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Sitanath Koer and ors. Vs. Land Mortgage Bank of India
Court : Kolkata
Reported in : (1883)ILR9Cal888
Mitter, J.1. The appellants before us are the five sons of one Chundermun Koer, viz., Silanath Koer, Gopinath Koer, Hera Lall Koer, Hurbuns Narain Koer, and Rughoobuns Narain Koer; and Mussamut Amilbutee Thakooranee, widow of Chundermun Koer, Hurbuns Narain and Rughoobuns Narain Koer are said to be minors. It was also stated in the course of the argument that the first four sons are at present adults, and were also adults on the 7th April 1873, when the mortgage bond, the origin of the present suit, was executed. There is some evidence in support of that statement. The lower Court has not expressed any opinion upon it, but we may take it as a fact proved that they were adults on the 7th April 1873. It appears that this bond of the 7th April 1873 was executed by Chundermun Koer and his eldest son Singheswar Koer, who was the defendant No. 6 in the lower Court, but who has not joined in the appeal which has been preferred to this Court. In this bond, which was for Rs. 10,000, a property ...
Tag this Judgment!Ram Kanie Mandal and ors. Vs. Gunesh Chunder Sen and ors.
Court : Kolkata
Reported in : 64Ind.Cas.550
1. Khoodiram Dey, the defendant No. 4, it the tenant of the plaintiffs. In execution of a decree for arrears of rent the plaintiffs attached 3 bighas of land which form the subject-matter of the present suit, as well as other lands, on the ground that this was the property of the judgment-debtor and held by him as their tenant. The other defendants intervened, stating that the 3 bighas had been sold to them by Khoodiram Dey and were situated in Chorghara, which belonged to another and neighbouring Zemindar.2. The Court in execution ordered the 3 bighas to be released from attachment on the ground that they were in the possession of the present defendants, the judgment-debtor Khoodiram having no longer any right, title and interest in them. The plaintiffs now sue all these parties, claiming the right to eject the defendants Nos. 1 to 3 on service of notices because they refused to pay the plaintiffs any rent.3. The case was originally tried in this Court solely on the ground of limitati...
Tag this Judgment!Pattakara Annamalai Goundan Vs. Rangasami Chetti and ors.
Court : Chennai
Reported in : (1883)ILR6Mad365
Innes, J.1. There was no force used (as far as I can discover) to prevent execution of the decree. But if there was fraud on the part of the debtor which prevented the judgment-creditor from realizing his debt, he can recover, although more than twelve years have elapsed from the date of the decree.2. There can be no question from the statement of facts by the Judge that he has rightly found that the creditor used due diligence to get his decree executed. It is only the peculiar provision of Section 230 of the Civil Procedure Code which holds out a temptation to dishonest debtors to stave off execution by every possible means for twelve years that could raise a doubt as to whether the creditor's right to recover is still subsisting. He has satisfied the ordinary provisions of the Limitation Act by the several applications he has put in for execution within the prescribed period of each other. But the debtor, by eluding the service of the warrant on several occasions, and by making appl...
Tag this Judgment!Kali Krishna Tagore Vs. Fuzle Ali Chowdhry and ors.
Court : Kolkata
Reported in : (1883)ILR9Cal843
Cunningham, J.1. In the suit out of which these appeals arise it is admitted that the plaintiff's father leased to the defendants on 30th Cheyt 1265 (12th April 1859) 4 deores 10 1/2 kanis of culturable land at an annual rent of Rs. 335-4.2. The lease provided that every fourth year a measurement should be made, either by the lessor or by the lessees, and additional rent paid for accretions to the land leased in 1859. It then provided for failure on the lessees' part to execute a kabuliat for the excess lands in the following terms:If at the fixed time stated above, we do not take an amin and cause measurement to be made, you will appoint an amin and cause the entire land of the said chur to be measured, and no objection on the ground of our recording or not our presence on such measurement chita shall be entertained, and we will duly file a separate dowl kabuliat for the excess land that will be found after deducting the settled land of the dowl executed by us from the land stated the...
Tag this Judgment!Hurrihur Mookerjee Vs. Kashi Nath Dass and anr.
Court : Kolkata
Reported in : (1883)ILR9Cal898
Cunningham, J.1. The point raised in this appeal is that the Court below was in error in holding that the defendant was not entitled to plead, nor was the evidence tendered by him admissible to show that the document mentioned in the plaint as a deed of purchase was only a security for money. There has been some wavering of opinion at different periods among the Courts in this country as to the law of evidence on this point. The law for some periods was laid down, so far as concerned this Court, by the Full Bench Ruling in Kashi Nath Chatterjee v. Chandi Charan Banerjee B.L.R. Sup. Vol. 383: 5 W.R. 68 in which it was held that, though evidence of a contemporaneous oral agreement was inadmissible to show that a document purporting to be an absolute conveyance was only a mortgage, yet that evidence might be given of the facts of the case, and of the subsequent conduct of the parties in order to show that this was the case.2. After the passing of the Evidence Act it was held by some learn...
Tag this Judgment!Dalsukhram Mahasukhram and ors. Vs. Lallubhai Motichand
Court : Mumbai
Reported in : (1883)ILR7Bom282
Kemball, J.1. The only objection taken in argument by the appellants against the decision of the District Judge is, that the sale of the house in the occupation of Bat Jadav was void by reason Saheb Lallubhai P. Parakh, Subordinate Judge of Ahmedabad.2. The plaintiff originally brought this suit against the first defendant, Dalsukhram Mahasukhram, to recover possession of two houses situated in the city of Ahmedabad. He alleged that he purchased these houses from the defendant under a registered deed of sale, dated 13th of November, 1873, for Rs. 900, and let them to him at an annual rental of Rs. 46 under an agreement of 3rd September, 1877. The defendant Dalsukhram admitted the execution of the deed of sale, but contended that it had been obtained fraudulently and without consideration, in settlement of certain time-bargain transactions between the plaintiff and Dalsukhram's brother, and that one of the houses was the self-acquired property of his late father, and by him devised to h...
Tag this Judgment!Harika Ramayyar Vs. Sri Vidya, Sri Sindu Tirtasami and anr.
Court : Chennai
Reported in : (1883)ILR7Mad61
Charles A. Turner, Kt., C.J. and Kernan, J.1. This suit, in which the tenant seeks to obtain a declaration of the rates at which he is entitled to receive a patta for Pasli 1289, is not barred by the suit brought in the preceding year by the landlord to enforce the acceptance of a patta on certain terms for the Fasli 1288. The circumstances of the holding may vary in each year, and the power to sue in the Revenue Court to enforce the acceptance of a patta is limited to the contract for the year. for which the patta is issued.2. Nor can we hold that a Revenue Court in this Presidency in suits for enforcing the acceptance of pattas has, under the Rent Act, power to determine title otherwise than incidentally to the limited jurisdiction conferred on it. Consequently, it cannot be held the matter now in issue, viz., whether the tenant has, by special contract, a right to hold at privileged rates, has been finally decided in that suit. The decrees of the Courts below are set aside, and the ...
Tag this Judgment!Prem Nath Sanyal and ors. Vs. Gour Hari Sanyal
Court : Kolkata
Reported in : (1883)ILR9Cal738
Richard Garth, C.J.1. This appeal being set down for hearing on the Peremptory Board, the appellant on Friday last applied to us by petition to withdraw the appeal.2. Mr. Branson for the respondents objected, that if the appellant was allowed to withdraw his appeal, the respondents, who had filed cross objections, ought to be allowed to prefer a cross appeal.3. As, however, it did not appear under what circumstances the cross objections had been filed, we gave Mr. Branson an opportunity of satisfying us, upon affidavit, that his clients were ready to appeal, and would have appealed in due time if the appellant had not preferred his appeal first.4. The case accordingly came on again on Monday last, when Mr. Branson produced an affidavit made by the two plaintiffs (the respondents), from which it appeared that they had brought the suit to recover a moiety of certain mouzahs; that their claim had been decreed as to two of those mouzahs, but dismissed as to the rest; whereupon the defendan...
Tag this Judgment!Somu Vs. the Queen
Court : Chennai
Reported in : (1883)ILR6Mad316
Charles A. Turner, Kt., C.J.1. The petitioner complained to the Magistrate that, in consequence of her having widened a path by which her cattle were taken to pasture, K. Sankara Bhatta, I). M. Sankara Narayana Bhatta, Shambu alias Muttu Bhatta, and Sanku came to her verandah, inquired why she had widened the path, and abused her for it; that Sankara Bhatta pushed her on the neck, and, taking a switch of Maderi, struck her twice with it on the back; and that, fearing the other accused would also strike her, she entered the house. She added that the marks left by the blows were still visible.2. She was examined on her complaint; and it is recorded that she repeated her charge against Sankara Bhatta, that she admitted the other persons accused had not assaulted her, but explained that she included them in the complaint because they had stood by and abused her while Sankara was striking her.3. The Magistrate made a note that there were marks of blows on the complainant's back.4. It will b...
Tag this Judgment!Narayana Sanabhoga and anr. Vs. Narayana Nayak and ors.
Court : Chennai
Reported in : (1883)ILR6Mad327
Innes, J.1. The contract being one of 1849 is not affected by the Transfer of Property Act, Sections 111 and 114 (see provisions of Clause C, Section 2), and the case has to be dealt with upon the principles upon which this Court has hitherto acted in a long series of decisions of which Kottal Uppi v. Edavalath Thathan Nambudri 6 M.H.C.R. 258 is a clear exponent.2. The proper course is to ascertain the intention of the parties and to give effect to that intention. Having regard to the entire contract, it appears to us that the clause of forfeiture for non-payment of rent was held over the defendant in terrorem and was not intended to be enforced.. It was thus what is styled a penal clause and will be relieved against. There is in the contract no clause of forfeiture upon alienation. It simply provides that the demises shall not alienate. The effect of this is limited to rendering the alienation inoperative against plaintiff.3. We agree to the decree passed by the District Judge and sha...
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