Kolkata Court August 1917 Judgments
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Bharat Ramanuj Das Mahanta Vs. Ishan Chandra Haldar and ors.
Court: Kolkata
Decided on: Aug-24-1917
Reported in: 43Ind.Cas.212
1. This is an appeal by the plaintiff in a suit for redemption of an usufruatuary mortgage, dated the 11th July 1881. On the 28th August 1884, the enquiry of redemption was sold in execution of a money-decree against the mortgagor, and was purchased by the mortagagee. On the 11th May 1907, the plaintiff took a conveyance of the equity of redemption from the heirs of the mortgagor, and on the 19th May 1913, instituted this suit for recovery of possession upon redemption. The Courts below have dismissed the suit, on the ground that the plaintiff, by his purchase, has not acquired title to the equity of redemption and cannot claim to redeem the mortgage. The plaintiff-appellant has controverted this view and has argued that the mortgagee, by his purchase of the equity of redemption on the 20th August 1884, did not acquire an irredeemable title but became a trustee for the benefit of the mortgagor and might be called upon to submit to redemption. In support of this view, reliance has been ...
Umesh Chandra Dutta, Minor by His Father and Next Friend Jugal Kishore ...
Court: Kolkata
Decided on: Aug-24-1917
Reported in: 43Ind.Cas.779
Fletcher, J.1. The only question arising for decision in this case is whether a portion of a non-transferable occupancy holding can be devised by Will.2. The facts are extremely simple. The holding in question belonged to three brothers, Ram Jiban Das. Jugal Kishore Das and Lob Narain Das. Lob Narain died on the 23rd Baisakh 1314, having by his Will, dated the 30th Baisakh 1928 (which was duly admitted to probate), bequeathed his share to his widow, Jugat Tara.3. The widow subsequently made a gift of the property sued for to the plaintiff. The defendants claim through the other brothers. So the claimants to the property are on the one hand a person claiming through the Will of Lob Narain and on the other hand persons claiming through his heirs. Now it was decided in this Court in the case of Arnulya Ratan Sarkar v. Tanimi Nath Dey 27 Ind. Cas. 235 : 18 C.W.N. 1290 : 21 C.L.J. 187 : 42 C. 254 that a non-transferable occupancy holding is not capable of being devised by Will. This case wa...
Pitambar Dhal and anr. Vs. Baidya Nath Sit and ors.
Court: Kolkata
Decided on: Aug-24-1917
Reported in: 43Ind.Cas.374
1. The preliminary objection, taken to the competency of this appeal, is well-founded and must prevail. The appellants instituted a suit in forma pauperis. On the day fixed for trial when the suit was called on, neither the plaintiffs nor the defendants entered appearance. The result was that the suit was dismissed under Rule 3 of Order IX of the Code, which provides that where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed. The plaintiffs thereupon applied for an order to set the dismissal aside. This application was made under Order IX, Rule 4, and was dismissed on the merits. Against the order of dismissal the present appeal has been preferred. Order XLIII, Rule 1, Clause (c), shows that an appeal lies against an order under Rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit. Rule 9 applies to cases under Rule 8, that is, cases where the defenda...
Aslam Mea and ors. Vs. Emperor
Court: Kolkata
Decided on: Aug-24-1917
Reported in: 46Ind.Cas.528
1. In this case the opposite party, on whom the Rule was served, does not appear to show cause. In his explanation the Magistrate, before whom the case was tried, states that he does not think that the compromise petition could be accepted at such a late stage, when the judgment was actually being written, but a case may be compromised under Section 345, Criminal Procedure Code, at any time before the sentence is pronounced. We accordingly make the Rule absolute and set aside the conviction and the sentence passed on the petitioners. The fines, if paid will be refunded....
Padma Lochan Patar Vs. Giris Chandra Kil
Court: Kolkata
Decided on: Aug-24-1917
Reported in: 45Ind.Cas.241
1. This appeal arises out of a suit for recovery of Rs. 3,954-4-0. The Court of first instance gave the plaintiff a decree fof Rs. 976-6-0. Upon appeal, the District Judge has modified that decree, and we have before us an appeal by the defendant as also a memorandum of cross-objection by the plaintiff. The appeal and the cross-objection raise two questions upon which the Courts below have taken divergent views. The first question relates to a sum of Rs. 168-8-6; with regard to this, the defendant contends that the claim is barred by limitation. The second question relates to a sum of Rs. 2,000; with regard to this, the Court of first instance dismissed the suit, but the District Judge has granted the plaintiff leave to abandon his claim with liberty to institute a fresh suit under Order XXIII, Rule 1 of the Civil Procedure Code, 1908.2. As regards the first point, there can be no doubt that the sum really accrued due more than three years prior to the institution of the suit. The plai...
Madhu Sudan Mahato and ors. Vs. Midnapore Zemindari Co.
Court: Kolkata
Decided on: Aug-23-1917
Reported in: 46Ind.Cas.129
1. This is an appeal by the defendants in a suit for confirmation of possession of land on declaration of title, or, in the alternative, for assessment of fair and equitable rent thereon. The subject-matter of the litigation is a large tract of land in Mauza Brahmandia in Parganah Sildah. The plaintiffs claim to have acquired proprietary interest as well as several subordinate rights in the village, and their case is that the defendants, though they are their tenants only in respect of the lands comprised in Schedule 'ka' to the plaint, have set up an unfounded claim to the other lands of the village, on the basis of a lease granted in their favour by one Natabar Datta on the 27th July 1901. The Subordinate Judge has held that this lease was fraudulent, illegal and invalid, and, that, independently thereof, the defendants had no title to the lands of the village other than those included in Schedule 'ka'. The defendants have appealed to this Court against the decree of the Subordinate ...
Secretary of State for India Vs. Digambar Nanda
Court: Kolkata
Decided on: Aug-22-1917
Reported in: (1919)ILR46Cal160
Mookerjee and Walmsley, JJ.1. This is an appeal by the Secretary of State for India in Council in a suit instituted by the respondent under Section 104H of the Bengal Tenancy Act for declaration that he is an occupancy raiyat in respect of the subject matter of the litigation and for incidental reliefs. The Subordinate Judge has decreed the suit and has held that the plaintiff is not a tenure-holder but an occupancy raiyat and that the existing rent which the plaintiff was liable to pay before the last survey and settlement proceedings was fair and equitable. The substantial question in controversy, consequently, is whether the plaintiff is an occupancy raiyat as he alleges or whether he is a tenure-holder as recorded by the revenue authorities. The root of the title of the plaintiff is an amalnamah granted on the 19th June 1868 to his father by Lal Chand Bhuia, the then settlement holder under the Government. This document recites that the mouzahs mentioned were settled with the grant...
Moni Lal Seal Vs. Nepal Chandra Pal and ors.
Court: Kolkata
Decided on: Aug-22-1917
Reported in: 43Ind.Cas.511
1. This appeal is directed against an order for inquisition made under the Lunacy Act, 1912. The proceedings were initiated on an application on the 27th March 1917 by one Nepal Chandra Pal, who stated that the husband of his sister, Moni Lal Seal, was a lunatic and that it was necessary to take proceedings under the Lunacy Act for the care of his person and for the management of his estate. The petition was duly verified by Nepal Chandra Pal, who affirmed the truth of the statements material for the institution of the proceedings The District Judge, notwithstanding the opposition of the lunatic and his brother, has directed an inquisition. That order has been assailed before us on the ground that the application should not have been at all entertained. Two questions consequently require consideration; namely, first, whether the petitioner was competent to present the application, and, secondly, whether the District Judge could take action on the verified petition presented to him.2. A...
Bandiram Mookerjee Vs. Purna Chandra Roy
Court: Kolkata
Decided on: Aug-22-1917
Reported in: 43Ind.Cas.758
Asutosh Mookerjee, J.1. This is an appeal from an appellate order passed in execution proceedings on the basis of a decree in a mortgage suit which was valued at above Rs. 5,000. The order of the District Judge, which modifies the order of the Subordinate Judge, is challenged on the ground that the appeal from the order of the Subordinate Judge lay to this Court and not to the District Judge. This contention, is clearly well-founded.2. Section 21, Sub-section (1) of the Bengal Civil Courts Act, 1887, provides that an appeal from a decree or order of a Subordinate Judge, shall lie to the District Judge, where the value of the original suit in which or in proceedings arising out of which the decree or order was made does not exceed Rs. 5,000 and to the High Court in any other case. In the case before us the value of the original suit exceeds Rs. 5,000. Consequently, an appeal against an order made in a proceeding arising out of the decree in the suit lies to this Court and not to the Cou...
Atul Chandra Singha, Minor, by His Mother and Next Friend Srimati Nani ...
Court: Kolkata
Decided on: Aug-22-1917
Reported in: 43Ind.Cas.775
1. This is an appeal against an order for restitution made by the lower Appellate Court in confirmation of that of the trial Court. The appellant was the plaintiff in a suit for partition of joint property brought against the respondent and other person. A preliminary decree was made on the 9th September 1910. The defendant other than the respondent preferred an appeal against that decision. That appeal was ultimately allowed and the preliminary decree was set aside in its entirety on the 29th November 1911. The appellant thereupon preferred a second appeal to this Court. That appeal was dismissed on the 19th April 1915. Meanwhile, on the 1st September 1911 the final decree had been made by the Court of first instance on the basis of the preliminary decree of the 9th September 1910. The appellant was entitled to receive certain sums from the respondent under the final decree so made, and on the 29th April 1911 he realised these sums. On the 10th April 1916 the respondent applied for re...
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