Kolkata Court September 1912 Judgments

Jagadambal Ammal Vs. Ramaswamy Iyengar

Court: Kolkata

1. The questions arising in this second appeal are, no doubt, questions of law, but they have, in our opinion, all been decided correctly by the lower Appellate Court.2. With respect to the objection of the plaintiff's purchase of the shares of the defendants Nos. 4 to 7 in Original Suit No. 3 of 1883 on the ground that they wore not personally liable under the decree for the mortgage debt, those defendants were bound to raise any objection they had to the attachment of the property in execution proceedings. See Ramaswami Sastrulu v. Kameswaramma 23 M. 361 (F.B.). The lower Courts have found that all rights in the land, including the shares of defendants Nos. 2 to 7, were attached. If, as is suggested, those defendants had no notice of the attachment and sale, the proper course for them would be to get the sale set aside in execution proceedings. The 1st defendant has been found to have no right in the property. The sale having become final against the defendants Nos. 4 to 7 in Origina...

Rajendra Narayan Singh Vs. Emperor

Court: Kolkata

Reported in: 18Ind.Cas.149

Carnduff, J.1. Section 110 of the Code of Criminal Procedure of 1898 provides that, whenever a Sub-Divisional Magistrate receives information that a person within the local limits of his jurisdiction is in the habit of committing such offences as theft, robbery, extortion, breach of the peace and so forth, or is so desperate and dangerous as to render his being at large without security hazardous to the community, he may require him to show cause why he should not be ordered to execute a bond for his good behaviour; and Section 117, Sub-section (3), enacts that the fact that a person is such a habitual offender as aforesaid may be proved by evidence of general repute or otherwise.2. Under these provisions, the petitioner, who is an Honorary Magistrate of twenty years' standing and a zemindar of good family and position residing in the Supaul Sub-Division of the Bhagalpur District, was, on the 18th May last, called upon to show cause by Babu Satis Chandra Mukerjee, the Sub-Divisional Ma...

Ram Prosad Vs. Emperor

Court: Kolkata

Reported in: 17Ind.Cas.993

Carnduff, J.1. The petitioner Ram Prosad charged one Padam Kunjra with assault and (sic). The charge of theft was declared to (sic) and the petitioner was prosecuted (sic) of it under Section 211 of the Penal Code. The trial Magistrate (sic) and sentenced him to six weeks (sic) his appeal to the Sessions Judge was dismissed. He then moved this Court in revision and obtained a Rule on two grounds.2. The first ground is that 'the findings of the learned Judge are very doubtful.' As to this, it is true that the Judge his indicated doubts as to whether the petitioner was ever assaulted; but his findings regarding the alleged theft--and it is with these that we are concerned--appear to me to be the reverse of doubtful. He thinks 'there can be no doubt' as to a Munsif having been present at the time of the occurrence, whatever it was; and the fact that the Munsif heard nothing of any such 'serious affair' as the theft charged, he considers 'an extremely strong reason for holding that no thef...

Nand Kishore Sing and ors. Vs. Ram Golam Sahu and ors.

Court: Kolkata

Reported in: 18Ind.Cas.207

Ashutosh Mookerjee, J.1. This Rule raises a question of first impression and of considerable importance, namely, whether this Court is competent to make an order for stay of proceedings in execution of its decree, in view of an application by the judgment-debtor to the Judicial Committee for special leave to appeal to His Majesty in Council. The circumstances, under which the application has been made, are not disputed and may be briefly stated. The petitioners were defendants in a mortgage suit. The Court of first instance dismissed the suit on the merit. On appeal to this Court, that decree was reversed and the usual mortgage decree made on the 16th February 1911. The defendants applied to this Court for leave to appeal to His Majesty in Council. This application was refused on the 19th March 1912, on the ground that the decree did not involve a claim to a property of the value of Rs. 10,000 or upwards. The defendants applied to this Court to review this order; that application was r...

Ram Dhan Dhar Vs. Sharup Chandra Sen and ors.

Court: Kolkata

Reported in: 18Ind.Cas.479

1. The plaintiff in this case sues for a declaration that he is not the tenant of defendant No. 1 in respect of a certain taluk, that he has no right to the taluk and is not liable to pay rent for it. The facts seem to be simple. The taluk is a tenure to which the Bengal Tenancy Act applies. The plaintiff bought a share of it many years ago in execution of a decree, acting on behalf of himself and his brothers. Subsequently, a partition was effected between the brothers and the share in question fell to the share of the plaintiff's brother, Ram Das, predecessor-in-title to defendant No. 2.2. The only question we have to decide is whether the effect of this partition was to free the plaintiff from his liability for rent to the zemindar. We are of opinion that it did. As the transfer by the plaintiff was on partition, which implies a grant or exchange, Section 12 of the Bengal Tenancy Act, the operation of which is confined to transfer by sale, gift or mortgage, does not apply. Consequen...

Hazarimal Babu Vs. Abani Nath Adhurjoya and ors.

Court: Kolkata

Reported in: 18Ind.Cas.625

Ashutosh Mookeejee, J.1. This is an appeal on behalf of the first defendant, in a suit for declaration that a decree obtained by the first eight defendants against the ninth defendant on the 26th July 1904, on the basis of four mortgages, is not binding upon the plaintiffs, the first four of whom are the sons and the fifth is the wife of the mortgagor. The plaintiffs asked for a declaration, for an injunction, and for incidental reliefs. The first eight defendants resisted the claim substantially on the ground that the plaintiffs were bound to pay the debts of the ninth defendant, which were incurred for legal necessity and not for immoral purposes as falsely alleged by the plaintiffs. The defendants further contended that the properties hypothecated were the self-acquired properties of the mortgagor. The family to which the mortgagor belongs is governed by the Mitakshara School of Hindu Law, and the evidence on this point is described by the Court of first instance as complete, satisf...

Jogendra Nath Singh and ors. Vs. Secretary of State for India

Court: Kolkata

Reported in: 17Ind.Cas.921

Ashutosh Mookerjee, J.1. This appeal is directed against an order of remand in a suit under Section 104-H of the Bengal Tenancy Act. The plaintiffs instituted the suit on the ground mentioned in Sub-section 3, Clause (e) of that section, namely, that as tenants they belong to a class different from that to which they are shown in the Record of Rights as belonging. The substantial relief which they claimed, in fact it is the only relief which they can claim under Sub-section 1 of Section 104-H, is, that the amount of the rent settled at the present settlement is excessive and illegal and that fair and equitable amount of rent be settled. On behalf of the Secretary of State for India in Council, objection was taken to the frame of the suit on the ground that the under-tenants subordinate to the plaintiffs had not been joined as defendants. This objection was overruled by the primary Court; the suit was tried on the merits and decreed in favour of the plaintiffs; the decree declared that ...

Chatturbhuj Patnaik and ors. Vs. Krishna Chandra Patnaik and ors.

Court: Kolkata

Reported in: 17Ind.Cas.276

1. This is an appeal on behalf of the plaintiffs in a suit for declaration of title to a half share of the estate of one Dadhibahan Patnaik, who was the father of the first plaintiff and the grandfather of the other three plaintiffs. The defendants include the grandsons and great-grandsons of Dadhibahan, a widow of his deceased son, as also his illegitimate son. The sole question in controversy at this stage is, whether the fifth defendant, the illegitimate son, is entitled to a share of the estate left by Dadhibahan. The Subordinate Judge negatived his claim, but the District Judge has pronounced in his favour. The District Judge has found that the parties are Sudras, that the mother of the fifth defendant was brought into the house of Dadhibahan as a maid servant, that she was his permanent and continuous concubine, that she has always lived in the family, and that her son, the fifth defendant, has been brought up in the family circle, as a member of the joint family. In this view, t...

Kedar Nath Roy and ors. Vs. Amritalal Mookerjee and ors.

Court: Kolkata

Reported in: 17Ind.Cas.283

1. The subject-matter of the litigation which has culminated in this appeal is the estate of one Jogendra Chandra Roy. The plaintiffs-appellants are the great-grandsons of the great-great-grandfather of the deceased owner, while the defendant is the son of the daughter of the brother of his father. The question in controversy is, who has the preferential title as the reversionary heir. The Courts below have found in favour of the defendant, upon the authority of the Full Bench decisions in Guru Gobind v. Anand Lal 5 B.L.R. 15 : 13 W.R. (F.B.) 49. and Digumber Roy v. Moti Lal 9 C. 563 : 12 C.L.R. 204. It is not disputed that if these cases were correctly decided, the claim of the plaintiffs must be negatived. But it has been argued that both the Full Benches took an erroneous view of the fundamental principles which underlie the Dayabhaga, and, consequently, arrived at incorrect conclusions. On this basis, Sastri Golap Chandra Sarkar has addressed to us an able and learned argument to i...

C.H. Crowdy Vs. L. O'Reilly

Court: Kolkata

Reported in: 17Ind.Cas.966

1. The plaintiff-respondent, as the owner of the Masnadpur Indigo Factory, commenced this action for enforcement of a right of way against the defendant appellant, the owner of an adjoining property known as the Hajipur Bungalow. The Court of first instance dismissed the suit; upon appeal, that' decree has been reversed by the District Judge. The antecedent history of the dominant and servient tenements may be briefly stated. The Masnadpur Indigo Factory was built between the years 1870 and 1879. In 1891, one Meares purchased land towards the north of the factory, and in 1895 he built thereon the Hajipur Bungalow. In the latter year, one Holloway purchased the factory, and on the 30th April 1897, he also purchased the Hajipur Bungalow from the widow of Meares. The position at that time was that Holloway became the owner of both the properties. On the 31st January 1901, Holloway sold both the factory and the bungalow to C.H. Crowdy and his brother H.E. Crowdy. The District Judge has fou...