Court : Kolkata
Decided on : Feb-02-1917
Reported in : 43Ind.Cas.893
Sanderson, C.J.1 .This is an appeal from a judgment of my learned brother Mr. Justice Greaves, and the sole question which has been argued before us is whether the claim in the suit was barred by the Statute of Limitation.2. I will deal in detail with the nature of the suit directly.3. The suit was brought on the 8th of February 1913, and it was alleged to be in respect of a certain partnership of which the plaintiff Hari Prosad Saha was a member up to the 27th of June 1910. Before the case came on for trial, it was discovered that a necessary party, Mokshoda Sundari Ghowdhurani, had not been added and she was added on the 12th of February 1914, so that as regards the added party the claim was barred or was alleged to be barred, and consequently as she was a necessary party, the claim was alleged to be barred against the other parties. Therefore, when the case came on for trial the learned Counsel appearing for the defendant, Mr. S.R. Das, according to the minutes said, the suit is bar...
Tag this Judgment!Court : Mumbai
Decided on : Mar-30-1917
Reported in : (1917)ILR41Bom588
Batchelor, J.1. In this appeal it is candidly admitted by the learned pleader, Mr. Thakor, that he has no prospect of success unless he can be allowed to show that Article 127 of the Indian Limitation Act is not applicable to Mahomedan parties. Unfortunately for the learned pleader's contention there is a long series of decisions by Division Benches of this Court against that argument, and sitting as a single Judge, I am bound, it seems to me, to give effect to those decisions. If Mr. Thakor can carry the matter to a Division Bench on appeal and can induce a Division Bench to refer the point for reconsideration by a Full Bench, that is another matter. But all that I can do is to dismiss the appeal with costs, following the course of Division Bench decisions to which I have referred.2. Cross-objections are dismissed with costs.3. There was an appeal against the above decision under the Letters Patent. The Letters Patent appeal was heard by Beaman and Heaton JJ. on the 8th September 1916...
Tag this Judgment!Court : Chennai
Decided on : Jan-16-1917
Reported in : 40Ind.Cas.429
Wallis, C.J.1. As regards the second question my answer is that, in a suit for specific performance of a contract by a member of an undivided Hindu family to sell his share, it is not permissible to join the other members of the family as defendants merely with a view to obtaining partition and possession of the alleged vendor's share as against them. It may, I think, be taken as the settled and salutary practice of this and other Courts in India, where parties properly sued for specific performance of a contract for sale of land are in possession of the land, to allow a prayer for possession to be added to the prayer for specific performance, thereby obviating the necessity for filing s fresh suit for possession to which there could be no defence. Bugata Appala Naidu v. Ghengalvala Jogiraju 32 Ind. Cas. 237 : (1916) 1 M.W.N. 77. It is, however, in my opinion quite a different thing to allow a stranger to make the members of a joint Hindu family defendants in a suit for a partition, un...
Tag this Judgment!Court : Kolkata
Decided on : Feb-28-1917
Reported in : 41Ind.Cas.313
Teunon, J.1. These are six applications made to this Court under the provisions of Section 115 of the Civil Procedure Code and of Section 195 (6) read with Section 195 (7) (c) of the Code of Criminal Procedure.2. In each case the applicant was the defendant and the opposite party the plaintiff in a suit brought in the Court of Small Causes, Calcutta. The suit having been dismissed, the defendants applied to the Trial Judge for sanction to prosecute the plaintiffs under Sections 209 and 193 of the Indian Penal Code. Sanction having been refused, in these applications, for the hearing of which I and Chaudhuri, J., have been constituted a Divisional Bench by his Lordship the Chief Justice, we are invited to revise and set aside the order of the Judge of the Court of Small Causes and to giant the sanction for which application was, and is, made.3. At the hearing Babu Manmatha Nath Mukerjee, a Vakil enrolled and ordinarily practising in this Court, was authorised by the plaintiffs-opposite ...
Tag this Judgment!Court : Chennai
Decided on : Jul-19-1917
Reported in : AIR1918Mad624; (1918)ILR41Mad319
John Wallis, Kt., C.J.1. In this case a trustee was ordered to be removed by Mr. Justice Bakewell and an account was directed to be taken against him. That decision was confirmed on appeal and the case went to the learned Official Referee. But the learned Official Referee was of opinion that certain questions of fact involved should be decided by the Court itself, and the case, therefore, came before Mr. Justice Coutts Trotter sitting on the Original Side and we have now to deal with an appeal from his decision.2. The question argued before us on appeal relates to item 11, certain house property to which the trust became entitled in the time of the former trustee, some ten years before the accession to the office of trustee of the defendant in this suit so that the defendant had two years in which he could have taken step for recovery of the property. It is stated by the learned Judge, and the case proceeds upon that basis, that neither the present defendant nor his predecessor did any...
Tag this Judgment!Court : Chennai
Decided on : Jan-16-1917
Reported in : (1917)32MLJ575
John Wallis, C.J.1. As regards the second question my answer is that, in a suit for specific performance of a contract by a member of an undivided Hindu family to sell his share, it is not permissible to join the other members of the family as defendants merely with a view to obtaining partition and possession of the alleged vendor's share as against them. It may I think be taken as the settled and salutary practice of this and other Courts in India where parties properly sued for specific performance of a contract for sale of land are in possession of the land to allow a prayer for possession to be added to the prayer for specific performance, thereby obviating the necessity for filing a fresh suit for possession to which there could be no defence. Bugata Appala Naidu v. Chengalvala Jogiraju (1916) 1 M.W.N. 77. It is however in my opinion quite a different thing to allow a stranger to make the members of a joint Hindu family defendants in a suit for a partition until he has establishe...
Tag this Judgment!Court : Mumbai
Decided on : Jun-21-1917
Reported in : AIR1917Bom113; (1917)19BOMLR665; 41Ind.Cas.968
Marten, J.1. This case raises an interesting point on which there is apparently no authority in India, namely, whether, as between fixed preference and ordinary shareholders, the former are entitled to have their preference dividends paid free of income-tax in a case where there are no express words to that effect in the contract regulating the rights of the parties. The Crown is not affected. The full tax on the net profits of the defendant company has admittedly been paid and the sole question is whether the preference shareholders can escape liability for their proportion of the tax. Now, if this case arose in England, the matter would be quite clear. The preference shareholders would undoubtedly have to bear the income tax on their respective shares. If authority is needed for that proposition, I may refer to Attorney-General v. Ashton Gas Company (1904) 2 Ch. 621 : (1906) A.C. 10. That was a ease where the special Act under which the company was incorporated provided that the prof...
Tag this Judgment!Court : Chennai
Decided on : Mar-22-1917
Reported in : 42Ind.Cas.366
Wallis, C.J.1. This is a suit brought by the two plaintiffs with leave under Order I, Rule 8 of the Code of Civil Procedure, 1908, as representing themselves and other tambirans and disciples of the suit mutt, to declare certain alienations made by the mahant invalid and have the property alienated handed over to the mahant, the 1st defendant. The mahant having 'died during the pendency of the suit and been succeeded by the 1st plaintiff, the plaint was amended accordingly and now prays for possession to be given to the 1st plaintiff.2. The Subordinate Judge has held that mutt properties as such are not trust properties and that consequently the suit is not barred under Section 92, Civil Procedure Code, but he has also held that the plaintiffs are not entitled to sue for possession to be given to the 1st defendant and that the suit must be treated as one for a declaration and is barred under Article 120 of the Limitation Act.3. If the suit properties were held by the Pandara Sannadhi o...
Tag this Judgment!Court : Mumbai
Decided on : Mar-29-1917
Reported in : (1917)19BOMLR650; 42Ind.Cas.9
Marten, J.1. This is an action in effect to recover out of the immoveable property of the Fulmali caste certain sums of money amounting in all to Rs. 7234 which were paid by the plaintiff in order to set aside a judicial sale of this immoveable property and to satisfy certain other attachments which had been made against this property in suit No. 559 of 1911. The defendants other than defendants 11 and 12 represent the caste under a representation order made in this action under 0rder I, Rule 8.2. The defence in effect is that this judicial sale and the warrants for attachment were all made per incuriam without jurisdiction and are not binding on the caste and that even if they are binding, the plaintiff is not entitled to any charge on the property and is indeed without any remedy, for it is contended that as he is not entitled to a personal decree against all the members of the caste, he cannot by attachments get at the caste property. The immoveable property in question is the Caste...
Tag this Judgment!Court : Kolkata
Decided on : Apr-03-1917
Reported in : 40Ind.Cas.865
1. These appeals arise out of two suits instituted by the Eastern Mortgage & Agency Company, Limited, op the basis of two separate mortgages executed by one Priomoyee Dasi and Mohini Mohan Das respectively. Appeal No. 495 of 1914 is against the preliminary decree in the suit to enforce the mortgage executed by Priomoyee Dasi and Appeal No. 268 of 1915 is against the final decree in that suit, while Appeal No. 544 of 1914 is against the preliminary decree in the suit to enforce the mortgage executed by Mohini Mohan Das and Appeal No. 275 of 1915 is against the final decree in that suit.2. The mortgaged properties originally belonged to one Modusudan Das, who died in April 1865 leaving his widow Sham Peary Dasi the defendant No. 1 in the suits and five sons Mohini Mohan, Radhika Mohan, Lal Mohan, Khetra Mohan and Shosi Mohan, Shosi Mohan died unmarried and intestate on the 1st October 1865 and his one-fifth share thereupon devolved upon his mother Sham Peary. By an ekrar, dated the 29th ...
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