Court : Allahabad
Reported in : 2Ind.Cas.464
..... the official trustee of bengal 8 c. ..... he also contends that he is entitled to interest on mesne profits and that inasmuch as the judgment-debtor had not acted in the exercise of a bona fide claim ho was not entitled to any deduction whatever from the mesne profits. ..... the construction we place upon them should be one clearly in accordance with section 211 and we hold that the decree-holder is entitled to mesne profits of the property from the institution of the suit until delivery of possession to him or until the expiration of 3 years from the decree whichever event ..... the decree of this court when it declared plaintiff appellant entitled to mesne profits might in our opinion be held to have before its mind the provisions of section 211. ..... in performing these acts he was acting rightly and properly and we think that the decision of the court below upon this portion of this case was right and proper. ..... this decision was, however, prior to the passing of the old code of civil procedure (act xiv of 1882). .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1916All68; 35Ind.Cas.718a
..... in the muzaffarnagar district in these provinces in order to get him out of the reach of major buck; that the latter took action on august 24th, 1908, under sections 11 and 12 of the punjab court of wards act, commencing his enquiry, and for the protection of the estate took possession of it; that iii obedience to the orders of his commissioner he gave up possession of the ..... lifetime on 9th november 1908, he executed a document, designated therein a 'trusteenamah,' framing rules for the management of the trust property and nominating six gentlemen to succeed him as trustees on his death; that four of these are among the plaintiffs; that one of them has died and the second plaintiff has been appointed in his place under the rules framed ..... waqf on september 1st, 1908, was a trustee of the aligarh college, one of the institutions which is benefited by the waqf, that he was, therefore, interested in the document and under rule 74 of the rules made by the inspector general of registration (which under section 69 of the registration act have the force of law) he was ..... again in that month offered the defence an opportunity of cross-examining the witness and that finally on 8th august 1913, the counsel for the defence stated clearly that he would not cross-examine unless the lost draft was found ..... we assume that this rule was duly published under section g9 (2) in the official gazette after approval by government, though this has not been shown to us and the registration manual does not .....
Tag this Judgment!Court : Allahabad
Reported in : (1916)ILR38All627
..... leasing for a term of six years was given to the trustees, and a provision introduced that in case one of the trustees should die, or be unable or unwilling to act, the official trustee of bengal should be appointed trustee in such trustees' stead. ..... sound, it is not pretended that during the life of the donor in the present case anything was done by him which would amount to delivery of possession of the properties comprised in the mortgage deed, or anything done by the trustees or by fatima begam alone, which would amount to proof of an acceptance of the gift, or of an election to take under the deed of the 5th of february, 1895, save what happened in a friendly suit instituted by the ..... it is further recited that the district judge, under the provisions of the 31st section of the act, viii of 1890, ordered the declarant to contract a debt of 16,000 rupees on the security of the property of the minors; and that, in compliance with that order and with a view to raise money to pay ..... the second of these suits, namely, that numbered 51 of 1908, the appeal in which is numbered 134 of 1913, was instituted by the respondents nawab saiyid hashim ali khan, and nawab kasim ali khan, the latter by his guardian, against this same mortgagee and one sultan mirza, claiming to be the ..... 121 of 1913, was instituted by mirza sadik husain khan, the appellant in both the present appeals, to enforce a mortgage, dated the 26th of june, 1900, executed in his favour by the third respondent in the first .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1917All160; (1917)ILR39All152
..... to litigate the question, they can supply him with funds or indemnify him against the costs in the event of failure, if he is unable to proceed for want of funds; but it would be contrary to the whole scheme of the insolvency act, if any one out of a large number of creditors was at liberty to start all kinds of questions and set the law in motion independently of the receiver. ..... we think, however, that unless the receiver has refused to move and to given a decision by which each of the general body of creditors has been aggrieved, there is no provision in the act which enables a creditor to make such an application to the insolvency court, and that his proper course is to apply to the receiver to set him in motion. ..... again, 'if there has been any misfeasance on the part of the trustee or the bankrupt, any creditor has a right under section 20 to apply to the court. ..... if the receiver fails to appeal when he ought, a creditor may clearly apply to the court under section 22, but the appeal if brought by the order of the court must be an appeal by the receiver.9. ..... it is perhaps as well to point out that where no receiver has been appointed and the judge is acting as receiver under the provisions of the act, the better course in a case where a dispute arises is for the judge, to make an order appointing a particular creditor to represent the interests of the general body of creditors. ..... the appeal in that case was an appeal against the decision of the official assignee or receiver.8. .....
Tag this Judgment!Court : Allahabad
Reported in : 37Ind.Cas.76
..... to litigate the question, they can supply him with funds or indemnify him against the costs in the event of failure, if he is unable to proceed for want of 'funds, but it would be contrary to the whole scheme of the insolvency act if any one out of a large number of creditors was at liberty to start all kinds of questions and set the law in motion independently of the receiver. ..... we think, however, that unless the receiver has refused to move and so given a decision by which each of the general body of creditors has been aggrieved, there is no provision in the act which enables a creditor to make such an application to the insolvency court, and that his proper course is to apply to the receiver to set him in motion. ..... again, if there has been any misfeasance on the part of the trustee, the bankrupt or any creditor has a right under section 20 to apply to the court'. ..... if the receiver fails to appeal when he ought, a creditor may clearly apply to the court under' section 22, but the appeal if brought by the order of the court must be an appeal by the receiver.10 ..... it is perhaps as well to point out that where no receiver has been appointed and the judge is acting as receiver under the provisions of the act, the better course in such a case where a dispute arises is for the judge to make an order appointing a particular creditor to represent the interests of the general body of creditors ..... the appeal in that case was an appeal against the decision of the official assignee or receiver.8. .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1918All176; 43Ind.Cas.180
..... it is further worthy of note that section 2 of act ix of 1893 repeals sections 7 and 10 of the carriers act (iii of 1865). ..... which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do,' still, the question arises, whether the act of god is hot the proximate cause of the loss and the alleged lack of diligence of the defendant nothing more than the remote cause. ..... sub-section (1) of section 72 of the indian railways act, 1890--we quote only so much of the section as is applicable to this case--provides that the responsibility of a railway administration for the loss or destruction of goods delivered to the administration to be carried by railway shall, subject to the other provisions of the act, be that of a bailee under sections 152 and 161 of the indian contract act, 1872. ..... it is plain that, in the case before us, the liability of the defendant must be measured, solely by the test formulated in sections, 151 and 152 of the indian contract acts this view accords with the decisions in sesham patter v. ..... at the place of destination, the, plaintiff need not prove how the loss occurred; the burden lies upon the bailee to prove the existence of circumstances which exonerate him from liability for the loss [trustees of the harbour, madras v. .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1918All309; 45Ind.Cas.451
..... construed as creating any sort of a trust, then it is a trust for the maintenance of the worship of the idol in a certain temple, but principally for the benefit of the trustees themselves, and these trustees are mahant hari das and his successors after him and grulab das and his descendants after him. ..... had succeeded to the interests of baghunath das, whatever they may hagre been, in the property in suit; but they set up a trust under which the descendants of gulab das were joint trustees along with whatever mahant for the time being had succeeded to the rights of hari das and of laohman das. ..... the same deed to the effect that three other persons interested in the mortgaged property as descendants of gulab das are 'not present here,' and the executants of (be deed undoubtedly purport to act for and on behalf of these alleged absent members of the family and to deal with the property as a whole, including the shares of the said absent members. ..... from the array of original defendants was a fatal objection to the maintainability of the entire suit, inasmuch as he had been impleaded after the expiration of the special period of limitation prescribed by section 31 of the indian limitation act (ix of 1908), within which the present suit was instituted. ..... this record at page a12 shows that baghunath das died on the 19th of january 1913, during the pendency of this suit in the court below. ..... the official translators of this court have been compelled to report that they are unable to prepare any .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1919All83; 58Ind.Cas.566
..... declare themselves before their death or if from any other circumstance the exercise of the power by the party who is entrusted with it becomes impossible, the court will substitute itself in the place of the trustees and will exercise power by the most reasonable rule;' vide page 1050, we think that the learned judge was right in appointing dharam narajan to the committee; the latter, though not a descendant of sital ..... in any other view of the law a trust could be defeated by a trustee or trustees by refusing to act or by miscomputing themselves or by their death, if by the terms of the trust the appointment to the committee had to be made from the ..... on the 17tb of november 1913, an application was made by three persons, namely gauri shanker, banke lal and ujagar lal, to the legal remembrance for permission to bring a suit in respect of the alleged wakf under section 92 of the code of civil procedure and permission was granted to them on ..... decree is not within the purview of section 92 of the code of civil procedure. ..... judge with regard to the delivery of trust property is challenged on the ground that it is ultra vires, as no such order can he made under section 92 of the code of civil procedure. ..... connected and arise out of a suit brought under section 92 of the code of civil procedure.2. ..... we think that clause (h) of section 92, civil procedure code, to the effect 'granting such further or other relief as the nature of the case may require' empowers a court to make such a decree .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1920All149; 60Ind.Cas.901
..... naturally reluctant to interfere with the exercise of decretion in such a matter on the part of a trial court, more especially after a government official has been appointed trustee and has presumably taken charge of the property, but we do not find it possible to uphold the order of the court below in this ..... is quite possible that, if this had been done, the court might, with the consent of the defendants to the suit, who are the entire body of trustees, have made arrangements for the submission of accounts pendente lite and the deposit of surplus profits in such a manner as fully to safeguard the plaintiffs in the event ..... it has not been alleged in this case against mohmmed askari personally, or any of the trustees, that ha or they are wasting the corpus of the property, and the court below had before it no allegation that the trustee, or any of them, were misappropriating the income of the property for purposes other than those laid down ..... protested that no case was made out for the appointment of a receiver; that it was neither just nor convenient to any one that the management of the trust property by the trustees should be interrupted, merely by the institution of a claim against the said property. ..... receiver, the case then went back to the trial court and it is not denied that mohammad askari himself suggested to the court that, if a receiver were to be appointed, the deputy commissioner of gonda, in his official capacity, would be the most suitable person for such appointment. .....
Tag this Judgment!Court : Allahabad
Reported in : 62Ind.Cas.732
..... was the property of the insolvent or at any rate under his disposition, it necessarily became the property of the receiver; but it is clear that the appellants are within the protection of section 55 of the act, which protests all transactions, unless of course they are in themselves acts of insolvency or fraudulent preference, entered into with the insolvent by third persons for valuable consideration and bona fide, namely, bona fide in the sense, that the person with ..... chuttan lal and the insolvent are set out in a very clear and able report by the receiver in the insolvency, dated the 28th of february 1920, the result of which is that, according to the view of the official receiver, chuttan lal was independently running the transport business from about the end of may 1919, chuttan lal and the insolvent have been elsewhere described as partners, but we do not think it necessary to express ..... had, by transferring the whole of his assets to chuttan lal, but in india it has to be shown that there was notice of the act of presentation of the petition; and inasmuch as no petition was presented up to the 1st of september, some six weeks after the transaction assailed in this case, no objection to the transaction would lie under that section, it is a pity, but it cannot be helped, inasmuch as it is provided by the legislature that a competing creditor should be allowed to endeavour to upset a ..... the leading base on the subject in england is reported as new, france and garrard's trustee v. .....
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