Kolkata Court December 1911 Judgments
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Erfan Mandal Vs. SamiruddIn Mandal and ors.
Court: Kolkata
Decided on: Dec-19-1911
Reported in: 15Ind.Cas.552
1. The substantial question of law raised in this appeal is whether the suit is barret by reason of the proviso to Section 42 of the Specific Relief Act, which lays down that no Court shall make any declaration in a declaratory suit where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. The plaintiffs' commenced this suit for declaration that the first defendant had not been properly appointed mutwalli of the properties in suit. Their case was that in 1888 a deed of wakfnamah had been executed by the owners of the property and that pursuant thereto in 1906 a deed was executed by which the first defendant was appointed mutwalli. The plaintiff set out facts which, if true, go to show that the defendant has taken possession of the property and has dealt with it on the footing that he has been properly appointed its mutwalli. The plaintiffs put their case in the alternative. In the first place, they ask for a declaration that the wakfnamah ...
Lalan Mallik and ors. Vs. Emperor
Court: Kolkata
Decided on: Dec-19-1911
Reported in: 15Ind.Cas.987
Harington, J.1. In this case, the nine appellants have been convicted under Sections 395 and 396 of the Indian Penal Code, and have been sentenced to ten years' transportation each. The Assessors agreed that Lallan and Sajani were guilty, but, while acquitting the remaining seven prisoners, they expressed the opinion that the deposition of the approver was true, but were doubtful as to whether he had given the names of the dacoits correctly. They also expressed an opinion that Lallan was caught red-handed, and that the confession which he made on the spot was made to a private person and was not obtained by force.2. The learned Vakil, who appears for the appellants, has taken us at very great length through the evidence of upwards of fifty witnesses who were heard in the course of the case. His object in doing so is not clear because it is conceded by the learned Vakil that it has been established, without any shadow of doubt, that the occurrence took place, and that the only question ...
Ramjas Agarwalla Vs. India General Navigation and Ry. Co. Ld.
Court: Kolkata
Decided on: Dec-18-1911
Reported in: 14Ind.Cas.627
Lawrence Jenkins, C.J.1. In our opinion the Rule in this case should be made absolute on the short ground that the lower Appellate Court decided the suit on a question of fact which was never in issue between the parties in the Court of first instance, through a misapprehension as to what the law required. The Subordinate Judge in the lower Appellate Court was right in his view that Section 10 of the Carriers Act of 1865, which was enacted in Act X of 1899, applied to the circumstances of this case. The Munsif, however, did not take that view, nor does it seem to have been presented to him by the parties; and it is clear from the terms of his judgment and the manner in which he formulates the points for determination that this section (Section 10) was not present to his mind, Now, Section 10 raises a question of fact: and, had proper issues been settled under Order XIV, the issue appropriate in the light of that section would have been framed and tried. It was not done, and so the posi...
Rajendra NaraIn Saha Vs. Ashutosh Sanyal and ors.
Court: Kolkata
Decided on: Dec-18-1911
Reported in: 13Ind.Cas.194
Carnduff, J.1. These two appeals arise out of an action in ejectment brought by certain patnidars in respect of seven plots of land alleged to be situate in their putni. For present purposes the defendants may be said to be, first, the Sanyals, who are admittedly the holders of a permanent tenure in the patni described in the judgments of the Courts below as a jama held in kaimi raiyati or kaimi jote right, and, secondly, the actual cultivators, who have been inducted by the Sanyals and are in occupation of some of the plots as the latters' tenants. Both the lower Courts have dismissed the suit as regards plots 3, 4, part of 5, and 7. As regards the remainder, the appellate decree is to the effect, that, as the Sanyals havefailed to prove that these lands are included in their under-tenure, the suit should be decreed against them; but that the actual cultivators are entitled to remain in occupation as tenants of the plaintiffs, and the suit should be dismissed in so far as they are con...
Ensar Ali and ors. Vs. Yakub Ali
Court: Kolkata
Decided on: Dec-18-1911
Reported in: 13Ind.Cas.311
Carnduff, J.1. This appeal arises out of a suit brought by the plaintiff-respondent under Section 106 of the Bengal Tenancy Act, 1885, for the correction of an entry in a record of right relating to a miras karsa holding. The holding was entered in the record as belonging to one Moharuddi and the defendants, half and half. Moharuddi has died and Yakub claims to be, as his second cousin, entitled to 4-annas of the holding. He accordingly brought this suit in order to have his name entered in respect of 4 annas. Both the Courts below have concurred in altering the record accordingly.2. The defendants now appeal, and on their behalf, three-contentions have been pressed before me, first, it is said that the onus has been wrongly placed on the defendants, whereas it ought to have been placed on the plaintiffs, secondly, it is contended that the lower Courts have not found what the precise share of Yakub under the Mahatnmadan law is, and, therefore, they had no right to alter the record by e...
Gangadhar Das and ors. Vs. Bhikari Charan Das and ors.
Court: Kolkata
Decided on: Dec-14-1911
Reported in: 13Ind.Cas.403
Coxe, J.1. This was a suit to set aside a revenue sale. The sale took place on the 9th April 1906, and the date on which the proclamation is said to have been affixed in the Collectorate was recorded as the 6th April. The Munsif considered, that this was a clerical mistake; but the lower Appellate Court took a different view, and found that the defendant had failed to prove that the notice was affixed in the Collectorate one month before the date of the sale. He held that this was an irregularity, and he also held that the price realised at the sale was inadequate. Bat he was unable to find that there was any evidence to connect the inadequacy of the price with the irregularity and accordingly dismissed the suit.2. The plaintiff appeals to this Court.3. The first point taken on behalf of the plaintiff is, that the omission to post the proclamation of sale in the Collectorate one month before the date of sale (a point on which we are concluded by the decision of the lower Appellate Cour...
Ramdeo Prosad Singh Vs. Gopi Koeri and ors.
Court: Kolkata
Decided on: Dec-14-1911
Reported in: 13Ind.Cas.349
1. In this case the respondent obtained a decree against Ajodhya and Damodar, the grandfather and father respectively of the appellant, for recovery of possession of land, with mesne profits, costs and interest. The mesne profits were subsequently ascertained and decreed in 1002 against Damodar and Ajodhya. At that time all three members of the family were in existence. The respondent took out execution of the decree; and the case ultimately came up to this Court in appeal. The Court below had excluded certain evidence; and the case was remanded in order that an opportunity might be given to the appellant to show that the debt with respect to which execution was sought was not one for which he was liable. On remand the Court below has come to the decision that the appellant is liable; and this finding has been returned to this Court.2. Two points have been taken on behalf of the appellant. The first is that, in any case, the decree-holder is not entitled to interest; and reference has ...
Abdul Ghani Vs. Azizul Huq
Court: Kolkata
Decided on: Dec-13-1911
Reported in: (1912)ILR39Cal409
Holmwood, J.1. I have had the advantage of reading the judgment which is about to be delivered by my learned brother, and I entirely agree with him that the marriage of a Mahomedan man and woman is rendered ipso facto void by the apostacy of the, former, though there are certain methods, as pointed out by my learned brother, by which the marriage tie may be renewed.2. But what I wish to lay stress upon is that whatever view be taken of the uncertain status of the parties during the period of iddut, and however illegal and void under Mahomedan law the second marriage of the woman during' the period of iddut may be, there is no foundation for any charge under Section 494 of the Indian Penal Code against her. Her second marriage is not void by reason of its taking place during the life of a prior husband, but by reason of a special doctrine of the Mahomedan law of iddut with which the Indian Penal Code has nothing to do.3. The parties in this case appear to have acted in good faith on wha...
Abdul Gani and ors. Vs. Azizul Haq
Court: Kolkata
Decided on: Dec-13-1911
Reported in: 14Ind.Cas.641
Holmwood, J.1. I have bad the advantage of reading the judgment which is about to be delivered by my learned brother, and I entirely agree with him that the marriage of a Muhammadan man and woman is rendered ipso facto void by the apostacy of the former; though there are certain methods, as pointed out by my learned brother, by which the marriage tie may be renewed.2. But what I wish to lay stress upon is that whatever view be taken of the uncertain status of the parties during the period of Iddut and however illegal and void under Muhammadan Law the second marriage of the woman during the period of Iddut may be, there is no foundation for any charge under Section 494, Indian Penal Code, against her. Her second marriage is not void by reason of its taking place during the life of a prior husband but by reason of a special doctrine of the Muhammadan Law of Iddut with which the Indian Penal Code has nothing to do.3. The parties in this case appear to have acted in good faith on what they...
Sham Lal Chatterjee Vs. Hazari Mal Babu
Court: Kolkata
Decided on: Dec-13-1911
Reported in: 13Ind.Cas.326
Coxe, J.1. The opposite party in this case is a decree-holder, who obtained an instalment-decree against the petitioners. Instalments were to be paid twice a year, from 1314 to 1325; and there was also a stipulation that if a certain estate, called Lot Chandrabati, was sold out of Court at an adequate price, the sale-proceeds should' be paid to the decree-holder and credited against the decretal amount.2. It is not disputed that the two instalments due in 1316 were not paid in full. It has been faintly argued that this did not constitute default, because the terms of the agreement were that the decree-holder should not be entitled to execution, unless these two instalments remained wholly unpaid. But, on referring to the terms of the contract, it seems to us perfectly clear that the meaning of the parties was that if these two instalments were not paid in full, that is to say, if any portion of these two instalments remained unpaid, the decree-holder should be entitled to execute his d...
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