Court : Allahabad
Reported in : (1908)ILR30All321
john stanley, c.j. and karamat husein, j.1. this appeal arises under the following circumstances. the defendant karam ali khan had two wives, namely, musammat bhuri and musammat nannhi jan. musammat nannhi jan on the 4th august 1905 instituted a suit against her husband for the recovery of her dower, and on the 24th of november 1905 obtained a decree. on the 2nd of august 1905, that is, two days before the institution of nannhi jan's suit, karam ali khan transferred to his wife musammat bhuri certain property ostensibly in satisfaction of a portion of her dower debt. musammat nannhi jan proceeded to execute her decree and attached the property which was transferred to musammat bhuri. thereupon musammat bhuri filed an objection, but her objection was disallowed, and thereupon she instituted the suit out of which this appeal has arisen under section 283 of the code of civil procedure.2. the first court dismissed the suit, but upon appeal the learned district judge reversed the decision of the court below and decreed the plaintiff's claim.3. the main question which has been discussed before us is whether or not the learned district judge rightly laid the burden of proof on the defendant musammat nannhi jan. according to his judgment he found, in agreement with the court below, that the oral evidence was valueless, and held that the decision of the case turned on the amount of value to be placed upon the deed of sale in favour of musammat bhuri. then he gays: 'the burden of proof .....
Tag this Judgment!Court : Allahabad
Reported in : (2008)ILR30All352
karamat husain, j.1. before stating the facts of the case i get forth the following pedigree. it will show the relation of the parties to the suit, with the exception of musammat bhawani kunwar who is a transferee of jiwan sahai under the sale-deed of the 9th february 1892. the suit was instituted on the 14th december 1904. jiwan sahai. | ---------------------------------- | | | ram sahai. indar sahai, tirbeni sahai. | defendant (2). | | --------------------------------------------------- | | | | raj bahadur. ram bahadur = shyam bahadur, dhum bahadur, | saraswati kunwar. defendant (3). | madan mohan, dawand bahadur, defendant (5). defendant (4). khushwakt rai. | ------------------------------ | | ishri prasad. khemanand. | | sohan lal. ------------------------------ | | | | | | mithu misri chhote jawahir mulo kunwar, = nitanand, lal. lal. lal. lal. died 28-2-97. died de- | cember, | 1878. | -------------------- | |naraini kunwar. saraswati kunwar= died without issue ram bahadur, in 1889. died 25-3-02. | -------------------- | | himmat bahadur, bakht bahadur, plaintiff. plaintiff.2. the facts which have led up to this appeal are as follows:one malik muhammad ali khan obtained two decrees against ishri prasad and his brother khemanand. one was dated the 17th august, 1822, for rs. 23,348-3-0 and the other was dated the 20th august, 1822, for rs. 17,800, these decrees were put in execution from time to time, and a sum larger than that which was actually due was realized under .....
Tag this Judgment!Court : Allahabad
Reported in : (1908)ILR30All470
karamat husain, j.1. the facts which have given rise to this appeal are as follows:the plaintiffs brought a suit for their share, amounting to rs. 151-8-0, in an annuity which was a charge on a 7 1/2 biswa share in the village an walkhera for the years 1309, 1310 and 1311 fasli. the defendants resisted the claim on various grounds. the learned munsif dismissed the suit. he held that the judgment of this court, dated the 14th august 1905, did not operate as res judicata, inasmuch as the subject-matter in issue in the case in which that judgment was pronounced was not the same as in the present case. he remarks: 'i do not think (that) that judgment can operate as res judicata, the subject-matter being different, viz. for a different year's charge.2. the plaintiffs appealed to the district judge. their fifth ground of appeal was that 'the question of the liability of the defendant no. 1 to pay the plaintiffs is res judicata.'2. the learned district judge dismissed the appeal on the ground that the defendant no. 1 was not liable to pay the annuity to the plaintiffs, without deciding the plea of res judicata. i may mention here that the former suit was instituted in the revenue court, and that no objection was taken that the suit was instituted in the wrong court. the learned district judge under the provisions of section 206 of the north-western provinces rent act (act no. xii of 1881) disposed of the appeal as if the suit had been instituted in the right court. he remarked:it is .....
Tag this Judgment!Court : Allahabad
Reported in : 2Ind.Cas.421
banerji, j.1. this appeal arises in for ejectment under sections 58 and 63 of the agra tenancy act. the facts which are somewhat complicated are as follows. the defendant-appellant purchased at auction in 1900 the rights and interests of one data ram in the village birehru. this data ram was the zamindar of 4 shares out of 100 shares in the village. the revenue of the village was assigned to the predecessor-in title of the plaintiff. at the settlement which preceded the settlement of 1875, data ram refused to accept the assessment offered by the settlement officer and accordingly settlement was made with the assignees of the government revenue who were called muafidars, data ram and other persons similarly circumstanced being allowed a malikana allowance and permitted to continue to hold possession of their sir land. at the settlement of 1874 and 1875 data ram and others asked that settlement should be made with them. the assistant collector refused to grant their application and by an order, dated 1st october 1875, an extract from which is given in the judgment of mr. ganga sahai, dated 29th september 1898, on the record of this case, he decided as follows:i find that plaintiffs (data ram and others) are not entitled to the settlement, but only to be paid a malikana allowance of 10 percent on the jamabandi as found by the settlement officer at the time of the settlement, the khewat showing the distribution thereof, and also to the possession of their sir holding at certain .....
Tag this Judgment!Court : Allahabad
Reported in : (1908)ILR30All447
banerji, j.1. this appeal arises in a suit for profits brought against the lambardar by the mortgagee of a recorded co-sharer. the name of the plaintiff is also recorded in the revenue papers. the claim was resisted on the ground that the plaintiff had no 'proprietary right and that the defendant was in adverse proprietary possession. the court of first instance decreed the claim in part and this decree has been affirmed by the lower appellate court. the learned judge was of opinion that, having regard to section 201, sub-section (3), of the agra tenancy act, the court could not go behind the entry in the revenue record and was not competent to try the question of proprietary right raised on behalf of the defendant. the correctness of this decision is impugned in this appeal. section 201 of the agra tenancy act provides for suits for profits brought by two descriptions of plaintiffs: (1) those whose names are not recorded as having the proprietary right entitling them to bring the suit, and (2) those whose names are so recorded. as regards the first class of persons the section provides that the court shall proceed in the manner directed in section 199, that is to say, it may either require the plaintiff to institute a suit in the civil court to establish his right or it may determine the question of title itself, constituting itself for that purpose a civil court, the defeated party having a right of appeal to the district judge or the high court as the case may be. in the .....
Tag this Judgment!Court : Allahabad
Reported in : (1908)ILR30All490
john stanley, c.j.1. this appeal arises out of a suit for possession of a share in the village of kanai shibnagar in the district of bareilly and for mesne profits, the facts are these. one newal rai was the owner of this as well as other property. he died before the year 1872, leaving a widow musammat jaika and two daughters, namely, musammat bilaso and musammat hulaso. one banarsi das purchased the property in suit at a sale in execution of a decree obtained against musammat jaika. the defendants kashi prasad and bssdeo sahai are the brothers of bandrsi das, who is dead. five kachwansis of the property is in the possession of the defendants 3 to 8, and as to this portion the plaintiff's suit has been dismissed and we are not concerned with it in the present appeal. musammat jaika died on the 27th of november 1878, and after her death, her daughters bilaso and hulaso, sold of the property to musammat lachman and three others. a suit was brought by the vendor and vendees for possession of the village of hafizpur, not the village in dispute, and the suit was decreed on the 18th of may 1881, and on appeal the decree for possession was affirmed by the high court. musamcnat hulaso died in the year 1894 and her sister musammat bilaso died on the 15th of september 1895. musammat hulaso left a son majnun lal, and he on the 15th of jane 1904 sold the village in dispute to the plaintiff musammat inda kunwar. the present suit was instituted on the 11th of december 1905, so that it was .....
Tag this Judgment!Court : Allahabad
Reported in : (1909)ILR31All236; 2Ind.Cas.213
richards and karamat, jj.1. this appeal arises out of an application by musammat janki for a certificate under act no. vii of 1889. musammat janki is the widow of one shadi ram, and prime facie she would be the person entitled to a certificate under the act. her application however was opposed by kallu mal and others who filed objections setting up a will alleged to have been made by the deceased. a draft was produced which is a draft of a somewhat elaborate will. lachman sarup was produced on behalf of the objectors, and deposed that he had written out this draft (which we will hereafter refer to as ex. a.) at the dictation of the deceased. he says that he explained the contents of the will to him, that it too him two days to prepare the document, and that at the close of each day he read it to the deceased. a doctor named ram chandar was also produced and he corroborated lachman sarup and said that four or five days before his death the deceased handed him ex. a, which, he said, was a draft of his will. the deceased told him that he bad appointed him a trustee under his will and asked him to take the draft and have it copied out fair for his signature. the deceased died without ever having executed the will. he wrote a letter to the bank at meerut giving certain directions as to a sum of rs. 2,000 which he had in deposit with the bank which directions were strictly in accordance with his will. in this letter he says that he is making a will. it also appears that after the .....
Tag this Judgment!Court : Allahabad
Reported in : (1908)ILR30All505
karamat husain, j.1. the suit out of which this appeal has arisen was brought for recovery of possession of a plot of land. the suit was referred to arbitration on the 4th of march 1907. the arbitrators submitted their award on the 2nd of april 1907. on the 11th of april 1907, objections were filed by the defendants. one of the objections was that one of the plaintiffs pad died and that his heirs had not been brought on the record. the learned munsif on the 20th of april 1907, set aside the award and sent back the case to the arbitrators for decision, giving them time up to the 4th of may 1907. he said: 'the arbitrators have submitted their award. it is objected to on the ground, inter alia, that one of the plaintiffs had died during the arbitration and before the award, hence the award is illegal. i am of opinion that this contention must prevail. the plaintiff gopichand died two weeks before the 12th of april 1907. the arbitrators not only delivered and made the award on the 2nd of april 1907, but they examined witnesses on the 1st of april 1907, i.e., after the death of one of the plaintiffs. of this fact (i.e. the death of one of the plaintiffs) the other plaintiff, the defendants, and, possibly the arbitrators, could not have been ignorant. hence the award is defective, as the representatives of the deceased plaintiff had not been brought on the record before the case was heard and award made by the arbitrators. under these circumstances the ruling in chetan charan das .....
Tag this Judgment!Court : Allahabad
Reported in : (1908)ILR30All560
john stanley, c.j.1. this appeal has been laid before a full bench by reason of a conflict in the authorities upon a question raised in the appeal. the suit is one by the daughter of one bande ali to recover from her brother akbar husain and a number of other defendants, transferees from him, her share in the property of her deceased father. this property is situate in the district of bareilly and also in the district of bara banki in oudh. it appears that akbar husain transferred the bareilly property to the defendants nos. 2 to 8 and the bara banki property to persons from whom the defendant respondent ram bali acquired it by virtue of a decree for pre-emption. the suit in regard to the bareilly property was compromised, with the result that the claim in respect of that property was abandoned, and the suit proceeded as regards the bara banki property only.2. the first court decreed the suit. but upon appeal the lower appellate court reversed the decree and dismissed the plaintiff's suit, holding, on the authority of the case of ram raji v. dhup narain weekly notes 1885, p. 125 that the court in bareilly had no jurisdiction to pass a decree in the suit.3. from that decree the present appeal has been preferred. the questions in the case are whether the suit is bad for multifariousness and whether the subordinate judge of bareilly was justified in entertaining it after the compromise of the claim in respect of the bareilly property.4. there appears to be no doubt that under .....
Tag this Judgment!Court : Allahabad
Reported in : (1909)ILR31All136; 1Ind.Cas.763
richards and griffin, jj.1. the plaintiff in this suit seeks to set aside a waqfnama, dated the 2nd of november, 1902, executed by one musammat najiban, and for possession of a half share in property dealt with by the waqfnama, and for mesne profits. the plaintiff alleged that the execution of the deed was brought about by the undue influence of kalb husain, that najiban was insane when she executed the deed and that no valid endowment had been created (1) because the objects were not legal, and (2) because the endowment was illusory and really made for the benefit of kalb husain and his brother ataullah, the mutawallis appointed by the waqfnama. this appeal is closely connected with first appeal no. 341 of 1906 decide on the 27th november 1908, and also with another, first appeal no. 340 of 1906, which it has been unnecessary for us to decide inasmuch as the parties compromised it. the evidence in all these cases was by consent read en evidence in each case. the two connected appeals nos. 340 and 341 of 1908 arose out of suits to set aside a deed of sale, executed by musammat najiban on the 18th of february, 1903, in favour of kalb husain on the grounds of the insanity of masammat najiban and the undue influence of kalb husain. the case of the plaintiff, so far as the plea of insanity was concerned, completely failed, and we have given our reasons at length in first appeal no. 341 of 1903 for holding that the case founded on undue influence has also failed. the court below .....
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