Kolkata Court April 1922 Judgments
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Janaki Nath Saha and ors. Vs. Baikuntha Nath Ghattak and ors.
Court: Kolkata
Decided on: Apr-26-1922
Reported in: AIR1922Cal176,70Ind.Cas.602
Thomas Richardson, J.1. The plaintiff in this second appeal seeks to recover possession of certain land which had been mortgaged to him by the defendants Nos. 1 to 3 and which he had purchased at a sale held on the 17th July 1905, in execution of a decree on foot of the mortgage. The sale was confirmed on the 18th August. On the 15th December following possession, of the land was delivered to the plaintiff, and the present suit was brought on the 14th December 1917, that is, more than 12 years after the sale was confirmed, but just within 12 years of the date on which possession was delivered. The two Courts below have concurred in finding that possession was delivered symbolically, or, in other words, that the plaintiff was given not actual but formal possession of the land.2. Both Courts have, therefore, concurred in rejecting the allegations of the plaintiff that he obtained actual possession, that he took settlement of the land from the landlord and that he had afterwards been in p...
In Re: Jnanendra Nath Roy (Deaceased)
Court: Kolkata
Decided on: Apr-26-1922
Reported in: AIR1923Cal265,70Ind.Cas.463a
Greaves, J.1. This is an application by the widow of the deceased for a grant to her out of this Court of fetters of Administration of her deceased husband's estate. There is no doubt that she is entitled to a grant but she asks for it under the Indian Succession Act (Act X of 1865) which (see Section 331) does not apply to intestate succession. to the property of any Hindu, Muhammadan or Budhist and the question that falls for decision is whether under the circumstances the applicant is entitled to a grant under that Act or whether the grant should issue under the provisions of the Probate and Administration Act (Act V of 1881). The deceased left an infant son, and if the grant issues under the former Act. the widow will be entitled to 1/3rd of the estate, if under the latter Act she will only be entitled to the ordinary rights of, a Hindu widow under Hindu Law. Under these circumstances, I directed that the infant son should be represented and a guardian ad litem was appointed and th...
Uma Charan Chakrabarti and ors. Vs. Nibaran Chandra Chakrabarti
Court: Kolkata
Decided on: Apr-26-1922
Reported in: AIR1923Cal389,75Ind.Cas.2
1. This is an appeal against the final decree in a mortgage suit for sale. The decree has been assaled on the ground that it was made on the basis of an applicat on under Order XXXIV, Rule 5, Sub-rule (ii), of the Code of Civil Procedure which was presented after the lapse of the prescribed time. To test the validity of this argument, it is necessary to refer to the salient facts in this case. The prelminary decree was made on the 16th July 1914 under Section 96 of the Code of Civil Procedure, an appeal lay against this decree. Indeed, under Section 97 if an appeal was riot preferred, the defendants would not be competent to challenge its correctness in an appeal against the final decree. An appeal was consequently lodged in this Court. The appeal was heard on the merits and the Court came to the conclusion that the decision of the Trial Court could not be successfully assailed. The result was that the decision of the Trial Court was affirmed and the appeal was dismissed with costs on ...
Basanta Kumar Roy and ors. Vs. Manjuri Dasi and ors.
Court: Kolkata
Decided on: Apr-25-1922
Reported in: AIR1924Cal349
1. In this case, the judgment-debtors are the appellants and their plea is that the execution of the decree is barred by limitation. The decree in this case was passed by the Court of first instance on the 29th of July, 1915. There was an appeal by the plaintiff's, who are the decree-holders, to the High Court and the appeal was dismissed on the 5th of May, 1919. The application for execution of the decree was presented on the 5th of December, 1919 : under paragraph 2 of the third column of Article 182 of the Indian Limitation Act, there is no doubt that the application for execution would be within time. But the judgment-debtors contend that there was no bona fide appeal so as to bring the case under the provisions of the second paragraph of column 3 of Article 182, and the reason for stating that the appeal was not bona fide is that ad valorem Court-fee was not paid on the memorandum of appeal, and that the appeal was dismissed by this Court upon the ground that it was incompetent, a...
Sajedar Rahaman Vs. Rakhal Chandra Roy and ors.
Court: Kolkata
Decided on: Apr-25-1922
Reported in: AIR1924Cal529
1. This appeal arises out of a suit for enforcement of a mortgage instituted by the plaintiffs with regard to a fractional share of a holding which originally belonged to the defendants Nos. 1 and 2. The defendant No. 3 is the landlord of the holding and he purchased the interest of the principal defendants Nos. 1 and 2 the mortgagors in the entire holding, in execution of a decree for money. The plaintiffs ask for a mortgage-decree against all the defendants on the allegation that the defendant No.3 is the purchaser of the equity of redemption, and they say that they are entitled to have a decree in his presence. The defendant No. 3 claims a title paramount and ordinarily, he might have been dismissed from the suit on that ground. But the question has been debated in both the Courts below whether the defendant No. 3 has any interest in redeeming the property and, as he has not asked even in this Court to be dismissed from the suit, we do not think that it would be proper at this stage...
Munshi Sajedar Rahaman Vs. Rakhal Chandra Roy and ors.
Court: Kolkata
Decided on: Apr-25-1922
Reported in: 70Ind.Cas.71
1. This appeal arises out of a suit for enforcement of a mortgage instituted by the plaintiffs with regard to a fractional share of a holding which originally belonged to the defendants Nos. 1 and 2. The defendant No. 3 is the landlord of the holding and he has purchased the interest of the principal defendants Nos. 1 and 2, the mortgagors in the entire folding, in execution of a decree for money. The plaintiffs ask for a mortgage-decree against all the defendants on the allegation that the defendant No. 3 is the purchaser of the equity of redemption, and they say that they are entitled to have a decree in his presence. The defendant No. 3 claims a title paramount and, ordinarily, he might have been dismissed from the suit on that ground. But the question has been debated in both the Courts below whether the defendant No. 3 has any interest in redeeming the property and, as he has not asked even in this Court to be dismissed from the suit, we do not think that it would be proper at thi...
Jitmull-girdhari Lal Vs. Ram Gopal Bohitram
Court: Kolkata
Decided on: Apr-25-1922
Reported in: AIR1923Cal419,74Ind.Cas.275
Rankin, J.1. This is one of two suits which have been brought to set aside awards of the Bengal Chamber of Commerce in respect of a contract made in the Jute Market in Calcutta. The type of contract in question is, I am satisfied by the evidence before me and by the reported cases, a well-known type. It is called by way of distinction a 'principal contract.' The contract with which I am concerned is 'dated the 19th August 1918 and it is evidenced by Bought and Sold Notes, passed: (as the phrase goes) by the firm of Ramgopal-Bohitram, who are defendants before me. The characteristic of a 'principal contract,' such as this, is that on the Sold Note, which the broker sends to the seller, the name of the sellers themselves appears but the name of the buyers does not appear; instead of the buyers name the words 'Our Principals' are inserted. In like manner on the Bought Note, which is sent to the buyers, the name of the buyers themselves appears and instead of the name of the sellers the wo...
Giris Chandra Bhattacharyya and anr. Vs. Bhabataran Shakari and anr.
Court: Kolkata
Decided on: Apr-25-1922
Reported in: AIR1923Cal667,74Ind.Cas.552
1. This is an appeal by the plaintiffs in a suit for ejectment. The plaintiffs served a notice upon, the defendant to quit at the end of the then current Bengali year. Notwithstanding this, the defendant remained, in occupation. The case for the defend ant is that the incidents of the disputed land are governed by the provisions of the Bengal Tenancy Act, and that consequently he is not liable to be ejected. The primary Court held that the land was not agricultural in character and was governed by the provisions of the Transfer of Property Act. In this view the Court of first instance decreed the suit, as the tenancy was capable of termination and had been terminated by a legal notice to quit. On appeal the District Judge has dismissed the suit as, in his opinion, the tenancy was governed by the Bengal Tenancy Act and could not be terminated. We are of opinion that the view taken by the District Judge is manifestly right.2. The plaintiffs are on the horns of a dilemma. The defendant ha...
Raja Resheecase Law Vs. Chintamoni Dalai and anr.
Court: Kolkata
Decided on: Apr-24-1922
Reported in: AIR1922Cal510,70Ind.Cas.535
Cuming, J.1. This appeal arises out of an application under Section 105,Bengal Tenancy Act, to settle fair rents of a number of holdings and relates to two of the holdings viz., Nos. 16 and 53. The landlord asked for an enhancement of the rent of these holdings under Sections 30(b), Bengal Tenancy-Act. With regard to both these holdings the lower Courts have held that as No. 16 is a homestead and No. 53 is a homestead and tank, they are not liable to enhancement under Section 30(6), Bengal Tenancy Act. The landlord has appealed. The tenant unfortunately, as the question is apparently one of first impression and also of some importance, has not appeared. The decision of the question would seem to depend on the wording of Section 30 and Section 182.2. Reading Section 30 there seems nothing in the section to restrict it to the land actually used for cultivation. To attract the operation of the section it would seem to be sufficient that the land in question is a holding, held at a money r...
Gangaram Majhi and ors. Vs. Bamapada Mahapatra
Court: Kolkata
Decided on: Apr-24-1922
Reported in: AIR1923Cal313,68Ind.Cas.301
1. In this case, the sole question is, whether the adjustment of a decree by way of a simple mortgage made by an aboriginal of his holding is valid having regard to the provisions of Section 49 E, Sub-section (2) of the Bengal Tenancy Act. It appears that the mortgage was made to a non-aboriginal with the consent of the collector as provided by Section 49F sub Section (1) (a) of that Act. The learned District Judge has held that, under the provisions of Section 49F, the Collector could only grant permission to an aboriginal to effect a transfer of his holding to a non-aboriginal if the aboriginal is unable to mortgage his land to another aboriginal as provided in Section 49E, Sub Section (1) of the Act. The learned District Judge has, however, held that the power of an aboriginal to effect a mortgage of his land is restricted by the provisions of Section 49E, Sub-section (2) of the Act under which such a tenant is empowered only to make a complete usufructuary mortgage of his land and ...
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