Court : Orissa
Reported in : AIR1956Ori58; 21(1955)CLT561
..... incompetent for want of court's permission under order 1, rule 8, c.p. c. and that the provisions of order 21, rule 63 were not incompatible with section 53, t.p. act. on a perusal of the decision of their lordships, we find that the plaint in the madras case is entirely different from the plaint before us. there the allegation ..... the least affect any independent right of any individual creditor to bring a suit for enforcement of such a right and he is not compelled to bring suit under section 53, t.p. act and if he properly frames the suit, the suit is maintainable. in the present case, on a fair construction of the plaint, we are definitely of the view ..... that it is not hit by the provisions of section 53, t.p. act. the lower appellate court has gone wrong in law and his finding that the suit is not maintainable must be set aside.6. regarding the second point whether the .....
Tag this Judgment!Court : Orissa
Reported in : AIR1956Ori156
..... transfer of a right to enjoy a profit a prendre and was therefore grant of immovaole property within the definitions contained m the general clauses act, section 3(2) and section 2(6), registration act, as relating to 'benefits arising out of land'.this was followed in a later decision of that high court, in income-tax appellate ..... principles that a mere license is, in its nature. revocable and that a license coupled with a grant is irrevocable, has received statutory recognition in section 60, indian easements act. section 60 lays down that'a license may be revoked by the grantor unless (a) it is coupled with a transfer of property, and such transfer ..... can find no justification for the further assumption that a license coupled with a grant should be regarded as 'transfer of property within the meaning of section 60, easements act. property must be understood in the most generic and comprehensive sense, as including absolute rights and 'transfer' is to be understood as meaning alienation or .....
Tag this Judgment!Court : Orissa
Reported in : AIR1956Ori108; 1956CriLJ638
..... the ends of justice would be adequately met by passing an order for lesser sentence of transportation for life.in this view of the matter therefore the offence under section 201, i. p. c. does not arise for consideration as the accused persons did not attempt co screen from legal punishment persons other than themselves. moreover, ..... moment not master of his mind. let me distinguish for you some of the things which provocation in law is not.circumstances which merely predispose to a, violent act are not enough. severe nervous exasperation or a long course of conduct causing suffering & anxiety are not by themselves sufficient to constitute provocation in law. indeed, the ..... run concurrently. the two appellants were charged undpr s. 302, penal code.2. the prosecution case la that deceased kartik pradhan was the brother of the two act cused persons. laikhan being the eldest, kartik the second and ramchandra the last brother. the three brothers were living separate but in the same khanja with a .....
Tag this Judgment!Court : Orissa
Reported in : 22(1956)CLT39
..... rao v. subbayya air 1936 p.c. 283 (l) have similarly upheld an alienation 9n the ground that the widow was placed in a difficult position and had acted in a reasonable manner by mortgaging the property and averting a sale for the satisfaction of a claim.32. the expression 'kutumbarthe' which is the textual basis for ..... be of a defensive character and must be calculated to protect the estate from threatened danger or destruction. according to the other view if the karta has acted with prudence and the act was neither hasty nor reckless, the alienation would be upheld as being for the benefit of the estate.a view, intermediate between these two extremes has ..... safely taken for granted that the widows had not the means to effect the repairs. on this finding the learned subordinate judge considered whether defendants 3 and 4 acted prudently in selling away the suit property which consisted of the building along with 153 decimals of land which formed a part of the suit property and after .....
Tag this Judgment!Court : Orissa
Reported in : AIR1956Ori97; 21(1955)CLT549; 1956CriLJ635
..... when the warrants have been actually produced and ex facie there is no defect in them there seems to be no special reason why the presumption under section 114, illustration (e), evidence act should not be drawn.8. the second contention of mr. das deals with the absence of any evidence to prove the name of the sub-divisional ..... c) where a warrant was on the face of it not defective the court would be entitled to draw a presumption in accordance with the provisions of section 114, illustration (e). evidence act. .doubtless, it was for the lower courts to say whether they would draw such a presumption or not. but when they have drawn such a ..... (though in a torn condition) and there is absolutely nothing ex facie to show any detect in the same, the court may draw a presumption under section 114, illustration (e). evidence act and assume that the warrants were properly issued by the sub-divisional magistrate of alipur.in support of this argument the learned government advocate has relied on .....
Tag this Judgment!Court : Orissa
Reported in : 21(1955)CLT521; [1956]7STC36(Orissa)
..... the profits made by the company during the financial ye,ar could be claimed and it was held that the liability of the company referred to in sub-section (1) of section 50, finance act of 1940 meant the legal liability actually existing at law and not a prospective liability. lord greene, m.r. observed: 'although it is absolutely certain ..... of tax that may be assessed on you, a penalty not exceeding 1 1/2 times the amount should not be imposed on you under sub-section (5) of section 12 of the act. in the event of your failure to comply with all the terms of this notice i shall proceed to assess you to the best of my ..... australia ltd. v. federal commissioner of taxation' 1931 ac 275 (a) the question was whether the powers and functions of the board of review created by . section 41, income-tax assessment act (1922-25) in, making assessments were in exercise of the judicial powers or whether they were merely administrative functions. lord sankey while defining judicial power enumerated some .....
Tag this Judgment!Court : Orissa
Reported in : AIR1956Ori85
..... the plaintiff was a 'holder in due course' and as such is entitled to recover the amount irrespective of the fact whether the discharge pleaded is due or not. section 9, negotiable instruments act defines a 'holder in due course' as 'one who for consideration becomes the possessor of a promissory note before the amount mentioned in it becomes payable and without ..... awarded a decree against the transferee. however much we may sympathise with the plaintiff we cannot accept this contention as we find that the negotiation was made by defendant 2 acting on behalf of the bank as its agent.8. the position therefore that emerges fromthis transaction is that all the time the plaintiff was dealing with the bank as such .....
Tag this Judgment!Court : Orissa
Reported in : AIR1956Ori56; 22(1956)CLT139
..... not strangers in favour of whom partition could not be granted. it is against this finding that defendant 1 has come up in appeal.4. sub-section (1) of section 4, partition act says:'where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family ..... house or building for human dwelling belonging to an undivided family, i am, unable to understand why the expression 'family dwelling house' should be read into the act when the section itself says, in clear terms, that it applies to 'a dwelling house belonging to an undivided family'.no reasons are given by the learned judge for entertaining ..... consideration is whether defendant 1 the appellant, who is willing to purchase the 4 annas interest of kadambini from the plaintiffs is entitled to any relief under section 4, partition act.the courts below have negatived the appellant's claim on the ground that on samuel's death the plaintiffs who became cosharers in the suit house were .....
Tag this Judgment!Court : Orissa
Reported in : AIR1956Ori89; 22(1956)CLT11
..... the surface water after it has passed over the defendants' lands.4. it was assumed in the courts below that the easements act (5 of 1882) applies to the area from which the parties come. section 17(c) of the act expressly says that no easement right can be acquired to surface water not flowing in a stream and not permanently collected in ..... a pool, tank, or otherwise. illustration g to section 7(b) also speaks of the right of every owner of land to collect and .....
Tag this Judgment!Court : Orissa
Reported in : AIR1956Ori99
..... pradesh, air 1954 nag 90(a)'. in that case the learned judges observed as follows:'article 311(2) of the constitution is in terms similar to section 240(2), government of india act, 1935, except ttiat it includes removal also within its ambit. the above observations, therefore, apply with equal force to a case arising under the constitution ..... high commissioner for india v. i.m. lall, air 1948 p.o. 121(b), where their lordships in construing section 242, government of india act, 1935, observed:'it does, however, seem to us that the sub-section requires that as and when an authority is definitely proposing to dismiss or reduce in rank a member of the civil service ..... not been given the opportunity to which he is entitled thereunder and the purported removal of the respondent did not conform to the mandatory requirements of sub-section (3) of section 240 and was void and inoperative.' in this case, therefore, it is clear that there was no second notice as contemplated under the then existing law .....
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