Kolkata Court March 1917 Judgments
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Sriram Chandra Naik and ors. Vs. Hridoy Nath Gupta and ors.
Court: Kolkata
Decided on: Mar-13-1917
Reported in: 51Ind.Cas.409
1. This is an appeal under Clause 15 of the Letters Patent from a judgment of Mr. Justice Newbould. A preliminary objection has been taken that the appeal should not be heard on the merits, as no decree of dismissal of the suit can be made by this Court in the appeal as at present constituted. We are of opinion that this objection must prevail.2. Eight persons as plaintiffs instituted this suit for declaration that the subject-matter of the litigation was dsbutter property dedicated to an idol Sri Sri Issur Raghunath Jin Bishnu Thakur and that there had been dealings with the property by the shebaits in a manner not justified by its character as debutter property. The plaintiffs accordingly prayed for a declaration of the true character of the property and for a decree for recovery of possession from the first defendant who had acquired no valid title to the property and was in unlawful possession. The Court of first instance dismissed the suit. On appeal, a joint decree was made in fa...
Prosunno Kumar Baidya Vs. Ram Chandra De and anr.
Court: Kolkata
Decided on: Mar-13-1917
Reported in: 47Ind.Cas.677
1. This is an appeal under Clause 15 of the Letters Patent from a judgment of Mr. Justice Newbould. The appeal was dismissed by him under Section 3 of the Indian Limitation Act, on the ground that it had been preferred after the period of limitation prescribed therefor and that sufficient ground had not been made out for extension of time under Section 5.2. A preliminary objection has been taken that the appeal is incompetent as the decree made by Mr. Justice Newbould is not a 'judgment' within the meaning of Clause 15 of the Letters Patent. In support of this view reliance has been placed upon the decision in GobindaLal Das v. Shiba Das Chatterjee 33 C. 1323 : 10 C.W.N. 986 : 3 C.L.J. 545. On behalf of the appellant that case has been distinguished, on the ground that there the Court had to deal with an application for registration of the appeal after expiry of the period of limitation and that the effect of the order, was that the appeal was never registered, while in this ease the a...
Kali Nath Chakravarty and ors. Vs. Ambica Prashad Das and ors.
Court: Kolkata
Decided on: Mar-12-1917
Reported in: 41Ind.Cas.399
Beachcroft, J.1. This is an appeal against a decision of the Additional District Judge of Alipur in certain insolvency proceedings, by which he refused to annul two transfers of property. One Mani Lal Sahawas adjudicated an insolvent on a petition failed on the 18th February 1914 by one of his creditors. In the course of the proceedings the question of annulment of three mortgages came before the Court. These were 29 Ind. Cas. 128 : 21 C. L. J. 167 : 19 C. W. N. 157, in favour of one Ambica Prasad Bass for Rs. 10,000 dated 15th July 1913, 32 Ind. Cas. 313 : 43 C. 521 : 30 M. L. J. 116 : 3 L. W. 207 : 20 C. W. N. 393 : 14 A. L. J. 198 : (1916) 1 M. W. N. 198 : 19 M. L. T. 203 : 23 C. L. J. 406 : 18 Bom. L. R. 378 : 43 C. 521 (P. C.), in favour of one Chandi Charan Saha for Rs. 10,000 dated 14th November 1913 and 33 Ind. Cas. 548 : 43 C. 640 : 20 C. W. N. 420, in favour of one Pratap Chandra Ganguli for Rs. 16,000 dated 15th December 1913. The first two came up for consideration under Se...
Surendra Nath Goswamy and ors. Vs. Rajani Kanta Das
Court: Kolkata
Decided on: Mar-12-1917
Reported in: 41Ind.Cas.446
Fletcher, J.1. This Rule must be discharged. The objection or claim was preferred admittedly under Order XXI, Rule 58 of the Code. The Judge has found as a fact that the claim or objection was designedly or unnecessarily delayed; and the proviso to Rule 58 prohibits the Court from enquiring into the claim or objection when the claim or objection was designedly or unnecessarily delayed. It is said that there are decisions of this Court to the effect that that proviso can have no application in certain particular cases, where the Court has become possessed of the money in execution by what has been called the usurpation of authority. I do not agree, No decision can cut down the express and clear words used by the Legislature, that where the Court considers that the claim or objection was designedly or unnecessarily delayed no investigation shall be made. That was the preliminary issue for the Court to try as to whether there had been a delay of the nature mentioned in the proviso; and, d...
Ghulam Muhammad Khan Vs. Nur Khan and ors.
Court: Kolkata
Decided on: Mar-12-1917
Reported in: 41Ind.Cas.897
1. The annexed pedigreetable will assist in the elucidation of this case. Azmat was a resident and a proprietor in the village of Chakrala, and his sons founded the village of Thamewali. Amanat as the elder son was vested with, or assumed the pag and was regarded as Sardar or the head of the family in so far as Thamewali (at least) was concerned. He wm succeeded in the Sardarship by his brother Kamal owing to the fact that he died without issue. Kamal had five sons and his eldest son Suleman succeeded him as Sardar. Suleman died, or renounced this world (see page 165, paper-book A, Appeal No. 58/85 of 1914) without leaving any male issue surviving and was succeeded by Allah Yar. This Allah Yar had three wives and sons by all of them. He was in due course succeeded in the sardari by Barkhurdar, his eldest son. Barkhurdar was murdered in Lahore, and of his sons Yaian alone survived him. He was a mere child at the time of his father's death and his uncle Budhe Khan was vested with, or usu...
Abdul Gaffur Molla and ors. Vs. Golam Rahaman Naskar and ors.
Court: Kolkata
Decided on: Mar-12-1917
Reported in: 39Ind.Cas.460
Fletcher, J.1. This is an appeal by the plaintiffs from a decision of the learned Additional District Judge of the 24-Pergannahs, dated the 21st April 1914, reversing the decision of the Munsif of the first Court at Baruipore. The suit was brought by the plaintiffs to recover possession of 4 bighas 9 cottas of land, part of a holding of 21 bighas 21 cottas. The first Court decreed the plaintiffs' suit. On appeal to the learned Additional District Judge, the decision of the first Court has been reversed and the plaintiffs have appealed to this Court. The plaintiffs claimed title under an usufructuary mortgage or one by way of conditional sale in respect of a portion of this holding of 21 bighas odd, and they alleged that they had been dispossessed by the principal defendant who had purchased the holding in execution of a rent-decree and that no notice to annul the plaintiffs' encumbrance had been given under the provisions of Section 167 of the Bengal Tenancy Act. The first Court held t...
Romesh Chandra Das and anr. Vs. Srimati Kamini Sundary Dasya and ors.
Court: Kolkata
Decided on: Mar-12-1917
Reported in: 39Ind.Cas.525
Richardson, J.1. This appeal arises out of an order of the learned District Judge of Dacca, dated the 13th September 1915. By that order the learned District Judge dismissed an application for a succession certificate in respect of certain promissory notes, on the ground that there was a Will relating to those notes and that the provisions of Clause (4), Section 1, of the Succession Certificate Act applied to the case.2. Mr. Bepin Behari Ghose has appeared for the appellant and contended that in the circumstances the clause referred to has not the effect of preventing issue of a succession certificate.3. The Will in question is dated 22nd January 1912. The testator was a gentleman of considerable wealth and the Will relates only to a portion of the property which he left. By paragraph 5 of the Will, he gave his widow certain rights in respect of some of the promissory notes in question. By paragraph 12 he gave similar rights in respect of other of the promissory notes to his widowed da...
Lal Gopal Dutt Chowdhury Vs. Biswa Nath Roy and anr.
Court: Kolkata
Decided on: Mar-12-1917
Reported in: 39Ind.Cas.647
Fletcher, J.1. This is an appeal by the plaintiff against a judgment of the learned District Judge of Khulna, dated the 9th April 1914, affirming the decision of the Subordinate Judge of the same place. The plaintiff sued to recover the rent due to him on the basis of a kabuliyat for a four-annas share of a jalkar. The contract of tenancy provided that interest was to run on the rent in arrear at the rate of 25 per cent, per mensem, that is, 300 per cent, per annum. The plaintiff likes interest at 300 per cent, per annum and, therefore, the learned Judges in the Courts below having deprived him of that rate, he has appealed to this Court. The law, of course, on this matter is not settled with reference to the plaintiff's likes or dislikes but is contained in the Indian Contract Act, and there is nothing to prevent a man of full age find of ordinary understanding from contracting, if he is at arm's length, to pay interest at a higher rate. But there are provisions in the law such as Sec...
Gregory Carapiet Balthazar and anr. Vs. Samuel Balthazar and ors.
Court: Kolkata
Decided on: Mar-12-1917
Reported in: 42Ind.Cas.285
1. This is an Originating Summons for the construction of a clause in the Will of Carapiet Balthazar father of the plaintiffs. The defendants are the surviving executors and trustees of that Will. By that Will, dated 9th December 1900, the testator directed (inter alia) as follows:I devise all my freehold property known as 'Balthazar's Buildings' situate in Merchant Street and Shafraz Road in Rangoon aforesaid unto and to the use of my trustees upon trust to pay the rents, income and profits thereof to my said two sons' (meaning thereby the plaintiffs) 'during their respective lives in equal shares as tenants-in-common, and subject thereto shall stand possessed of the said property known as Balthazar's Buildings as to one equal undivided half part or share thereof upon trust for such person or persons for such purposes and in such manner as my son the said Gregory Carapiet Balthazar shall by Will or codicil appoint, and in default of and subject to any such appointment upon 'trust for ...
Abdul Karim Abu Ahmed Khan Ghaznavi Vs. the Allahabad Bank, Ltd.
Court: Kolkata
Decided on: Mar-11-1917
Reported in: 41Ind.Cas.598
Sanderson, C.J.1. Think the reference may conveniently be considered in two parts.2. First---whether the powers of the Appellate Court with regard to a remand under Section 107 of the Code of Civil Procedure of 1908 is restricted to the case specified in Order XLI, Rule 23, and 2nd---whether it is competent to the Appellate Court to remand a case in which in the opinion of the Court there has been no proper trial.3. As regards the first part:4. In order to ascertain the intention of the Legislature on this point, I think it is useful to examine the state of the law at the time the 1908 Code was passed.5. Under the Civil Procedure Code of 1882 the Section which corresponded in effect to Order XLI, Rule 23, was 562. That section, however, was followed by 564 which provided that The Appellate Court shall not remand a case for a second decision except as provided in Section 562.'6. Section 566 of the 1882 Code corresponded to Order XLI, Rule 25, of the present Code.7. It had been held that...
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