Kolkata Court June 1934 Judgments
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Dinendra Mallick and anr. Vs. Pradyumna Kumar Mullick
Court: Kolkata
Decided on: Jun-21-1934
Reported in: AIR1935Cal596
Costello, J.1. This is an appeal from a judgment and decree of Buckland, J., dated 18th May 1933. The suit was brought by Pradyumna Kumar Mullick to recover from the defendant Kumar Dinendra Mullick and from the defendant Kumar Gopendra Mullick to the extent to which assets of his deceased father Kumar Ganendro Mullick might come into his hands a sum of Rupees 2,67,471-13-3 upon a covenant contained in an instrument described as a deed of mortgage dated 27th June 1924, which was executed in favour of the plaintiff by the defendant Kumar Dinendra Mallick and by the said Kumar Ganendro Mullick. There was also a claim for further interest for accounts if necessary and for payment of such sum as might be found due. The main point for determination at the trial of the suit in the Court below was whether it was in law competent to the plaintiff to bring a suit on the basis of the covenants in the deed of 27th June 1924 having regard to certain events and legal proceedings which had occurred ...
Shailabala Dasee Vs. Gobardhandas Ladsaria
Court: Kolkata
Decided on: Jun-20-1934
Reported in: AIR1935Cal212,155Ind.Cas.158
Costello, J.1. In this appeal from a judgment of Buckland, J., dated 24th January 1934, a point of considerable importance arises. The learned Judge himself said:In this case a preliminary point of considerable importance has been raised, on behalf of the defendant, by the learned Advocate-General.2. The suit was brought to recover a sum of Rs. 50,000 or such damages as the Court might allow, for breach of a covenant contained in a lease, whereby the defendant covenanted to return the property demised by the lease in good order and condition. It appears that a suit, which admittedly was precisely the same as the present suit (the previous suit being numbered 1771 of 1928) was instituted by the same plaintiff against the same defendant and on the same cause of action; that is to say, Shailabala Dasee was the plaintiff in Suit No 1771 of 1928 and she is the plaintiff in the present suit, and Gobardhandas Ladsaria was the defendant in Suit No 1771 of 1928, and he is defendant in the prese...
Kunjalal Ghose Vs. Emperor
Court: Kolkata
Decided on: Jun-19-1934
Reported in: AIR1935Cal26,155Ind.Cas.261
ORDER1. The petitioner was convicted by the Deputy Magistrate at Chandpur in the District of Tippera, under Section 420/120-B and Section 418, Penal Code, and sentenced to rigorous imprisonment for 18 months and to a fine of Rs. 500 in default to further rigorous imprisonment for six months, under Section 420/120-B. There was a sentence of rigorous imprisonment for 18 months also, under Section 418;, but the sentence so passed was to run concurrently with the other sentence passed under Section 420/120-B, Penal. Code. The aforesaid conviction and sentence by the learned Magistrate I were affirmed on appeal by the learned Sessions Judge of Dacca, to whose Court the appeal was transferred for hearing and disposal.2. The charge against the petitioner was fraud committed on the Sun Life Assurance Company of Canada, by inducing the said company to accept the proposal for insurance on the life of one Monoranjan Mazumdar, for the sum of Rs. 15,000, securing a false medical report from Dr. Bir...
Surendra NaraIn Shah and ors. Vs. Kanai Lal Dugar and anr.
Court: Kolkata
Decided on: Jun-15-1934
Reported in: AIR1934Cal735
1. These appeals are by the judgment-debtors in an execution proceeding. The decree under execution is a compromise decree passed in a mortgage suit. The objection of the judgment-debtors was that the decree was incapable of execution. The learned Judge overruled that objection. Hence the present appeals by the judgment-debtors. The first point urged by the learned advocate for the appellants is that the decree is incapable of execution, inasmuch as it simply declared that by the compromise the plaintiff would be thereafter a mortgagee by conditional sale in respect of the properties mortgaged.2. In other words, the contention is that the decree must be construed to be a decree declaring or creating rights which are unenforcible in execution and can be enforced only by a suit. The material portion of the decree in the present case is as follows:It is ordered and decreed that the suit be decreed in terms of the Refanama (petition of compromise) filed on behalf of both parties, that the ...
Surendra NaraIn Saha and ors. Vs. Kanai Lal Dugar and anr.
Court: Kolkata
Decided on: Jun-15-1934
Reported in: 152Ind.Cas.854
1. These appeals are by the judgment-debtors in an execution proceeding. The decree under execution is a compromise decree passed in a mortgage suit. The objection of the judgment-debtors was that the decree was incapable of execution. The learned Judge overruled that objection. Hence the present appeals by the judgment-debtors. The first point urged by the learned Advocate for the appellants is that the decree is incapable of execution, inasmuch as it simply declared that by the compromise the plaintiff would be thereafter a mortgagee by conditional sale in respect of the properties mortgaged.2. In other words, the contention is that the decree must be construed to be a decree declaring or creating rights which are unenforcible in execution and can be enforced only by a suit. The material portion of the decree in the present case is as follows:It is ordered and decreed that the suit he decreed in terms of the refanama (petition of compromise) filed on behalf of both parties, that the ...
Moslem Molla and ors. Vs. (Executor to the Estate of Late) Subal Chand ...
Court: Kolkata
Decided on: Jun-13-1934
Reported in: AIR1934Cal716,153Ind.Cas.1047
M.C. Ghose, J.1. This is an appeal by the defendants in a suit instituted by the plaintiffs for a declaration that the defendants were not permanent but ticca tenants of a part of the land and trespassers in respect of the other part that they were attempting to raise a pucca structure on the land which they had no right to do and the plaintiffs prayed for an injunction that the defendants be restrained from doing so. The first Court granted the plaintiffs a decree as prayed for. The Court of appeal below has affirmed that decree.2. In this Court it is urged that upon the facts found by the Courts below the defendants should be held to have a permanent right to the land. The defendants produced a patta dated the year 1830 which purports to confer a permanent right on the defendants predecessor. The trial Court rejected the patta as spurious and the appellate Court accepted that view. In the absence of a patta the Courts below have held that the origin of the tenancy is unknown. It has ...
Tarak Nath Chakravarti Vs. Gangadhar De and anr.
Court: Kolkata
Decided on: Jun-13-1934
Reported in: AIR1935Cal121
ORDERS.K. Ghose, J.1. The petitioner in this rule is the landlord of a holding which is alleged by him to be an occupancy raiyati holding. The case made by him is that the opposite party 2 and his co-sharers hold an occupancy raiyati holding at a rent of Rs. 5 per annum. The opposite party 2 sold his share of the holding to the opposite party 1 by a registered Kobala dated 18th Baisakh 1340 B.S. In this Kobala the tenancy was described as a 'Raiyati Kaimi Mukarari Jama' and according to the petitioner the term Mukarari' was wrongly used. He filed an application under Section 26-J, Ben. Ten. Act, for recovery of the proper landlord's fee, the fee having been already paid under Section 18 of the Act. The learned Munsif held that the tenancy of Rs. 5, of which a portion was sold by opposite party 2 was governed by the Transfer of Property Act and not by the Bengal Tenancy Act.2. In this rule it is contended that the learned Munsif overlooked the provisions of Section 182, Ben. Ten. Act, a...
Prabhatnath Das Vs. Ramendrakumar Skaha
Court: Kolkata
Decided on: Jun-13-1934
Reported in: AIR1935Cal158,155Ind.Cas.64
1. The facts which gave rise to these two appeals are as follows:2. One Ramsundar executed a mortgage bond in favour of Udaychandra Das borrowing Rs. 250 with interest at the rate of 2 per cent per month. There was also a stipulation for compound interest. On 15th November 1928, Uday's son, Mahendra, the sole appellant in S.A. 184 of 1933 and one of the appellants in M.A. 477 of 1932, instituted a suit on the mortgage-bond against the heirs of Ramsundar for recovery of Rs. 1,200 as executor to the will left by his father Uday after the death of Uday. At the time of the institution of the suit Mahendra did not institute any proceeding for getting a probate of the will of his father.3. During the pendency of the suit however he applied for probate and was appointed administrator pendente lite under Section 247, Succession Act. Thereafter he prosecuted the mortgage suit as administrator pendente lite and obtained a mortgage decree on 9th January 1931. The plaintiff's claim for a personal ...
Surendra Kumar Nandi Vs. BepIn Chandra Guha and ors.
Court: Kolkata
Decided on: Jun-13-1934
Reported in: AIR1934Cal861,153Ind.Cas.623
S.K. Ghose, J.1. The petitioner in this Rule purchased in an auction sale in execution of a mortgage decree a tenure belonging to opposite party No. 2 and situated in the District of Chittagong. His case is that the rent was settled in kaimi mokarari right by a registered lease dated August 15, 1835. He paid the landlord's fee and served notices as required by the Bengal Tenancy Act.2. Thereupon, the opposite party wife is the landlord made an application under Section 26-J of the Act for enhanced landlord's fee and compensation alleging that the land comprised an occupancy holding. In the lower Court the purchaser of the tenancy relied on the aforesaid registered patta while the landlord relied on the Record of Rights in which the entry was to the effect that the holding was an occupancy one. The learned Munsif gave effect to the entry in the Record of Rights and decided in favour of the landlord. Hence this Rule.3. A question has been raised as to whether in a matter like this, the C...
Troilokya Nath Ghose Vs. Jajneswar Pal and ors.
Court: Kolkata
Decided on: Jun-12-1934
Reported in: AIR1934Cal821,152Ind.Cas.933
S.K. Ghose, J.1. The petitioner in this Rule is a cosharer landlord of an occupancy holding of which opposite party 3 is a tenant. The holding comprises a homestead and some tenanted lands. It appears that the opposite party 3 Fatik Chandra Pal executed a lease by a patta in favour of opposite parties 1 and 2. This was registered Under Section 48-H, Ben. Ten. Act. Thereupon, on receipt of a notice, the petitioner filed an application Under Section 26-F, Ben. Ten. Act, alleging that the aforesaid lease was merely a colourable transaction, the real transaction being an out and out sale. The learned Munsif held that Under Section 92, Evidence Act, the petitioner was not entitled to give evidence to show that the transaction purported to be a lease and was in reality not an out and cut sale, and further that the lease being registered Under Section 48-H, the petitioner was not entitled to apply to re-purchase Under Section 26-F. Against that decision the present Rule has been obtained.2. S...
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