Court : Kolkata
Reported in : (1876)ILR1Cal466
Richard Garth, C.J.1. The first point which we have to decide is that which was argued before Phear, J. in the Court below, and his judgment upon which is reported in the January number of the Indian Law Reports I.L.R. 1 Cal page 47.2. The defendant contends, that the contract upon which this suit is founded is one of the class described in the 1st Exception of Section 28 of the Contract Act, and, consequently, that as the dispute which has arisen between him and the plaintiffs remains undecided by arbitration, no suit can be brought upon it, except for a specific performance of the agreement to refer. Certainly, as Phear, J. very truly observes, the plaintiffs, if this were so, would be in an unfortunate position, because the defendant has distinctly refused to refer the dispute to arbitration; and, as according to the present law, no suit will lie to compel him to refer, the defendant, if he is right in his contention, may, by his own breach of the contract, deprive the plaintiffs of...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal110
Markby, J.1. The Sessions Judge is quite right in supposing that this Court would not ordinarily interfere with the discretion of Magistrates, as to the amount of security to be taken in cases of this kind. The Magistrate is in a much better position than this Court for judging what would be the proper amount of security, which must vary with the danger to be apprehended and the means of the parties. But the Magistrate cannot make an order that is altogether unreasonable. Here the Magistrate, although there has been as yet no breach of the peace, and apparently no very strong determination to resort to violence, has required the parties to enter into bonds amounting altogether to upwards of Rs. 60,000. The parties do not appear to be wealthy; and had the security ordered been really required, in all probability it could not have been furnished. We find, however, that one of the parties, who has been accepted as surety for Es. 5,000, is described as a kotwal and another as a mookhtear, ...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal33
Richard Garth, C.J.1. We are of opinion that, with reference to the express terms of the written agreement entered into on the 12th of January 1876, the plaintiff distinctly undertook that he would, 'whenever required to do so, render just and true accounts, and give every other particular and information of all moneys, goods, and chattels, merchandise, and other products and things entrusted to him, or that might come into his possession, power, or custody, or under his control;' and we think that the defendant company ought to have been allowed to go into evidence to show that the plaintiff was not reasonably competent to the task which he undertook. In deciding thus, we act in accordance with the principle laid down in the case of Harmer v. Cornelius 5 C.B.N.S. 236 : S.C 28 L.J.C.P. 85. The passage as to the crossing--sweeper, quoted by the Judge of the Small Cause Court from the judgment of Willes J. has no application to the present case. The crossing-sweeper is stated to have bee...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal150
Richard Garth, C.J.1. We think that, having regard to the evidence, the lower Court has rightly held that the family of the plaintiff is still joint, and that there has been no partition of there family property as alleged in the plaint.2. That being so, it only remains for us to decide the question of law raised by the defendant, viz., that the present suit is not maintainable, and should be dismissed upon that ground.3. We think that this contention is well founded, and we find that the question has been settled by several authorities--Rajaram Tewari v. Lachman Pershad 4 B.L.R. A.C. 118 Sheo Churn Narain Sing v. Chukraree Pershad Narain Sing 15 W.R. 436 and Cheyt Narain Sing v. Bunwaree Sing 23 W.R. 395.4. The decision referred to by the lower Court does not support the view which the Subordinate Judge takes; in fact, it rather supports the contrary view, because it decides that one out of several members of a joint Hindu family is entitled to recover the whole of the joint property ...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal324
Richard Garth, C.J.1. It is now further contended that, assuming the plaintiffs are entitled to the shares, their present claim is barred by limitation. The plaintiffs (no doubt foreseeing this difficulty) have attempted to guard against it in their plaint by stating that the shares were held for them by Seedat in trust; and we observe that the learned Recorder has so dealt with the case, and has considered that, upon this ground, the suit is not barred by limitation.2. We feel great difficulty in adopting this view; and even if we could look at the transaction in the light of a trust, we do not see that there would be any answer to the plea of limitation.3. If the facts proved by the plaintiffs gave rise to any trust, it would clearly not be 'an express trust,' or, in other words, 'a trust for any specific purpose,' within the meaning of Section 10 of the Limitation Act. It could only be one of those implied trusts, which result from particular relations existing between parties not c...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal58
Richard Garth, C.J.1. I have felt considerable difficulty in arriving at a proper conclusion in this case.2. The question we have to decide is not only a very serious one to both parties concerned, but it has also an important bearing upon the relations which exist in this country between the owners and managers of large factories on the one hand, and brokers and others, who are in the habit of advancing money for the carrying on of those factories, on the other.3. His Lordship then stated the facts, and continued with reference to the objection to the stamp borne by the three letters of assignment given to the plaintiffs by Macrae:It may, perhaps, be convenient here that I should deal with a preliminary objection which has been made by the defendants. They contend that these documents, upon which the plaintiffs' claim depends, and without which it is of course impossible for them to launch their case, are insufficiently stamped, and, consequently, not receivable in evidence. It is sai...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal229
Pontifex, J.1. I think, in this case there is a substantial question of law within the meaning of the 5th Section of Act VI of 1874. if it had been intended to restrict appeals to questions of law arising only out of the facts concurrently found by the Courts below, it would have been expressly so stated in the Act. The application must be granted. Costs to follow costs of appeal to the Privy Council....
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal123
Pontifex, J.1. I have very little doubt that process of execution means actual process by attachment in execution of the judgment-debtor's person or property. The case of Obhoychurn Dutt v. Mudoosudan Chowdhry 5 Wym. 172 is opposed to this: but I prefer the decision in Shib Chunder Bhadoree v. Luckhee Debia Chowdhrain 6 W.R. Mis. 51. In my opinion mere notice of execution is not sufficient process for enforcing the decree....
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal128
Markby, J.1. In my opinion the officer was right in declining to receive the deposit. The applicant claims the benefit of Section 8 of Act VI of 1874 and Section 5 of Act IX of 1871, the 16th of November being the day on which the Court re-opened in the sense that that was the day upon which the Benches sat as usual for the first time. But those sections only apply to suits, appeals, and applications. No application was necessary in this case; the money is merely, brought to the officer of the Court, who receives it making the usual entries, and this could have been done on any day after the 23rd of October.2. I have enquired as to the practice, and I find that it has always been usual, when the last day falls during the period when the offices are closed, for the money to be brought in before the holidays commence.3. I am also asked to give permission that the money be deposited now. I do not think I have power to do that....
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal222
Markby, J.1. In this casts we think the judgment of the first Court was a right judgment, and ought not to have been disturbed by the lower Appellate Court.2. It appears that there were three brothers entitled to a certain property. A decree had been obtained against two of the brothers, Shib Prosad and Bhola Nath. Their rights and interests in the property were sold, and the defendant got into possession. The widow of one of the brothers then brought a suit for declaration of her title to one-third share of the property. An issue was raised whether that share was the right and interest of the plaintiff as alleged by her, or of Shib Prosad and Bhola Nath as alleged by the defendant. There wore other parties to that suit, but that does not seem to be material. After the death of the widow, the heir of her husband brought the present suit for possession. The decree in the former suit was set up as a bar to the present suit; and an issue was raised whether or no that decree was a bar to t...
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