jan and that they are entitled to the property in question.2. ...
Mahraja Sir Rameshwar Singh Bahadur, K.C.i.E. Vs. Dhanpat Singh and or ...
Court: Kolkata
Decided on: Dec-16-1909
Reported in: 5Ind.Cas.334
Harington, J.1. These two appeals are preferred by the plaintiff against decrees passed by the District Judge of Durbhanga, affirming the decisions of the Subordinate Judge of that District dismissing the suits brought in respect of certain mortgages. The ground on which the suits were dismissed was that the mortgages were created on the property of some minors and that the permission granted to the guardian to execute those mortgages ought not to have been granted because the debt for which the money was borrowed was one for which the minors were not liable; that as the permission ought not to have been granted, the mortgage could not be executed under the Guardians and Wards Act and the plaintiff, therefore, was not entitled to recover the amount.2. Against the decision of the lower Court, the mortgagee has appealed and the appellant contends that the order having been made permitting the guardians to execute the mortgages in question, the mortgagee was not bound to go behind the ord...
Moti Lal Ghosh Vs. Girish Chandra Ghosh and ors.
Court: Kolkata
Decided on: Dec-15-1909
Reported in: 6Ind.Cas.109
1. In this appeal, we are invited by the plaintiff, in an action for partition of joint family properties, to set aside the final decree on the ground that the proceedings of the Commissioners, who were appointed by the preliminary decree to effect a partition, were irregular, and ought not to have been made the foundation of the judgment of the Court. We are also invited, if this fundamental objection fails, to modify the final decree on four subsidiary grounds, namely, first, that the valuation of the tank included in plot No. 35 has been determined upon an erroneous principle, secondly, that each of the plots Nos. 35 and 37 should not have been divided between the plaintiff and the third party defendant, but one plot might have been given to each of these contesting parties; thirdly, that the partition of the dwelling house is not complete inasmuch , as certain walls common to two adjacent rooms have been left joint; and fourthly, that plot No. 60 has not been properly valued. It ha...
Aghore Nath Mukerjee and ors. Vs. Kamini Debi
Court: Kolkata
Decided on: Dec-15-1909
Reported in: 6Ind.Cas.554
1. The substantial question of law which arises in this appeal relates to the right of succession to the office of shebait of a private religious endowment created by v the Will of one Ram Kamal Mukerjee executed on the. 4th February 1845. Ram Kamal died on the 1st August 1845, and left a widow Baroda Sunderi, a daughter Kamini, and three brothers Ham Kumar Madhusudun and Chundra Mohun. His Will, which was addressed to his wife and his three brothers, authorised his three wives to adopt a son in succession, provided for various legacies, and created a religious endowment of the residue for the maintenance of the idol Gopal Jew consecrated by his mother. The four persons to whim the Will was addressed were appointed shebaits, and so far as the devolution of the office of shebait is concerned, the instrument contained the following provision: 'On your death these responsibilities shall similarly devolve on your heirs in the order of seniority, if they adhere to the ancient religion.' The...
Jawala Prasad Vs. Munna Lal Serowjee
Court: Kolkata
Decided on: Dec-14-1909
Reported in: (1910)ILR37Cal204
Lawrence H. Jenkins, C.J.1. This appeal arises out of a suit brought by the plaintiff to establish his exclusive right to a mark, with consequential relief. The plaintiff is one Munna Lall Serowjee, who carries on business in Calcutta as a ghee merchant in the name, style and firm of Munna Lall Dwarkadas. The defendants are Jawala Prasad, Mawaram and Gopal Das, who carry on business as dealers in ghee under the name and style of Jawala Prasad Mawaram and Buktear Mal Mody, who carries on business in Calcutta as a dealer and commission agent in ghee. Since the institution of this appeal one of the defendants has died, and Mr. Mitter, who appeared on his behalf, has dropped the appeal so far as he is concerned.2. It is alleged in the plaint, and established by the evidence, that for a considerable time, that is to say for twelve years, the plaintiff's ghee has been sold in Calcutta and foreign markets, tinned in canisters bearing his embossed mark, which consists of a flower on a stem wit...
Rama Pande Vs. Ramdhari Pande and anr.
Court: Kolkata
Decided on: Dec-14-1909
Reported in: 5Ind.Cas.16
1. This is an appeal in a suit for contribution in which the learned; Judge of the lower appellate Court has held that the plaintiff has not made out his case. The facts are that the head landlord sued both the plaintiff' and defendant jointly for a rental of Rs. 99 in respect of a particular holding. The present defendant did not defend that suit and the landlord got a decree and the whole amount of the decretal money was paid by the present plaintiff who is now the appellant before us. The Judge of the lower appellate Court has dismissed the suit of the plaintiff on the ground that the plaintiff did not produce any rent receipts and did not establish the fact that Rs. 81 only represented his liability to the, head landlord, and the lower appellate Court has found that the defendant No. 1 is nut liable at all. We think that the Judge of the lower appellate Court did not properly consider the effect of the rent decree obtained by the head landlord. The present defendant No. 1 did not d...
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