Kolkata Court March 1909 Judgments
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Bibi Aziran and ors. Vs. Bibi Kasiman and ors.
Court: Kolkata
Decided on: Mar-03-1909
Reported in: 4Ind.Cas.439
1. This is an appeal on behalf of the defendants in an action for recovery of money due under a usufructuary mortgage executed on the 12th February 1895. The ijara lease which was in the nature of a usufructuary mortgage was to run for a term of seven years from 1303 to 1309; it covered one-half of the property and the Government Revenue was payable, half by the mortgagor and half by the mortgagee. There was a default in the payment of Government Revenue in 1906, as a result of which the property was sold on the 6th June of that year. The plaintiffs alleged in their plaint that they were entitled under the terms of the ijara contract to recover the mortgage money with interest from the surplus sale-proceed, and if the latter proved insufficient, to recover the balance from the first defendant personally. They further alleged that the sale had been brought about by the default in payment of the Government Revenue of the mortgagors and that the latter had managed to purchase the property...
Rowland Hudson Vs. John Pierpont Morgan and ors.
Court: Kolkata
Decided on: Mar-03-1909
Reported in: 1Ind.Cas.356
1. We are invited in this appeal to discharge an order made by the Court below under Section 503 of the Code of Civil Procedure of 1882, under which one of the respondents, the Receiver appointed in a mortgage suit, is authorized to take possession of properties in the custody of the appellant who is not a party to the mortgage suit. In order to appreciate the grounds upon which the propriety of the order is questioned, it is necessary to narrate the circumstances under which it has been made.2. On the 29th June 1904, the appellant, Rowland Hudson, was, under a power-of-attorney executed by one of the respondents known as The Indian Development Company, appointed their attorney, and authorized to take possession of all property, moveable and immoveable, belonging to the latter and to superintend, manage, cultivate, carry on and conduct their estate and business in India. On the 4th October 1905, Hudson entered into an agreement with the Company, under which it was arranged that he woul...
Dhant Ram Mahtha Vs. Murli Lal Mahtha and ors.
Court: Kolkata
Decided on: Mar-03-1909
Reported in: 1Ind.Cas.366
1. The plaintiff appellant commenced the action, out of which the present appeal arises, for declaration of his title to immoveable property and to restrain the defendant from enforcing a mortgage which they claimed to hold thereupon. The suit was instituted so far back as the 18th May 1903 and up to the present time it has not been heard on the merits. The plaintiff had at one stage of the suit obtained an order for the examination of a witness upon commission. That witness was duly examined and the commissioner made his return. When the case came on for trial before the Subordinate Judge, the evidence taken on commission was on the record but as the witnesses who were to be examined in Court were not in attendance, an application was made on behalf of the plaintiff for adjournment. The Subordinate Judge made the grant of the application conditional upon the immediate payment of the costs of the defendant. The plaintiff was unable to carry out the order of the Court and the suit was d...
Managi Singh and ors. Vs. Saheb Ram Singh and ors.
Court: Kolkata
Decided on: Mar-02-1909
Reported in: 3Ind.Cas.289
1. This appeal arises out of a suit for the enforcement of a mortgage security executed by two of the appellants in favour of the plaintiffs-respondents on the 9th February 1899. In the Court of first instance, two questions were raised, namely, first whether the plaintiffs were entitled to enforce the covenant as to the payment of compound interest, and secondly, whether, the defendants were entitled to credit for a sum of Rs. 675 for which no deduction had been made in the plaint. The Subordinate Judge held, upon the first question, that the covenant for the payment of compound interest was enforceable and upon the second question, that the defendants were entitled to credit for a sum of Rs. 500 only. In this view of the matter, he made the usual mortgage decree and directed that after the date fixed in the decree for the repayment of the money, only the principal amount of the mortgage would carry simple interest at 6 per cent, per annum.2. The defendants have now appealed to this C...
Abdul Hakim Shaha and ors. Vs. Rajendra NaraIn Roy and ors.
Court: Kolkata
Decided on: Mar-02-1909
Reported in: 1Ind.Cas.312
1. The Defendants in this case had a jote under the plaintiff and others comprising 200 bighas of land. It appears that on measurement it was found that this area had increased to 320 bighas. The plaintiff brought this suit for his share of compensation for use and occupation of the excess area of 120 bighas, which was described in the second Schedule to the plaint by definite boundaries. The Munsif gave the plaintiff a decree for rent for use and occupation' for this area at the rate of 12 annas per bigha. The defendants appealed to the Subordinate Judge and that appeal was dismissed. They have now preferred this second appeal to this Court.2. It is argued on behalf of the appellants in the first place that the landlords are not entitled to sue for compensation for use and occupation without suing at the same time either for ejectment or for rent. This contention appears to us to be sound. Under Section 157 of the Bengal Tenancy Act, the plaintiff may unite a claim for rent with a sui...
SamiruddIn Munshi Vs. Benga Shaikh and ors.
Court: Kolkata
Decided on: Mar-02-1909
Reported in: 1Ind.Cas.114
1. The land in suit in this case is an occupancy holding, which is not shown to be transferable without the landlord's consent by local usage. The plaintiff is a, purchaser in execution of a money decree. At the time of his purchase the land was held by one Agar Sheikh under a usufructuary mortgage. When the term of this had expired the plaintiff took possession through Court, and thereafter according to his case obtained settlement from the landlord. He pleads that he was dispossessed by the defendants and sues for recovery of possession.2. The defence is that the original tenants relinquished the land, which was then settled with the defendants. This alleged settlement, however, was not put in issue, an omission of which no explanation has been given. The issues must doubtless have been accepted and signed by the parties: and the fact that the settlement with the defendants was not entered is not without significance. 3. The Munsiff seems to have disbelieved the story of a settlement...
Sital Rai and anr. Vs. Nandalal and ors.
Court: Kolkata
Decided on: Mar-01-1909
Reported in: 1Ind.Cas.304
1. This is an appeal on behalf of the judgment-debtors against an order for confirmation of a sale in execution of a decree for arrears of rent, which had been set aside by the Court of First Instance under Section 174 of the Bengal Tenancy Act. The circumstances under which the orders in question wore made may be thus briefly narrated: On the 8th July 1907, the respondent decree-holder in execution of a decree for arrears of rent purchased the holding of the appellant. On the 13th July, the judgment-debtors applied to have the sale set aside under Section 311, C.P.C. On the 5th August following, they applied under Section 174 of the Bengal Tenancy Act and asked for leave to make the necessary deposit. The Court directed the money to be received if the application under Section 311, C.P.C., then pending, was withdrawn. The necessary amount was deposited on the following day. On the 7th August the judgment-debtors applied for leave to withdraw the application under Section 311. On the 2...
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