Kolkata Court April 1914 Judgments
Jogendra Nath Goswami Vs. Chandra Kumar Mozumdar
Court: Kolkata
Decided on: Apr-30-1914
Reported in: AIR1914Cal661,(1915)ILR42Cal28
Holmwood and Chapman, JJ.1. This second appeal arises out of a suit brought by the plaintiff for rescission of a contract and for return of half-notes to the value of 1,400 rupees; in the alternative if it be found by the Court that the defendant had transferable chukani right in the land in suit and if it be held that the plaintiff is bound according to law to purchase the said land from the defendant, then the defendant may be directed to execute a conveyance in respect of the said land containing lawful and proper terms.2. The case in the first Court was considered on six issues that were framed and it is a curious circumstance that in both the Courts below this case has been decided exclusively on a consideration of the 6th issue which carefully avoids all the real points which arise in the case. That issue is whether the defendant has got any interest in the property proposed to be sold, and if so, whether that interest is transferable. Now without framing that issue at all it is ...
Tag this Judgment!Jogendra Nath Goswami Vs. Chandra Kumar Mazumdar
Court: Kolkata
Decided on: Apr-30-1914
Reported in: 24Ind.Cas.193
1. This second appeal arises out of a suit brought by the plaintiff for rescission of a contract and for return of half notes to the value of Rs. 1,400 or, in the alternative, if it be found by the Court that the defendant had transferable chukain right in the land in suit and if it be held that the plaintiff is bound, according to law, to purchase the said land from the defendant, then the defendant may be directed to execute a conveyance in respect of the said land containing lawful and proper terms.2. The case in the first Court was considered on six issues that were framed and it is a curious circumstance that in both the Courts below this case has been decided exclusively on a consideration of the 6th issue which carefully avoids all the real points which arise in the case. That issue is whether the defendant has got any interest in the property proposed to be sold, and if so, whether that interest is transferable. Now without framing that issue at all it is obvious both upon the ...
Tag this Judgment!Protap Chandra Chakravarty Vs. Sarat Kamini Debya
Court: Kolkata
Decided on: Apr-30-1914
Reported in: AIR1914Cal817,24Ind.Cas.90
1. This appeal is by the plaintiff. He claimed as heir of one Madhab Chakravarty and to be entitled as such to 1/3rd share of certain property which he alleged was held by Madhab and his two brothers, Jadab and Tara Nath, as joint family property.2. Madhab died in 1851, leaving a widow who survived till 1903. The plaintiff's case was that his right of possession as reversionary hair began upon the death of the widow. The property in dispute consists of two plots of land which admittedly had since 1879 been in the possession of Madhab's brother, Tara Nath, till the death of that brother in 1891 and thereafter in the possession of Tara, Nath's daughter as separata property. There was no evidence when the disputed property was acquired, and admittedly there is no presumption, that it was acquired during the life-time of Madhab. In so far as it was necessary to the plaintiff's case to prove that the property was acquired in the life-time of Madhab it must he held that he failed to prove it...
Tag this Judgment!Shaikh Inatullah Daftry Vs. Shaikh Moison Ali and anr.
Court: Kolkata
Decided on: Apr-29-1914
Reported in: AIR1915Cal86,25Ind.Cas.414
Woodroffe, J.1. It has been urged on behalf of the appellant that the suit is barred under the special law of limitation of two years provided by the Tenancy Act. It is conceded, however, that if Section 22 (2) of the Bengal Tenancy Act applies then in so far as the plaintiff would not in such case be a raiyat, the special limitation would not be applicable. The contention, however, is that Section 22 (2) does not apply because this refers to a transfer of the occupancy rights and, therefore, assumes that the holding of the occupancy raiyat is capable of transfer. As regards this, however, it mast be noted that the Court has found that the plaintiff's purchase was recognised and that rent has been received from him by his Co-proprietors. The fact may be looked at in one of two ways--either such evidence of recognition may be regarded as evidence that the holding is one which can be transferred, or it is a case in which co-proprietors have validated a transfer which had previously taken...
Tag this Judgment!Nilmoni Chowdhuri Vs. Basanta Kumar Banerjee and anr.
Court: Kolkata
Decided on: Apr-29-1914
Reported in: AIR1915Cal484(1),29Ind.Cas.814
1. This is an appeal against an order of the District Judge of Murshidabad declaring a mortgage said to have been executed by an insolvent in favour of the appellant on the 13th November 1912, void against the Receiver in the insolvency proceedings and annulling the same. The learned Judge upon a consideration of the circumstances and the evidence adduced on behalf of the Receiver has come to the conclusion that the mortgage was a bogus transaction effected in bad faith and that it was not for valuable consideration.2. It is contended on behalf of the defendant that the onus is upon the Receiver to show that the transfer was not made in good faith and for valuable consideration. We are of opinion that the onus is upon the Appellant to prove that the transfer was made in good faith and for valuable consideration. The wording of the section, in our opinion, leaves no doubt as to the person on whom the onus should rest. This contention, therefore, must be overruled. It is next contended t...
Tag this Judgment!Bansi Ram Vs. Narsingha Santra
Court: Kolkata
Decided on: Apr-29-1914
Reported in: AIR1914Cal765,24Ind.Cas.805
1. The appellant obtained a decree for money against the respondent and in execution of the decree attached certain crops standing on the land belonging to the latter. An objection was taken to the attachment on the ground that the land was granted as jagir without the power of alienation and that, therefore, the crops could not be attached. The Court of first instance held that the land had been granted to the ancestors of the respondent by way of maintenance and that Court was of opinion that one-half should be left to the respondent by way of maintenance and the other half might be attached by the decree-bolder.2. On appeal, the learned District Judge held that usufruct of property was not property and could not be attached, and accordingly he disallowed the application for execution altogether.3. The decree-holder has appealed to this Court. We are of opinion that the view taken by the District Judge is wholly incorrect. The land is inalienable, but the crops belong to the responde...
Tag this Judgment!Neogendra Mohan Ray and anr. Vs. Pyari Mohan Saha and ors.
Court: Kolkata
Decided on: Apr-28-1914
Reported in: AIR1915Cal339,30Ind.Cas.420
1. This is an appeal by the plaintiffs in a suit for declaration of title to land and for ejectment of the defendants therefrom. The case for the plaintiffs is that the disputed lands were included in a revenue-paying estate owned by themselves and by their co-sharers and that the defendants held them as a tenure under the co-sharers, to whose exclusive share they had been assigned by private partition. Thereafter, on a partition of the entire estate by the Collector under the Estates Partition Act, these lands were allotted to the plaintiffs, but they were unable to obtain possession thereof, as the defendants set up their right to hold them as their tenure. The plaintiffs accordingly instituted this suit to establish their title and to eject the defendants on the ground that their tenure was operative, not upon the lands assigned to the plaintiffs, but upon those assigned to their grantors. The defendants denied the truth of the allegation of a prior private partition amongst the pro...
Tag this Judgment!Nagendra Nath Ghose and anr. Vs. Ram Bharosa Haluai
Court: Kolkata
Decided on: Apr-28-1914
Reported in: AIR1914Cal839,24Ind.Cas.68
1. Two points are raised in this second appeal. The first that the learned Subordinate Judge was wrong in holding that the plaintiff's title had been proved, inasmuch as he did not call defendant No. 5 to show that there had been actual delivery of possession, the price of the property being less than Rs. 100, and it is further urged that Ganga Das Sil, the undoubted purchaser of the holding at a revenue sale, could not after his transfer by sale to defendant No. 5 give the plaintiff a clear title by giving him a conveyance. This argument is somewhat ingenious, but it fails to convince us.2. As regards the first part of the contention, the plaintiff's sworn testimony that there was delivery of possession is quite sufficient if it is believed, and the Subordinate Judge appears to have Relieved it. It was not, therefore necessary to call defendant No. 5 : and if the Munsif had thought that the plaintiff's suit must necessarily, fail unless the defendant No. 5 was called, we think it woul...
Tag this Judgment!Haldhar Jha Vs. Syed Shah Mahammad Ashraf Alam
Court: Kolkata
Decided on: Apr-27-1914
Reported in: AIR1915Cal68,25Ind.Cas.880
Coxe, J.1. This was a suit for rent based on a kabuliat. The suit has been decreed by the Courts below and defendant appeals.2. A preliminary objection is taken that the appeal is incompetent for the reasons given in Order XLVII, Rule 4, proviso (A). It appears that this appeal was dismissed under Order XLI, Rule 11, and was revived without notice to the opposite party. It appears to me, however, that as the order reviving the appeal was passed by a Division Bench of this Court, it cannot be questioned by us.3. The kabuliat on which the suit was based has expired and it is contended on behalf of the plaintiff that the tenant held over under the kabuliat and is bound by its terms. The terms of the kabuliat are stated by the District Judge as follows: 'The land was settled with him in order that it might be planted with grafted mangoes. He was to plant the mangoes in the first year of his lease and to have them ready for bearing at the end of five years. At the outset he was to hold at a...
Tag this Judgment!Golam Mujahar Chowdhery and anr. Vs. Goloke Charan Das
Court: Kolkata
Decided on: Apr-27-1914
Reported in: AIR1915Cal78(1),25Ind.Cas.884
Woodroffe, J.1. It appears to me that the two points which have been argued in this case are clearly covered by the decision in Biroo Gorsain v. Jaimurat Koer 13 Ind. Cas. 63 : 16 C.W.N. 123 : 16 C.L.J. 174. The first point is one which arises in reference to Section 18 of the Limitation Act. There the learned Judges say that Even if it is established that the conduct of a decree-holder is fraudulent, the judgment--debtor is not entitled to obtain an extension of the time within which to make an application to the Court under Clause (2) of Rule 2 of Order XXI, because the judgment-debtor is not, by means of fraud, kept from the knowledge of his right to make the application within the meaning of Section 18 of the Limitation Act but from the exercise of his right to make the application.' The learned Judges in that case also pointed out that if there be such fraud, as was there alleged and as is alleged in this case, then it would be open to the judgment-debtors to institute a suit for ...
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