Court : Kolkata
Reported in : (1878)ILR3Cal199
J.W. Colvile, J.1. The respondent in this case is the only son of one Toofani Singh, and, the family being governed by the law of the Mitakshara, is joint in estate, in the strict sense of the term, with his father. On January 28th, 1863, the father being indebted to the appellant to the amount of Rs. 5,000, executed to him a Bengali mortgage bond for securing the repayment of that sum with interest at the rate of 12 per cent, per annum. The appellant afterwards put this bond in suit, and on May 30th, 1864, obtained a decree against Toofani Singh for the sum of Rs. 6,328-13-8. He took no proceedings to enforce this decree, which was in the form of an ordinary decree for money against the property especially hypothecated; but in September, 1870, caused 'the rights and proprietary and mokurrari title and share of Toofani Singh, the judgment-debtor,' in the joint family property, which is the subject of this suit, to be put up for sale in two lots for the realisation of the sum of Rs. 11,...
Tag this Judgment!Court : Kolkata
Reported in : (1878)ILR3Cal265
Macpherson, J.1. In this case the facts, which I find to be proved, are, that the defendant Gopalkisto Paulit came to the plaintiff's place of business in Calcutta, and there got from him the jewellery, which is the subject of this suit, taking it away and giving for it a receipt in which the prices of the articles were mentioned, and it was stated that they were taken on ten days inspection. He said, he was taking the jewels on inspection, and would purchase if he did not return within the ten days. But I do not consider it proved that he ever said he would send them up to Moorshedabad or to Baboo Poolinbehari Sen.2. I believe that the plaintiff allowed him to take away the jewellery, because he said he wished to take it with a view to purchase on ten days' inspection, and would buy if he did not return within that time, because he deposited two thousand rupees, and because Koylash Chunder Sircar, a cashier in the employment of Moharaja Jotindro Mohun Tagore, said, that he was a respe...
Tag this Judgment!Court : Kolkata
Reported in : (1878)ILR3Cal293
White, J.1. This was a suit brought by the special respondents against the special appellants (who are grouped together as first party defendants in the first Court) to avoid an undertenure in certain villages, part of an entire mehal, which the respondents bad jointly with second party defendant purchased at a Government revenue sale, and which villages, on partition, fell to the share of the respondents. The written statement of the added defendants, Sohina Bibi and Nowa Bibi and Korban Ali, which embodies the case of the special appellants, after stating that a certain portion of the lands claimed are not in their possession or belong to their undertenure, as regards the rest of the disputed lands (comprising 6 kanees 5 gandas), claims in effect the benefit of the exceptions in Section 37 of Act XI of 1859. It is alleged, first, that the undertenure comes within the first exception, as it is a mokurari taluk held at a fixed rent from the time of the Permanent Settlement; and, second...
Tag this Judgment!Court : Kolkata
Reported in : (1878)ILR3Cal232
Markby, J.1. In this case the plaintiff is a person who supplied seed to an indigo factory. While that seed was in the ground, the mortgagee of the owner of the factory took possession of it, and I assume that he also took the crop which was produced by the seed. The person who sold the seed is plaintiff in this suit, and he sues the mortgagee, Mr. McNaghten, and also the mortgagor, Mr. Pitzpatrick, to recover the value of the seed. Both the Courts below have held that the mortgagor is liable, but that the mortgagee is not. The plaintiff appeals.2. Now it is not necessary to advert to the exact terms of the plaint, as Mr. Bell, in arguing for the plaintiff, says, that he is not bound by the precise terms of the plaint, and has argued the general question whether, under these circumstances, the mortgagee in possession can be made liable for the price of the seed. I think he has failed to show that he can be made so liable.3. Before considering the Pull Bench decision that has been refer...
Tag this Judgment!Court : Kolkata
Reported in : (1878)ILR3Cal59
Kennedy, J.1. In this case I have no difficulty in determining that the Official Assignee ought not to make over the goods to the applicant, and to direct that he should defend any suit that may he brought against him. I am not so sure that the strongest ground of the assignee's claim is the reputed ownership clause, because so far as lean judge, on the facts, the insolvent was not only the reputed but the real owner. The allegation is, that the goods wore pledged to the applicant, who re-delivered them upon certain terms,--that is to say, that the insolvent should sell them; and, as I understood Mr. Appear to say, should apply the proceeds in liquidation of his debt. Now, as I take it, at common law, the interest of the pledge of goods ceased by his ceasing to have possession of them at least by his own consent, and the Contract Act does not seem to me to change this. It describes pledge as a bailment, and the natural inference is, that when the bailment comes to an end, the pledge do...
Tag this Judgment!Court : Kolkata
Reported in : (1878)ILR3Cal149
Kennedy, J.1. In this case it seems that I have omitted to give judgment on a question as to the right of a mother on partition amongst her sons to obtain a share' as representative of a deceased son, as well as a share in her own right. This question was reserved at the conclusion of the judgment, and I thought I had already delivered judgment upon it; but I had certainly considered the question and come clearly to the conclusion that she is so entitled.2. The Dayabhaga, Chap. III, Section II, para. 31, says--'The equal participation of the mother with the brother takes effect if no separate property has been given to the woman, but if any has boon given she takes half a share.' I do not think that the share which a mother takes as representing her deceased son is separate property which has been given to her. The Sanskrit of this text I find in the Vyavastha, 1st edition, page 420, to be which Baboo Shama Churn translates, I presume correctly, on the husband and the rest not giving s...
Tag this Judgment!Court : Kolkata
Reported in : (1878)ILR3Cal306
Kemp, J.1. (who, after stating the facts, continued as follows): In special appeal it is contended that the Judge committed an error in law in holding that in Assam a Hindu cannot divorce his wife, and that he has also erred in law in holding that a custom, if proved, cannot have the force of law so as to override the Hindu law; further, that if the Judge thought there was no evidence of the custom, he should have remanded the case to the first Court for the purpose of taking evidence on that point. We think that the Judge was right so far in holding that the Hindu law does not contemplate divorce; but we think that he was clearly wrong in holding, as he has done, broadly, that a custom, even if established, cannot override the general provisions of the Hindu law. There can be no doubt that the Hindu law has been affected in particular districts by particular usages, and these usages have hitherto been respected unless clearly repugnant to the principles of Hindu law; see page 387 of S...
Tag this Judgment!Court : Kolkata
Reported in : (1878)ILR3Cal17
Richard Garth, C.J.1. This was a suit for an injunction to restrain the defendants from infringing an invention of the plaintiff for the rolling of tea, leaf, the specification of which was filed, under the provisions of Act XV of 1859, on the 6th November, 1865; and the plaintiff also prayed for an account of the profits made by the defendants, and for damages.2. The question of infringement has virtually been decided by our judgment in the several rules obtained by the plaintiff on the one hand, and the defendant, W. Jackson, on the other, which was given on the 19th of August last. In the first of those rules we decided, that Jackson's invention, the specification of which was filed on the 25th of April, 1873, was substantially an imitation of Kinmond's; and it is admitted, that between that date and the commencement of this suit, the defendants have been making, using, and selling a number of machines in accordance with that specification. The parties have very properly consented, ...
Tag this Judgment!Court : Kolkata
Reported in : (1878)ILR3Cal1
Markby, J.1. The plaintiff in this case sued to recover possession of a mouza which ho alleged to be his ancestral property. He stated that the property had been sold to the defendant by his father in May 1862, that is twelve years, all but a very few days before this suit was brought; but that, as there was no necessity for the sale, it was void, and not binding on him, the plaintiff.2. The plaintiff claimed to belong to a family governed by the Mitakshara law. There was some dispute about this, but this point has been finally settled in favour of the plaintiff.3. It has also been argued that this property is not to be considered as ancestral, because, though it belonged to the grandfather of the plaintiff, the father of the plaintiff made a partition of the family property with his own brother, and the mouza in suit, when it fell to the share of the plaintiff's father, belonged to him absolutely as his separate property, and his son did not on his birth acquire any interest therein. ...
Tag this Judgment!Court : Kolkata
Reported in : (1878)ILR3Cal298
Jackson, J.1. This is an appeal from the judgment and decree of Mr. C.T. Manson, Deputy Collector, also called Extra Assistant Commissioner, of Rajmehal, which is admittedly and entirely within the Sonthal Pergannas. The appeal is valued at Rs. 5,922.2. By Act XXXVII of 1855 of the Governor-General in Council, the Sonthal Pergannas were removed from the operation of the general laws and regulations of the Bengal Code, except so far as was thereinafter provided.3. By Section 2 of that Act1 I the administration of civil justice was vested in officers to he appointed by the Lieutenant-Governor of Bengal. There was a proviso that all suits beyond the value of Rs. 1,000 were to be tried and determined, according to the general laws and regulations, in the same manner as if that Act had not been passed.4. The 4th section 2 declared that all decisions in civil suits passed by such officers to the extent of the powers conferred on them were final, and it was made lawful for the Lieutenant-Gove...
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