Court : Allahabad
Reported in : (1902)ILR24All532
1. In this case one Musammat Bholi Bibi instituted a suit against Binda Prasad and Sheikh Jhau, her son, for a declaration that certain shares in two villages were not liable to be sold in execution of a decree obtained by one Baijnath against her son, Sheikh Jhau. The lower Court dismissed the suit, and thereupon Bholi Bibi appealed, but died before the determination of the appeal. Musammat Jamna Bibi applied to the Court to be brought on the record in the place of Bholi Bibi, alleging that she was the assignee of the shares in the property in dispute under a parole gift made to her by Bholi Bibi prior to her death. The District Judge found that the alleged assignment was not proved, and refused the application. Hence the present appeal.2. The appeal came before a Bench of this Court, when a preliminary objection was taken by the learned vakil for the respondents to the hearing of the appeal, on the ground that the order of the District Judge being one under Section 372 of the Code of...
Tag this Judgment!Court : Allahabad
Reported in : (1902)ILR24All471
Blair, J.1. In this case the Magistrate in binding over a person to be of good behaviour under Section 110 and other sections, in prescribing the class of sureties required, has limited them to residents in the Municipal borough of Mirzapur. Having regard to the ruling of the late Chief Justice Sir John Edge, reported in I.L.R. 20 All. 206, and several rulings of the Calcutta Court to which my attention has been called, I find myself unable to say that it is not in the power of the Court in ordering securities to be given to assign some geographical limit within which such sureties must reside. It is obvious that sureties from a remote spot would not be in a position to keep an eye on or exercise any control over a person bound over. I think, however, in this case for reasons put before me, that the narrowness of the limit might impose upon the person to be bound over an inability to find sureties at all, and he might therefore be sent to prison because such persons who might be willin...
Tag this Judgment!Court : Allahabad
Reported in : (1902)ILR24All472
Banerji and Aikman, JJ.1. The suit out of which this appeal has arisen relates to certain money left in the firm of a banker of Benares by one Sita Ram Dikshit, a Marattha Brahmin governed by the Maharashtra school of Hindu law. He had two sons, Bishan Dikshit and Gobind Dikshit, both of whom pre-deceased him. Musammat Parbati is the widow of Bishan Dikshit, and Musammat Annapurna is the widow of Gobind Dikshit. Chintaman, the plaintiff, was, adopted by Musammat Annapurna after the death of her husband. Before that Musammat Parbati had adopted Sita Ram, the appellant before us, who is the son of Salu Bai, the daughter of Sita Ram Dikshit. Salu Bai is admittedly alive. Chintaman claims a half share of the money by virtue of his adoption by Musammat Annapurna.2. The suit was dismissed by the Court of first instance, but decreed in appeal by the lower appellate Court. It is conceded that by virtue of the adoptions made by the two daughters-in-law of Sita Ram Dikshit, the adopted sons coul...
Tag this Judgment!Court : Allahabad
Reported in : (1902)ILR24All479
Banerji and Aikman, JJ.1. The appellant got a decree for sale under the provisions of Section 88 of the Transfer of Property Act. The decree was for sale on redemption by the appellant of two prior mortgages, one simple and one usufructuary. He paid into Court certain sums for satisfaction of the prior mortgages, and applied for the sale of the property. The Court of first instance disallowed his application on the ground that the payments by him had not been made within the time prescribed by the decree. The decree-holder appealed. The learned District Judge dismissed his appeal, although not on the ground upon which the Court of first instance had proceeded. The learned District Judge states that the decree-holder had paid the principal only of the two prior mortgages. It is admitted by the vakil for the respondent that the learned Judge has fallen into error as regards one of the mortgages, viz. the simple mortgage, inasmuch as the record shows that the appellant paid not only the p...
Tag this Judgment!Court : Allahabad
Reported in : (1902)ILR24All481
John Stanley, C.J. and Banerji, J.1. The facts out of which this appeal has arisen are these. One Dharam Singh obtained a decree against Brij Bhukan Lal and others oh the 21st September 1895. That was a decree for sale upon a mortgage. After the sale of the mortgaged property the decree-holder obtained, on the 10th February, 1900, a decree under Section 90 of the Transfer of Property Act. In execution of this decree he caused a decree held by Brij Bhukan Lal and ors. against one Chajmal Das, dated the 9th September, 1892, to be attached. It is common ground-that the decree last mentioned was passed by the Court of the Subordinate Judge of Mainpuri, and was not in course of execution at the time when it was attached. It is also admitted that Dharam Singh by virtue of the attachment did not apply for the execution of the decree. It appears that Chajmal Das holds a decree, dated the 5th October, 1882, against Brij Bhukan Lal and ors. He came forward with an application to the Court which ...
Tag this Judgment!Court : Allahabad
Reported in : (1902)ILR24All483
John Stanley, C.J. and Banerji, J.1. This appeal arises out of a suit for contribution brought by the plaintiffs appellants under the following circumstances: On the 1st of June, 1878, one Naubat Singh executed a mortgage in favour of Mukand Siugh and Munna Singh, the predecessors in title of the defendants first party. The mortgage comprised a 5 biswa share in the village Muzaffra, and shares in three other villages. Naubat Singh, Sher Singh and the mortgagees Mukand Singh and Munna Singh were joint owners of certain property. On the 6th of June, 1878, that is, five days after the mortgage, a partition took place between these persons, under which the whole of the village Muzaffra, including, of course, the five biswas mortgaged under the mortgage of the 1st of June, 1878, was allotted to the share of Mukand Singh and Munna Singh. On the 28th of June, 1880, Mukand Singh and the heirs of Munna Singh, who had in the meantime died, obtained a decree upon their mortgage against Naubat Sin...
Tag this Judgment!Court : Allahabad
Reported in : (1902)ILR24All487
Blair and Aikman, JJ.1. The plaintiff sued for the redemption of a usufructuary mortgage, dated the 1st of May, 1890. The mortgagees pleaded that the mortgage in question did not apply to the land which was sought to be redeemed, and they alleged that in the land sought to be redeemed they had a tenancy. The Court of the Munsif held that the mortgage did apply to the plot in which the tenancy of the mortgagees lay, and gave the plaintiff a decree for redemption; but, having regard to the fact of the existence of the tenancy, declined to give him a decree for possession. The Court of first appeal agreed with the finding that the mortgage applied to the plot of which the mortgagees declared themselves to be, and in the absence of evidence by the plaintiff must be taken to be, tenants. The first appellate Court, however, held that the defendants by their act of accepting the mortgage of the game land had changed the nature of their possession, and that the plaintiff, when he claimed redem...
Tag this Judgment!Court : Allahabad
Reported in : (1902)ILR24All493
John Stanley, C.J. and Banerji, J.1. The suit out of which this appeal has arisen was a suit instituted by the plaintiffs to pre-empt certain villages. It appears that the defendant second party mortgaged the villages in dispute to the defendant first party on the 24th of July, 1890, by a deed of conditional sale. On the 12th of February, 1895, the defendant first party instituted a suit for foreclosure against the second party of defendants, and a primary decree was passed on the 25th of March, 1895. The order absolute for foreclosure was made on the 13th of February, 1896, and possession was obtained on the 10th of May, 1896. On the 4th of July, 1896, following, the present suit for pre-emption was instituted by the plaintiffs, who are co-sharers in the villages. They based their claim upon the terms of the wajib-ul-arz, to which we shall presently refer. The Court of first instance decreed the plaintiffs' claim; and thereupon an appeal was taken to the lower appellate Court, with th...
Tag this Judgment!Court : Allahabad
Reported in : (1902)ILR24All499
Blair, J.1. This appeal impugns the propriety of a decision of the Subordinate Judge of Moradabad dismissing the plaintiffs' suit under the following circumstances. The plaintiffs are the owners of a house adjacent to the site of a Hindu temple. Near their house stands in the temple inclosure a pipal tree, the branches of which extend over their house, and which has, of course, been growing there for many years. The plaintiffs, alleging that the branches of the tree afforded facilities for a thief to obtain entrance into their house, and endangered life and property, desired to cut those branches. They were prevented from so doing by the defendants. The plaintiffs ask that an injunction may be issued against the defendants, enjoining them not to offer obstruction to the cutting of those branches which spread over the plaintiffs' house. Both the Munsif and the Subordinate Judge have found that the pipal tree is an object of veneration to pious Hindus, and has been growing there for over...
Tag this Judgment!Court : Allahabad
Reported in : (1902)ILR24All501
John Stanley, C.J. and Banerji, J.1. This appeal arises out of an order of the District Judge of Cawnpore, remanding the case to the Subordinate Judge, under the provisions of Section 562 of the Code of Civil Procedure, for the determination of the suit on the merits. The facts are shortly as follows: One Lachmi Narain was the owner of the property which is now in dispute. He died leaving a widow Mukhta Kunwar, and the plaintiff respondent Narain Das claims to hold the property in dispute under a lease which was granted by Mukhta Kunwar in her lifetime. His name was recorded as lessee on the 17th of April, 1897, and he remained in possession until the 27th November, 1897. 'What the nature and the terms of the letting made by Mukhta Kunwar to Narain Das are have not been determined by either the Court of first instance or the lower appellate Court, and we are in ignorance as to these matters. Mukhta Kunwar having died on the 16th of July 1897, the present defendant, Sheo Kumar, claiming...
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