Court : Allahabad
Reported in : (1924)ILR46All489
walsh, j.1. two questions are involved in this reference, the first is, whether the exemptions from attachment and sale in execution of a decree, contained in the proviso to section 60 of the code, apply to a mortgagee's decree for sale.2. i have had the advantage of studying the judgments of my two brothers. they fully cover the ground and it is not necessary to do so again. they differ fundamentally, and each judgment appears on the face of it to be unanswerable.3. on the one hand, the section distinctly prohibits the sale of this property in execution of a decree. on the other hand, as mr. justice mukerji's judgment shows, there is much in the section which is inappropriate to a mortgagee's decree for sale.4. where a section of an act is capable of two renderings, or is said to mean less or more than it says, it is a maxim of interpretation that one must look at the scope and object of the enactment. for this purpose it is helpful to recall the history.5. the rights of a mortgagor have always been the special care of courts of equity. the equity, of redemption was jealously guarded and could not be sold without an order of the court and without the mortgagee in possession rendering an account. the codified law in india sought to give effect to the established principles of the english courts for enforcing a mortgage security, by the now repealed sections of the transfer of property act. great controversy having arisen as to the applicability of the provisions of the code .....
Tag this Judgment!Court : Allahabad
Reported in : 83Ind.Cas.705
sulaiman, j.1. this is a criminal appeal by yamin and barkat from an order convicting them under section 395 of the indian penal code and sentencing them to 5 years' rigorous imprisonment each.2. there can be no doubt that on the 24th of august 1923 a very serious and deplorable communal riot took place at saharanpur. it is neither necessary to go into the history of that riot nor to give any details of it. the present appellants were charged with having been concerned in the looting of the shop of the complainant rupchand. rupchand's statement is that at about 3 or 4 o'clock on that afternoon he was at his shop when a great gathering of muhammadans took place in the bazar. they were taking out their akharas. he says that he saw a crowed of 50 or 60 muhammadans coming from the halwai's quarter crying ' kafiron ko mar lo' when he saw them he naturally got frightened, locked his shop and went straight away to his home which is at some distance from the shop. he did not actually see his shop being broken into or looted. he remained at his house for 2 or 21/2 hours and then, when he heard that things had settled down, he went to his shop and discovered that it had been broken into and looted. there is absolutely no reason to doubt the evidence of rupchand and i accept it in its entirety. it may, therefore, be taken for granted that rupchand saw a large crowed of 50 or 60 muhammadans shouting that non-muhammadans should be beaten, and that it was on account of the fear to his .....
Tag this Judgment!Court : Allahabad
Reported in : 83Ind.Cas.923
sulaiman, j.1. this is a plaintiff's appeal arising out of a suit for recovery of possession of immoveable property and mesne profits. the plaintiff also offered to let the defendants nos. 1 and 2 redeem him if they chose to do so.2. the facts of this case are as follows: on the 5th july 1889 a mortgage-deed was executed by one dharamjit ostensibly in favour of tursi. it is not now disputed that this tursi was benamidar for sobha ram the real mortgagee. on the 27th july 1898 dharamjit sold the equity of redemption in the mortgaged property to ganga ram and dhanwant. it may be stated that although the sale-deed stood in the name of these transferees, the mutation of names was, subsequently, effected in favour of the sons of these persons. it is not necessary at this stage to state all the circumstances under which the mutation of names was effected in that way as that question has not been gone into by the court below.3. on the 20th december 1909, sobha ram the real mortgagee brought a suit for sale against the mortgagor dharamjit as well as his transferees ganga, ram and dhanwant. he also impleaded a prior mortgagee badri. the sons of ganga ram and baru mal were, however, not impleaded. it appears from the judgment in that case that the position taken up in defence by ganga ram and dhanwant was to put the plaintiff to strict proof of his allegations. it does not appear that there was any suggestion thrown out that the suit was defective on account of any non-joinder. the suit .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1924All667; 83Ind.Cas.664
ryves, j.1. this is an application in revision against an order of a magistrate of the first class of cawnpore made under section 133 of the criminal procedure code, which was upheld by the learned sessions judge.2. a katcha public road takes off from the grand trunk road near the village of sachendi and passes through it. at this part there are houses on both sides of the road.3. outside the house of ajudhia prasad and gokul there is an ancient tamarind tree, one branch of which overhangs the road and forms an arch over it, and the end of the branch almost rests on some houses on the other side, which, however, are described as in ruins and unoccupied. it is an old tree and has stood firm for very many 'years and has not caused any inconvenience or apprehension of danger to anybody.4. during the muharram of 1923 for the first time, some muhammadans had occasion to complain of this branch. they had built a tazia unusually high and carried it aloft in the usual fashion, and found it could not pass under this branch. they refused to lower it or to tilt it on to one side and demanded the removal of the branch. a breach of the peace seemed imminent but the sub-inspector of sachendi fortunately was able to find a way out of the difficulty. but as he feared that there might be a recurrence of trouble on some future occasion when tazias were taken that way, he took action under section 133 of the code of criminal procedure. it may be noted that in the past on no occasion had the .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1924All715; (1924)ILR46All573; 82Ind.Cas.659
grimwood mears, kt., c.j. and piggott, j.1. this appeal arises out of a suit in which the plaintiffs asked that a certain portion of a recently constructed building, which had been put up by the defendant, might be removed inasmuch as it was interfering with a right of way which the plaintiffs had in respect of the houses they occupy. shortly, their case was that for a period of over 40 years they had been accustomed to travel by foot, with ekkas and carts over what is marked upon the map before us as 'public way bbbb.' they traced the origin of this public way by saying that at one remote period, round about 1864, the land was covered with houses, which, at some date not specifically stated, fell down, and that for a very long period of time there were marks of where the houses had been and portions of the ruined houses; that there arose a practice of passing over the site of the ruined houses, and that, for a period longer than is necessary to obtain a prescriptive right, ekkas and carts and foot passengers had uniformly, openly and without interruption passed to the houses lying to the east along this denned route. recently the defendant having purchased the land, has erected buildings upon it. the particular building which is said to interfere with the right of way is the smaller southern rectangular building. according to the map, it completely blocks out the old route and a new-road appears to the south and is indicated by letters yy, but the plaintiffs' complaint is .....
Tag this Judgment!Court : Allahabad
Reported in : 84Ind.Cas.599
lindsay, j.1. my learned colleague and myself are agreed that the decree given by the court below in this suit is erroneous but we differ, unfortunately, as to the relief which the mortgagee-plaintiffs are entitled to obtain. the principal facts are set out in my learned brother's order, but i desire to lay particular stress on the position and constitution of the family to which the mortgagors belonged and for this purpose reference must be made to the award made by moulvi farid-ud-din and munshi shaikh shams-ud-din on the 26th july 1897. this document is to be found in part iii of the printed record of this case. reference must also be made to a further award by muhammad rahmat ullah in the year 1901, which is to be found in the printed record of first appeal no. 193 of 1915, (see the appellants book, page 10 et seq).2. to deal first with the award of the 26th july 1897. this document sets out in detail the constitution of the family to which the mortgagors belong. although a muhammadan family, it is declared to be a joint family and it is clearly stated that although the members incurred debts and hypothecated properties which, stood recorded in their own names the entire property of the family was joint property and those persons whose names were entered in the public register did not acquire any separate rights.3. the following extract from this award maybe quoted:all lived as members of a joint family and the entire business of all of them was joint. no sort of .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1924All735; (1924)ILR46All549; 79Ind.Cas.327
lindsay and kanhaiya lal, jj.1. this appeal arises out of a suit for pre-emption, and the question for consideration is whether the plaintiffs are entitled to claim pre-emption in respect of the property in dispute. the property in question comprises a certain zamindari share in pargana kariat medha in the district of jaunpur and was sold by gay a din singh, the defendant no. 12, in favour of the defendants nos. 1, 5, 10 and 11 for rs. 1,300, on the 25th of february, 1919. the parganas constituting the district of jaunpur were evidently recast some time after the permanent settlement of 1795, and pargana kariat medha is evidently identical with or included, in pargana karindah, referred to at pages 185 and 245 in the duncan records of 1795.2. the allegation of the plaintiffs was that there was a custom of pre-emption prevailing in the village and that the real sale consideration was rs. 1,025. the trial court found that there was a custom of pre-emption in the village as recorded in the wajib-ul-arz of 1883-84, but it was inapplicable to the property in question wherein the vendor possessed only the 'rights of a mohlamim.' with regard to the amount of sale consideration the finding of the trial court was that the amount mentioned in the sale-deed was correct. the lower appellate court upheld that decree.3. the main point for consideration in this appeal is whether the rights of a mohtamim, as recorded in the settlement of 1883-84, are transferable rights of a kind to which .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1924All625; 83Ind.Cas.782
lindsay, j.1. the plaintiff in the suit out of which this appeal has arisen is one lala janeshar das and the defendant musammat phul kunwar alias phulwanti run war is the widow of the plaintiff's deceased brother lala badri das.2. the father of the plaintiff and lala badri das was one lala paras das,who died on the 2nd of may 1903. paras das, in addition to the plaintiff and badri das, left another son named dharam das who died several years before the present suit was brought.3. at the time of their father's death badri das and janeswar das were minors.4. on the 16th of november 1902 lala paras das executed a will dealing with all the property belonging to himself and to the joint family. he executed a codicil to this will on the 12th of march 1903 and a second codicil on the 17th of april 1903.5. the will and the codicils were deposit- ' ed in the office of the district registrar of saharanpur and were opened in. the presence of one girdhari lal on the 9th of may 1903. girdhari lal, under the will of paras das, had been appointed the guardian of his two minor sons badri das and janeshar das and it is proved that girdhari lal was a witness to the first and second codicils though he does not appear to have witnessed the will of the 16th of november 1902.6. on the 15th june 1903 dharam das, the eldest son of paras das, filed a suit for partition in the court of the subordinate judge of saharanpur. that suit was numbered as suit no. 96 of 1903 and a certified copy of the plaint .....
Tag this Judgment!Court : Allahabad
Reported in : (1924)ILR46All575
lindsay, j.1. the plaintiff in the suit out of which this appeal has arisen is one lala janeshar das and the defendant musammat phul kunwar alias phulwanti kunwar is the widow of the plaintiff's deceased brother lala badri das.2. the father of the plaintiff and lala badri das was one lala paras das, who died on the 2nd of may, 1903. paras das, in addition to the plaintiff and badri das, left another son named dharam das who died several years before the present suit was brought.3. at the time of their father's death badri das and janeshiar das were minors.4. on the 16th of november, 1902, lala paras das executed a will dealing with all the property belonging to himself and to the joint family. he executed a codicil to this will on the 12th of march, 1903, and a second codicil on the 17th of april, 1903.5. the will and the codicils were deposited in the office of trie district begi&trar; of saharanpur and were opened in the presence of one girdhari lal on the 9th of may, 1903. girdhari lal, under the will of paras das, had been appointed the guardian of his two minor sons badri das and jaaeshar das and it is proved that girdhari lal was a witness to the first and second codicils though he does not appear to have witnessed the will of the 16th of november, 1902.6. on the 15th of june, 1903, dharam das, the eldest son of paras das, filed a suit for partition in the court of the subordinate, judge of saharanpur. that suit was numbered as suit no. 96 of 1903 and a certified copy .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1924All915; 82Ind.Cas.594
mukerji, j.1. these two connected appeals nos. 1524 and 1525 of 1922 may be disposed of by the same judgment.2. two different plaintiffs brought two different suits out of which these two appeals have arisen for the ejectment of the same set of tenants from lands in two different mahals, except for this difference, the case is the same in both the appeals.3. two points require to be decided. one is whether the appeals, when lodged before the learned district judge of mainpuri, ought to have been admitted as within time and should not have been dismissed as barred by limitation. the second is whether, in the circumstances, the defendants-respondents are liable to be ejected.4. on the first point it appears that the plaintiffs' suit for ejectment failed in the court of the assistant collector. the suits were suits for ejectment of a tenant under section 58 of the tenancy act. the defendants pleaded, inter alia, that they were under-proprietors and could not be ejected. the suits having been dismissed the plaintiffs appealed to the commissioner. no question as to the jurisdiction was raised before the commissioner. after certain remands the learned officer decreed the appeal and decreed the suits.5. the defendants went to the board of revenue and the board held that the appeals were, wrongly laid before the commissioner and directed the commissioner to return the memoranda for presentation to the proper court. the memoranda were returned on the 11th of april 1922, and were filed .....
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