Court : Kolkata
Reported in : (1877)ILR2Cal130
Pontifex, J.1. I think the Court has power to grant this application, if the plaintiff's are actually paupers. The power to allow a case to be continued as a pauper suit is, I think, included in the power given to the Court to allow a, suit in forma pauperis to be instituted....
Tag this Judgment!Court : Kolkata
Reported in : (1878)ILR3Cal376
L.S. Jackson, J.1. The Munsif cursorily remarked upon the insufficiency of the stamp on which the petition of review was filed before the arbitrator. I should have thought that no stamp was required. He also thought that according to the provision of Section 378 of Act VIII of 1859 the order in rejection of the review was final. It seems to me clear that could not possibly be a ground of judgment in this case. [The learned Judge then alluded to the judgment of the lower Appellate Court and continued--]2. It has been contended before us in special appeal that the lower Appellate Court had no jurisdiction to make this order, inasmuch as the Munsif having made a decree in accordance with an award of arbitrators, that decree was by law final. And Baboo Mohesh Chunder Chowdhry referred us to Sreenath Chatterji v. Koilash Chunder Chatterjee 21 W.R. 248 in which judgment was given by the late Chief Justice Sir Richard Couch, of which the head-note is to the effect that Section 327 of the old ...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal202
Richard Garth, C.J.1. We are of opinion that the contract to pay interest at 10 per cent, per mensem, if the principal sum of Rs. 400 were not paid on September 6th, the duo date of the promissory note, is not in the nature of a penalty. It is true that this rate of interest is in the note called a 'defaulting rate;' but, notwithstanding this expression being used, the contract is in fact merely that if the sum of Rs. 400 he not paid on a certain day, it shall from that day bear interest at 10 per cent, per mensem, or, in other words, at 120 per cent, per annum. In such a provision there is nothing in the nature of a penalty more than there is in a provision, that the promissory note shall bear interest from the day of its date. The case seems to us to differ wholly from that class of cases in which a certain sum is agreed to be paid on a breach of contract, and therefore Section 74 of the Contract Act (IX of 1872) does not apply.2. But, taking the facts as found by the Judge, the effe...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal274
Jackson, J.1. During the argument we disposed of the first part of the objection taken by Mr. Ghose, who has, at our request, carefully and feelingly advocated the case on behalf of the prisoner. That objection was, that we had not before us an appeal such as is contemplated by Section 272 of the Criminal Procedure Code, inasmuch as the petition of appeal had not been preferred by the Government 'prosecutor or other officer, specially or generally appointed in this behalf.' It appeared, and still appears to us, that, under the authority conveyed by the Secretary's letter to the Legal Remembrancer, the appeal was duly made by one of the Government pleaders, and has been regularly and properly sustained before us by the counsel instructed by, and appearing on behalf of, the Legal Remembrancer.2. Mr. Ghose next contended, that in the first place Section 272 was not meant to apply, and did not apply to cases where the accused person has been tried and acquitted by the verdict of a jury; an...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal399
Richard Garth, C.J.1. On the first question raised in this reference, we are of opinion that the instrument on which this prosecution is founded is an instrument of transfer within the meaning of Article 38, Schedule II of Act XVIII of 1869.2. On the second question we hold that a Magistrate is bound, for the purpose of ascertaining whether any and what penalty should be imposed, to consider the question whether a person prosecuted under Section 29 of the Stamp Act had an intention to defraud the Government by using a stamp of less value than that required by law.3. A Collector has power to prosecute in every case coming within the provisions of Section 24, but lie is not to do so unless he shall have reason to think that there has been an intent to evade payment of stamp duty. If he does prosecute, the Magistrate is bound, under the terms of Section 29, to record a conviction, provided that it is proved that there has been a making, Ac, of an unstamped or insufficiently stamped instru...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal365
Markby, J.1. This suit was brought to recover possession of certain properties which the plaintiff alleged to be partly brohmuttur and partly debuttur, the latter being dedicated to certain deities of the names of Kesbub Roy, &c;, and also for the possession of the deities themselves from the hands of the first defendant, Gopaul Acbarjea Gossami. Although the plaintiff described a part of the claim as her own brohmuttur properties, which have devolved upon her by right of inheritance, yet it appears from the judgment of the Court below that it was admitted by both parties that the whole of the claim consisted of properties which, without a single exception, belong to the aforesaid deities. The witnesses of the plaintiff also described them as debutter properties belonging to those deities. We shall, therefore, consider that the plaintiff in the Court below abandoned her claim upon her own title, and was satisfied to rest the whole suit upon her right to recover possession of the disput...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal226
Richard Garth, C.J.1. In this case the prisoner has been convicted of culpable homicide not amounting to murder committed on the 24th May 1861, and sentenced to transportation for life. Act XVII of 1862, under which the prisoner has been tried and convicted for this offence, has been totally repealed by Acts, VIII of 1868 and X of 1872. It has, however, been contended that, notwithstanding this total repeal of Act XVII of 1862, the prisoner may still be tried and convicted under that Act by virtue of the provisions of Section 6 of the General Clauses Act (I of 1868). We have considered this clause, and upon the whole we think that it does not apply to the present case. The conviction, therefore, must be set aside, and the prisoner discharged....
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal293
Richard Garth, C.J.1. As the Magistrate states that riot or affray was imminent, and that ho considered that the direction he gave tended to prevent, and was likely to prevent, a riot or affray, and as the facts stated by the Magistrate show that there were some grounds for the opinion which he expressed, we think that lie had power, under Section 518 of the Criminal Procedure Code, to make the order complained of. This Court, therefore, cannot interfere with it under Section 15 of the Statute 24 and 25 Vict., cap. 104; nor can the Court interfere on any other ground, as by Section 520 the order made is declared not to be a judicial proceeding, however much it may infringe upon what are, or may be (irrespective of this section), the undoubted legal rights of the petitioners....
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal262
Pontifex, J.1. The plaintiff in this case sues as widow of her deceased husband, Sreenath, for a partition of the estate formerly belonging to Ram Mohun, her husband's grandfather. Ram Mohun had executed a will dealing with this property. (The learned Judge read the clauses of the will set out, and continued) Under this will the plaintiff claims that, on the death of Umachurn, one of the testator's sons, his only son Sreenath, who survived him, became absolutely entitled be Umachurn's share, and that she, as Sreenath's widow, is now entitled thereto.2. This claim is resisted by the defendants, who are willing to admit that Sreenath became entitled under the original gift, but insist that his interest was defeasible under the gift over which I have read. It is, therefore, the interest of neither party to argue that the original gift to the male issue of the testator's sons is invalid as including objects too remote, or, in other words, objects to whom, under the law as now settled, the ...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal337
Richard Garth, C.J.1. The judgment which I am about to pronounce is concurred in by Markby and Ainslie, JJ.1. We are of opinion that the periods of limitation prescribed in the 2nd Sched. of the Act of 1871 are to be computed subject to the provisions contained in the body of the Act. The schedules form a part of the Act, and must be read together with it for all purposes of construction.2. We think that the word 'suits' in the Act of 1871 was not intended to include 'applications.' In the Act of 1859 the word might have had a more extended meaning; but in the Act of 1871 a distinction seems to have been carefully drawn between 'suits,' 'appeals,' and 'applications'; each of these subjects being separately dealt with, and in different divisions of the schedule.3. It appears to us, however, that, in the special appeal which is the subject of this reference, the Courts below were wrong in refusing the application of the decree-holder upon the ground that she was barred by lapse of time. ...
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