Kolkata Court December 1909 Judgments
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Hari Taran Sarkar Vs. Basanta Kumari Dasi and anr.
Court: Kolkata
Decided on: Dec-06-1909
Reported in: 5Ind.Cas.164
1. This appeal is directed against a decree of the District Judge of Murshidabad by which he dismissed an application for revocation of the probate of the Will of Sreeram Mondal, granted on the 18th August, 1905. The appellant before us who was the applicant in the Court below is admittedly the sister's son of the testator, and as a reversionary heir was entitled to be made a party to the proceedings. He was, however, not made a party. At the time of the pendency of the probate proceedings, he was moreover an infant, and it was, therefore, necessary, that he should not only be made a party but also be represented by a disinterested person as guardian ad litem. As this was not done, he is entitled to ask for revocation of the probate. This view is clearly well founded on principle and is supported by the decision of this Court in cases of Rebells v. Rebells 2 C.W.N. 100, Shoroshibala Debi v. Anandamoyee Debi 12 C.W.N. 6 and Brindaban v. Sureshwar 3 Ind. Cas. 178 : 10 C.L.J. 263. The res...
Srimati Mathuria Debya Vs. Shibdoyal Singh Hazari and ors.
Court: Kolkata
Decided on: Dec-06-1909
Reported in: 5Ind.Cas.27
1. The Subordinate, Judge of Chittagong has appointed a Receiver for the preservation of the properties in a suit brought by the plaintiff against the defendant No. 1 in possession and other defendants. For the purposes of this case the contest may be taken to be limited to be one between the plaintiff No. 1, Sivdyal Singh, the second son of the late Bhagirath Singh and the defendant No. 1, Mathuria Debi the widow of Ram Din Singh who was the eldest son of the said Bhagirath Singh and who, she alleges, was adopted by Bhagirath's elder brother, Kanta Prosad Hazari, whose estate is the subject of the litigation between the parties.2. The short point for determination is whether, to use the language of Order XL, Rule 1, Section (1) of the Code of Civil Procedure, it is 'just and convenient' to appoint a Receiver in the circumstances of the present case.3. We do not propose to compare the provisions of Section 503 of the old Code of Civil Procedure with the corresponding provisions of Orde...
Ramji Ram and anr. Vs. Salig Ram
Court: Kolkata
Decided on: Dec-06-1909
Reported in: 5Ind.Cas.96
1. This is an appeal from the order of the District Judge of Patna appointing Receivers in a suit for partition and accounts. It appears that there were two uterine brothers named.Babu Hari Ram...and...Babu Sriram. | |Baldeo Ram Rajaram | |Saligram, plaintiff Ramji Ram, defendant No. 1. | Bhagwat Prosad. | Babooa Ram, defendant No. 2.2. And the above table shows the relationship of the plaintiffs and defendants. After the death of Babu Baldeo Ram, a dispute arose between the two branches of the family as to whether they were joint or separate. By an agreement, dated the 27th September, 1907, his dispute was referred to arbitrators, Babu Gobind Chandra Mitter and Babu Gangadhar Das, Vakils of the Patna Court, with a provision for consulting an umpire and abiding by the opinion of the arbitrators with whom the umpire should agree. For the purposes of this case Mr. Sinha, then Standing Counsel, was eventually referred to as umpire as regards some minor points of difference between the arb...
Nidhiram Bandopadhya Vs. Sarbessur Biswas and ors.
Court: Kolkata
Decided on: Dec-06-1909
Reported in: 5Ind.Cas.877
1. In this appeal, the only point argued on behalf of the appellant is one purely of law. The facts are not disputed. The plaintiffs are the purchasers of a property which was sold and purchased in execution of a mortgage-decree by one Dwarka Nath in satisfaction of a mortgage-bond, dated the 22nd September 1889. The defendant No. 1 in the purchaser of properties including the above-mentioned property which were brought to sale and purchased by the prior mortgagee, the defendant No. 2, in execution of his mortgage-bond, dated the 3rd May 1884.2. The suit on the first mortgage was brought on the 28th March 1892 and the sale in execution at which the decree-holder, defendant No. 2, was the purchaser was held on the 21st March 1893. The properties were, sold by the defendant No. 2 to the defendant No. 1 on the 14th July 1893.3. The suit instituted by the plaintiff's vendor Dwarka Nath on his mortgage was not instituted till the 6th November 1894, that is to say, till after the proceedings...
Haji Shah Momtaz HussaIn and anr. Vs. Raghu Nandan Sahu and ors.
Court: Kolkata
Decided on: Dec-06-1909
Reported in: 5Ind.Cas.153
1. No one appearing to oppose this rule, it must be made absolute. The question is whether the landlord can, in one application under Section 91 of the Bengal Tenancy Act, include the lands of more than one tenant and apply for an order from the Civil Court against several tenants under that section. The learned Subordinate Judge has held that there must be a separate application in the case of each tenant. We do not think that that view is correct, nor does it seem to, be what the law actually contemplates. The mere fact that in the section the word 'tenant' is used in the singular and-not 'tenants' in the plural does not seem to us, having regard to the provisions of the General Clauses Act, to be sufficient to justify the conclusion that, under the section, it was only intended that the landlord should make the application against one tenant. Manifestly it would, be most incovenient and expensive to do so, and we are inclined to think, from the provision of Section 92 of the Bengal ...
Gobinda Proshad Misser Vs. Lukshmi Chunder Marwari and anr.
Court: Kolkata
Decided on: Dec-03-1909
Reported in: 6Ind.Cas.670
1. This appeal comes before us on receipt of a finding from the lower appellate Court. The appeal was originally heard by Mr. Justice Doss who considered that a finding on a certain point was necessary and so remanded the case to the lower appellate Court for that finding. That finding has now been submitted2. On behalf of the appellant an objection is taken to the finding of the Court of appeal below on the finding of the Court of first instance and it is contended that the finding of the Court of first instance was perfectly correct and that the finding of the Court of first appeal cannot be maintained. It is exceedingly difficult for us to understand on what grounds or materials the finding of the first appellate Court has been arrived at and the learned pleader for the respondent is unable to assist us on this point. The question which was referred to the lower appellate Court was whether the plaintiff had, as alleged by him, satisfied the mortgage decree of Kartik Chobey and, if s...
Choa Lall Mondal and anr. Vs. Maharajah Sir Rameswar Singh Bahadur
Court: Kolkata
Decided on: Dec-02-1909
Reported in: 5Ind.Cas.160
No. 1403.1. This is an appeal against an order of the Special Judge of Bhagalpore in a case instituted before the Assistant Settlement Officer of Madhepura under Section 105 of the Bengal Tenancy Act. The present respondent, the Maharaja of Durbhanga, applied under the provisions of Section 105 of the Bengal Tenancy Act to have the rents of the defendants tenancy settled. The matter went before the Assistant Settlement Officer who took evidence and the evidence appears to have been concluded in September 1905, and the 17th October 1905 seems to have been fixed for the delivery of judgment. On the 29th September a notice was issued by the Settlement Officer on the defendant stating that it was necessary for him to come for the purpose of considering certain points and directing him to appear on the 27th September 1905. On the 27th September 1905, a petition was put in on behalf of the Maharaja which purported to have been accepted by the tenant to the effect that both parties would acce...
Bibi Jarraw Kumari Saheba Vs. HanifuddIn Akanda
Court: Kolkata
Decided on: Dec-01-1909
Reported in: 4Ind.Cas.471
1. The suits were based on a sarbarakari patta in favour of the plaintiff, dated the 5th Assar 1292, (June 1885), and the plaintiff alleged that, in virtue of that pattah, a permanent intermediate tenure was created by the Zemindar between his proprietary right and the putni taluks of the tenant defendants, who were, therefore, bound to pay their rents to the plaintiff.2. The defence was a denial of the creation of any permanent interest, and that the plaintiff having failed to carry out certain conditions of the sarbarakari pattah, the Zemindar defendant annulled the same and proceeded to collect rents directly from the putnidars.3. The Court of first instance decreed the suits, and, among other things, held that the sarbarakari pattah created a contract of tenancy.4. In appeal, the Subordinate Judge of Pubna and Bogra has entered judgment for the defendants. In the opinion of the Subordinate Judge, a Zemindar cannot create a permanent tenure intermediately between his estate and a pu...
Susilabala Dasi Vs. Dinabandhu Nandi
Court: Kolkata
Decided on: Dec-01-1909
Reported in: 5Ind.Cas.70
1. The present appeal if directed against an order passed by the Subordinate Judge of Burd wan on an application made by the present opposite party, decree-holder, to have a certain putni interest sold in execution of his mortgage decree. It appears that two mortgage-bonds were executed in favour of the present opposite party by the proprietor of Estate Chuk Durga, Touzi No. 17 of the Burdwan Collectorate. These bonds were executed oil the 20th January 1892 and, 26th May 1896, respectively. On the 14th July 1897, the mortgagor created a putni of two mouzahs in the Touzi in favour of the present appellant and that putni was registered under the provisions of Section 40 of Act Xl of 1859. The respondent, the applicant under Section 244, Code of Civil Procedure, who was the mortgagee, brought a suit on his two mortgages on the 29th August 1903 making as party defendant to the suit the present appellant who was the putnidar of the two mouzahs and obtained a decree on the 20th May 1905. The...
Sheikh KapiluddIn Ahmad and ors. Vs. Sheikh KamaruddIn Ahmad and ors.
Court: Kolkata
Decided on: Dec-01-1909
Reported in: 5Ind.Cas.148
1. The only question raised in this appeal is whether the District Judge was right in allowing the decree-holders to put in an application for further execution of their decree after, in execution of a previous application, the full amount stated in thatapplication had been paid and the decree admitted to be fully satisfied and so entered by an order of the Court. The learned Judge has held that such an application can be allowed and he has relied on the case of Nilratan Khasnobish v. Ram Rutton Chatterji 5 C.W.N. 627 in support of that view. It is contended by the learned pleader for the appellant that the District Judge was Wrong in allowing the petitioners to re-open the execution after it had. once been declared to be finally closed. The learned pleader has pointed out that the application for execution which stated the amount due on the decree Was verified by the petitioners that even after it had been put in, their attention was drawn to the decretal amount as stated therein whic...
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