Kolkata Court December 1916 Judgments
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Rajeswari Dasi and anr. Vs. Benoda Sundari Dasi and anr.
Court: Kolkata
Decided on: Dec-21-1916
Reported in: 44Ind.Cas.533
1. This is a suit upon a mortgage bond Exhibit I said to have been executed by Bhim Karmakar, the deceased father of defendant No. 1, in favour of Jadumandal the husband of plaintiff No. 1, on the 9th August 1891. On the 18th of March 1898 defendant No. 1 executed a kobala in respect of some lands in favour of Jadumandal and in this document marked Exhibit II made an admission of the earlier mortgage of the 9th August 1891. On the 21st March 1898 one Basant purchased property No. 1 in execution of a money-decree against defendant No 1 and sold the same to defendant No. 2 on the 12th August 1898. The suit giving rise to this appeal was brought on the 16th March 1910 and would be barred by limitation unless the acknowledgment by defendant No 1 in Exhibit If can save it. Then arises the question whether Exhibit I has been proved in accordance with law. All the attesting witnesses including the scribe are dead. One witness Hazarilal has proved the handwriting of the attesting witnesses: he...
Panchanon Majumdar Vs. Binoy Krishna Banerjee
Court: Kolkata
Decided on: Dec-21-1916
Reported in: 44Ind.Cas.538
D. Chatterjee, J.1. A Hindu widow before making an adoption made an agreement with the natural father of her prospective adopted son that she was to receive a certain amount for her maintenance and a certain amount for the marriage of her relations: and Rs. 25 per mensem each was to be paid to her brother's son and grandson during their lifetime. These amounts were regularly paid so long as the widow was alive but on her death payment was stopped by the guardian appointed by the District Judge. The present appeal arises out of a suit by the brother's grandson of the widow for enforcing the contract against the adopted son. Both the Courts below have dismissed the suit. Hence this appeal.2. The plaintiff's case was that the allowance was sanctioned by the Will of the defendant's adoptive father--that he and his uncle were receiving their allowances from before the adoption and the giving of the allowance was the condition on which the adoption was made and would not have been made but f...
Sant Prasad Singh Vs. Babu Hari Singh and ors.
Court: Kolkata
Decided on: Dec-20-1916
Reported in: 38Ind.Cas.161
Lancelot Sanderson, C.J.1. In this case I am of opinion that this Rule should be made absolute.2. The suit was brought by the plaintiff to recover his share of certain property. It appears that the plaintiff's father Tipan Pershad and a man called Hari Singh had bought an estate for about Rs. 19,000 odd. The sale having been set aside, these two became entitled to get the money back, and it was Tipan Pershad who through the hand of his servant drew out the purchase-money which had been deposited; and, instead of handing over the share which belonged to Hari Singh, he converted the whole of it to his own use. Hari Singh then instituted a suit and obtained a decree against Tipan Pershad, and in execution of that decree purchased the property in question. Consequently, the plaintiff brought the present action against Hari Singh.3. The first Court and the second Court decreed the suit on the ground that the act of Tipan Pershad in appropriating the money to his own use was a criminal act, ...
Upendra Nath Ghose and ors. Vs. Dwarka Nath Biswas and anr.
Court: Kolkata
Decided on: Dec-18-1916
Reported in: 55Ind.Cas.790
1. Defendants Nos. 1 and 3, who purchased the tenure in suit from defendant No. 4, appear to have paid rent for about 37 years and the rent was accepted from them. Plaintiff, therefore, is not entitled to obtain khas possession of the tenure as his right to do so is barred by limitation. That being so, the plaintiff cannot ignore the right of defendants Nos. 1 and 3 who were entered in the Record of Rights as tenants. We do not see, however, why the plaintiff should not get a decree for rent at the enhanced rate of Rs. 90 odd. It is true there is a presumption under Section 50 (2) Of the Bengal Tenancy Act arising from the payment of rent at the same rate for more than twenty years; but the plaintiff has produced a Kabuliyat of the year 1840, executed by the predecessor in interest of the defendant No. 4--the vendor of defendants Nos. 1 and 3. There is an express stipulation in the Kabuliyat that the tenants would pay enhanced rent according to the Pargana rate. The Kabuliyat may be co...
Swarnamoyi Debi Vs. Sheikh Adu
Court: Kolkata
Decided on: Dec-18-1916
Reported in: 39Ind.Cas.119
1. We are of opinion that the Court of Appeal below is right in holding that the occupancy holding which is found to be non transferable by custom of usage, could not be sold in execution of a money-decree, as the tenants objected to the sale although the decree-holler obtained the consent of the landlord. The same view was taken from Narayani v. Nabin Chandra Ghowdhari 36 Ind. Cas. 803 ; 21 C.W.N. 400 ; 25 C.L.J. 351 and Ram Sundar Karmokar v. Lochan 38 Ind. Cas. 942. We are further of opinion that the judgment-debtor raised objections to the sale, and that the passage relied upon in the petition of objection cannot be construed to mean that he gave his consent. The appeal is accordingly dismissed with costs, one gold mohur....
Upendra Nath Ghose and ors. Vs. Dwarkanath Biswas and anr.
Court: Kolkata
Decided on: Dec-18-1916
Reported in: 44Ind.Cas.593
1. Defendants Nos. 1 and 3, who purchased the tenure in suit from defendant No. 4, appear to have paid rent for about 37 years and the rent was accepted from them. Plaintiff, therefore, is not entitled to obtain khas possession of the tenure, as his right to do so is barred by limitation. That being so, the plaintiff cannot ignore the right of defendants Nos. 1 and 3 who were entered in the Record of Rights as tenants. We do not see, however, why the plaintiff should not get a decree for rent at the enhanced rate of Rs. 90 odd. It is true there is a presumption under Section 50(2) of the Bengal Tenancy Act arising from the payment of rent at the same rate for more than twenty years: but the plaintiff has produced a kabuliyat of the year 1840 executed by the predecessor-in-interest of the defendant No. 4, the vendor of defendants Nos. 1 and 3. There is an express stipulation in the kabuliat that the tenants would pay enhanced rent according to the Pargana rate. The kabuliyat may be cons...
Sudarshan Das Vs. Biraja Sundari Dasi and ors.
Court: Kolkata
Decided on: Dec-15-1916
Reported in: 38Ind.Cas.338
1. The plaintiff-appellant brought the suit out of which this appeal arises for assessment of rent of certain specific portions of buildings against the persons in possession of the same, and also for recovery of damages for the use and occupation thereof in respect of the period prior to the suit. It appears that the plaintiff's vendor purchased 2/3rd share of certain property at sales held in execution of mortgage decrees. Although he purchased an undivided 2/3rd share, he obtained symbolical possession of certain specified portions of the property which were in the exclusive possession of his judgment-debtors under some arrangement between them and their co-sharers, which took place more than twenty years before the sale. The plaintiff the purchased the right of the execution purchaser and brought the present suit against the mortgagor, the principal defendant, who was in possession of the particular portions of the property. The Court below held that the plaintiff had purchased onl...
Raja Srinath Roy and ors. Vs. Probhat Chandra Chatterjee and ors.
Court: Kolkata
Decided on: Dec-15-1916
Reported in: 38Ind.Cas.333
Teunon, J.1. This Rule is directed against an order made by the Deputy Magistrate of Faridpur declaring the 1st party to certain proceedings under Section 145 of the Code of Criminal Procedure to be entitled to possession of the land in disputed forbidding disturbance of such possession until their eviction in due course of law.2. For the disposal of the Rule it is, in my opinion, sufficient to say that on his own finding the Deputy Magistrate was not competent to make the order complained of.3. The order under Section 145, Sub-clause (1), was made on the 23rd of June 1916, and on the evidence adduced the Deputy Magistrate finds that the petitioners, who were the 2nd party to the proceedings, took possession and the 1st party were dispossessed on the 5th of April 1916, that is, two months and eighteen days before the initiation of the proceedings.4. It next appears that on the 8th of April, i.e., three days after the dispossession, the Sub-Divisional Officer of Faridpur made an order u...
In Re: Sital Prosad and ors.
Court: Kolkata
Decided on: Dec-14-1916
Reported in: 41Ind.Cas.288
Lancelot Sanderson, C.J.1. This is an appeal by Badrinarain Agarwalla, a creditor of the insolvents, from the judgment of Greaves, J., whereby he held that three mortgages, which the appellant alleged were void and inoperative, were valid mortgages.2. An order for the sale of the mortgaged property had been obtained by the mortgagees under the provisions of the Presidency Towns Insolvency Act; the appellant succeeded in obtaining an order for stay of the sale from Chaudhuri, J., who directed that the matter of the mortgages should be investigated, i. e., for the purpose of ascertaining whether the three mortgages were valid mortgages.3. The facts are set out in the judgment of Greaves, J:---'There wore four brothers, Raghubir, Raj Coomar Lall, Ram Smadar Lall and Sital Prosad who were members of a Mitakshara family, and they on 10th January 1907 executed a power--of--attorney in favour of Raghubir. By the power these persons jointly nominated, constituted and appointed Raghubir their a...
Rasmut Ali and ors. Vs. Asab Ali and ors.
Court: Kolkata
Decided on: Dec-14-1916
Reported in: 38Ind.Cas.140
1. This is an appeal from a decision of the learned District Judge of Tipperah, dated the 28th May 1914, reversing the decision of the Subordinate Judge of Comillah. Certain damages having been awarded against the plaintiffs and the defendants as wrongdoers or joint tortfeasors in a former suit, the amount was wholly satisfied by the plaintiffs. They now brought the present suit for contribution against the defendants. The Court of first instance decreed the suit. On appeal by some of the defendants who appear as respondents in this Court, the learned District Judge set aside the decree of the first Court, holding that when the civil injury for which the plaintiffs and the defendants were jointly held liable was committed, neither the plaintiffs nor the defendants believed that they had bona fide claims of right to act in the manner that they did act, which gave rise to the claims for damages in that former suit. In that view of the case, the learned Judge was clearly right in the conc...
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