Court : Kolkata
Reported in : (1886)ILR13Cal136
..... indeed in this part of the case the defendant appeal's to have relied mainly upon imperfections in the plaintiffs' evidence. mr. ..... , tarrabullub chatterjee, who professes to carry his memory back to 20 years at all. .....
Tag this Judgment!Court : Kolkata
Reported in : (1887)ILR14Cal276
1. the judgment of the high court (prinsep and beverley, jj.) after stating the facts as above, proceeded as follows:it becomes necessary, therefore, in dealing with this appeal, to determine the exact effect of a muta marriage under the shiah law, and whether it can be dissolved in the manner stated by the plaintiff, and found by both the courts. the word muta signifies 'enjoyment,' and as applied to a particular form of marriage indicates a marriage of a temporary character, 'the extent of the period being left entirely to the parties who may prolong or shorten it to a year, a month, or a day; only some limit must be distinctly specified, so as to guard the period from any extension or diminution.' (baillie's digest of mahomedan law, part ii, on the imamia code, page 42). in the tagore law lectures, 1874, by shama charan sircar, on the same subject, at page 373, section 517, the law is expressed in the same terms, the tahrir-ul-ahkam being quoted as an authority.2. there is apparently no limit to the number of wives married in this form. the mahomedan law limits the number of permanently married wives to four, but it is stated on the authority of the imam jafer sadik that the number of muta, wives is not restricted to the usual number of four or even to seventy (see baillie, 345). the eight rules of the contract of a temporary marriage are set out in baillie, pages 42-44, and by shama charan at pages 379-381 to the same effect. prom these, as well as from the fact that ' .....
Tag this Judgment!Court : Kolkata
Reported in : (1887)ILR14Cal50
1. the respondents rukini mohun bose and anando kishore bose obtained a decree against the appellant and others on the 15th august 1878 for possession of certain lands and mesne, profits thereof from the date of dispossession to the date of the recovery of possession. rukini mohun bose was then not of age, and was represented by a guardian. the decree directed the amount to be fixed in execution under sections 211 and 212 of the code of civil procedure. rukini mohun attained his majority on the 17th april 1885. in execution of this decree possession was taken in the month of august 1880.2. on the 4th of april 1882 the respondents applied to the court for the ascertainment of the mesne profits. the civil court amin was directed by the court to make the necessary inquiry, and notwithstanding repeated reminders from the court, the amin not having completed his inquiry, the application was struck off on the 9th october 1882.3. on the 18th september 1885 the present application was made for the ascertainment of the wasilat, and for the realization of the amount which might be fixed, by the attachment and sale of the judgment-debtors' property. the judgment-debtors pleaded limitation, and the lower court having overruled it, one of them has preferred this appeal.4. the lower court treated the present application as one for execution of a decree under article 179 of the second schedule of the limitation act. it has overruled the plea of limitation upon two grounds: it has presumed .....
Tag this Judgment!Court : Kolkata
Reported in : (1887)ILR14Cal9
1. this is a suit brought substantially to set aside a sale of an undivided share in mouzah ismailpore, forming a part of a mehal which also includes other mouzahs. the plaintiff being one of the sharers in the mehal, his interests were sold for arrears of road cess; and he sues the purchaser and the other persons interested in the transaction.2. the lower court has given a decree in the plaintiff's favour.3. it is said, first, that such a suit will not, in any case, lie in a civil court; and the ground for that contention is that, in bengal act vii of 1880, section 19, it is said that a certificate may be enforced and executed by all or any of the ways and means mentioned and provided in the code of civil procedure for the enforcement and execution of decrees for money; and that all the practice and procedure provided by the code of civil procedure in respect of sales in execution of decrees, and in various other matters enumerated, shall apply to every execution issued to enforce such certificate. it is said that the effect of that is to incorporate the whole of the enactments of sections 311 and 312, and the following sections of the code of civil procedure into the certificate procedure; and that therefore, if a judgment-debtor is desirous of objecting to a sale which has taken place, his remedy is to put in his objection in the court of the revenue officer before the sale is confirmed, and then, if his claim be disallowed, to appeal to this court against the disallowance .....
Tag this Judgment!Court : Kolkata
Reported in : (1886)ILR13Cal326
w. comer petheram, c.j.1. this is a suit which has been brought by the plaintiff against the defendant to recover a sum of rs. 2,750 and interest, and various other sums. the lower court has dismissed the suit altogether, and so the matter comes before us now in appeal.2. the facts of the case are that, some time ago, the present defendant brought a suit against the present plaintiff and two other persons, to recover a certain sum of money. it is immaterial to enquire what that suit was about. the court of first instance dismissed that suit with costs, which amounted to rs. 300 and odd. the plaintiff in that suit appealed from that decision, and while the appeal was pending the defendants in that suit sued out execution of their decree for costs and in the execution proceedings the house, in which the then plaintiff was living, was sold and purchased by the present plaintiff, one of the defendants in that suit, for rs. 2,750. out of that amount the costs, on account of which the execution had been taken out, were satisied, and the balance, amounting to rs. 2,429, was paid into court, whereupon the plaintiff (the present defendant) applied to have that amount paid out to her, and that was accordingly done.3. the state of things, therefore, was this; that the house had passed into the hands of the auction-purchaser, who happened to be also the execution-creditor, the costs for which execution had been issued was satisfied, and the balance of the purchase-money, the rs. 2,429, .....
Tag this Judgment!Court : Kolkata
Reported in : (1886)ILR13Cal336
..... of the family; and the other suit was against kedar nath and the representative of annoda pershad, in respect to such properties as belonged exclusively to tara churn and his descendants; and it appears that one of the main grounds upon which the present suit was defended by kedar nath coondoo was that, there having been already a separation in food and worship, as admitted by the plaintiff, and also by reason of the said partition ..... , and which were received in evidence by the consent of both parties, that a decree has been passed on the 20th february of the present year determining in the suit of hurrish chunder against both the branches of the main fapily, the 'share of hurrish chunder to be 2 annas and of kedar nath and his nephews to be 4 annas out of the 6 annas share in properties belonging jointly to the whole family. .....
Tag this Judgment!Court : Kolkata
Reported in : (1887)ILR14Cal133
mitter and grant, jj.1. with reference to the first point it has been urged (a) that in 1851 the plaintiff's predecessor in title having obtained a decree for enhancement under section 5, regulation xliv of 1793, by virtue of his auction purchase right, it would be contrary to the intention of the legislatureis expressed in that regulation, to allow the plaintiff to raise the rent, again ; (6) that under the provisions of regulation viii of 1793, it was intended that a zemindar should have the power of enhancing the rent of a dependant taluk where he establishes such right under section 51 of the said regulation, once for all, and that he has no right to enhance the rent second time ; (c) that supposing the contention (d) is untenable, a zemindar seeking to enhance the rent of a dependant taluk a second time, on the ground that he is entitled to enhance the rent by the speeial custom of the district, cannot succeed by proving the existence of such custom generally, but must establish that the custom upon which he relies enables him to enhance the rent a second time.2. in support of (a), the case of mohiny mohun roy v. ichamoyee dassea 4 c. 612 has been cited. although this case supports the contention, still it does not help the appellant, because the plaintiff is seeking in this case to enhance the rent of the taluk, not by virtue of his right of an auction-purchaser, but by virtue of his ordinary right of a zemindar to enhance the rent of an under-tenure from time to time. .....
Tag this Judgment!Court : Kolkata
Reported in : (1887)ILR14Cal159
1. the learned judges, who heard this case in special appeal, have held on the construction of the plaint that the minor was the real plaintiff. they have, however, referred the following question to the full bench:2. where a suit is brought by a next friend on behalf of a minor and for his benefit, and where the court of first instance allows it to proceed, whether the objection that the minor was not properly described according to section 440 of the civil procedure code, or that the next friend was not a certificated guardian under act xl of 1858, or that no express permission was granted to him by the court to sue on behalf of the miner, is fatal to the suit.3. in regard to the first portion of this question, we are of opinion that the fact that the judge allowed the suit to proceed is evidence that the court trying the case allowed the institution of the suit, and the referring judges have found to that effect.4. in regard to the next part of the question, namely, whether the objection that the minor was not properly described according to section 440 of the code of civil procedure, is fatal to the suit, we are of opinion that it is not. in all cases the question to be decided is whether on a construction of the plaint and the pleadings the minor is really a party to the suit or not, and if he be, any irregularity in this description is provided for by section 578 of the code which declares : 'no decree shall be reversed or substantially varied, nor shall any case be .....
Tag this Judgment!Court : Kolkata
Reported in : (1887)ILR14Cal67
..... thirdly, and this was the main contention before us, it is said that the words which say that the orders of the board of revenue 'shall be final' are conclusive. .....
Tag this Judgment!Court : Kolkata
Reported in : (1887)ILR14Cal14
1. two questions have been raised before us by the learned counsel for the appellant. 1st, that under the terms of the kabuliat, creating the tenancy between the parties, the landlord is bound to sell the tenure itself in the first instance ; 2nd, that under the provisions of the rent law (bengal act viii of 1869) the decree-holder is not entitled to sell any other immoveable property before bringing to sale the tenure itself.2. as regards the first of these two contentions we are of opinion that it cannot be sustained. the decree was an ordinary decree for rent; and no reference whatever was made in it to the kabuliai or to the terms thereof, and it does not appear that the kabuliat was even filed in the rent suit. that being so, it is not open to the judgment-debtor to go behind the decree, and to insist that the terms of the kabuliat should regulate the rights and liabilities of the parties as regards the mode in which the decree should be realized.3. the second point is by no mean's free from difficulty. under the provisions of act x of 1859, there seems to have been no doubt that such a proceeding as the decree-holder now desires to adopt was unauthorized--see desarotulla v. nazim nazar ally 1 b.l.r.a.c. 216, and jokee lall v. nursing narain 4 w.r. act x 5. but then the question arises whether under bengal act viii of 1869 it is authorized.4. the learned government pleader who appeared for the decree-holder contended that, under act viii of 1869, the decree holder was .....
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