Court : Kolkata
Reported in : (1876)ILR1Cal1
Mitter, J.1. From the foregoing statement it is clear that the defendant put the legality of her marriage, and consequently the legitimacy of her son, upon a social custom obtaining among her caste people.2. The contention raised in special appeal is that the decision of the lower Court, both on the question of the validity of the marriage and the heritable rights of an illegitimate son of a sudra, is erroneous in law; and I am of opinion that this contention is valid. After having expressed his opinion that an illegitimate son of a sudra under the Hindu law inherits his putative father's property, the District Judge, with reference to the question of marriage, says: 'But more than this I am not at all sure that the son is illegitimate; the defendant lived as his wife with Radhoo for twenty years, and still asserts that she was married to him. The marriage therefore may, I think, be presumed, and the disproof of it lies upon the plaintiff. I cannot say that he has succeeded in disprovi...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal198
Macpherson, Offg. C.J.1. In this case it appears that upon the 15th of September 1873, Baboo Nuffer Chunder Bhutt, the Officiating Additional Subordinate Judge of Moorshedabad, sitting as a Court of Appeal, reversed the decision of the Munsif of Jungipore. On the 30th of May and 1st of June 1874, Baboo Nuffer Chunder Bhutt having ceased to hold the office of Additional Subordinate Judge of Moorshedabad, Baboo Nobo Kumar Banerjee, the Second Subordinate Judge of that district, admitted a review of the judgment of Baboo Nuffer Chunder Bhutt, and, reversing his decision, restored and confirmed the decree of the Munsif of Jungipore. It is objected in special appeal that Baboo Nobo Kumar Banerjee had no power to review the judgment of Baboo Nuffer Chunder Bhutt; that no sufficient reason was shown for his reviewing it; and that his proceedings ought to be set aside. For the respondent it is contended that whether the review was rightly or wrongly admitted, the matter is not one which can be...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal92
L.S. Jackson, J.1. The two questions raised in this appeal, which are of most importance, are, first, whether compound interest stipulated by the instrument on which the plaintiffs sue will run beyond the due date, which is the end of Choitro 1275; and secondly, whether, with reference to the Hindu law, the plaintiffs and the defendant being both Hindus, a larger amount of interest than the principal can be recovered. As to the first question, we can have no doubt, I think, that the terms of the bond appear clearly to import that there was to be payment of interest in two instalments,--viz., a half-yearly and yearly payment, the word including not only the particular year which was to elapse before the amount was due, but each year until the whole sum was recovered. As to the second point, no authority has been laid before us to justify our adoption for Courts in the mofussil, of the rule of Hindu law that more interest than the principal could not be recovered. We are referred to a de...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal43
Phear, J.1. As to this claim the defendants maintain there has been no binding award made; and clearly, as it seems to me, the plaintiffs, on their own showing, cannot succeed on this footing alone.2. In the first place it is not the fact that all the items in the schedule were awarded by any arbitrators, and in the second place there is not a pretence for saying that the award of the 16th April made in respect of the Dumphaile Castle parcel was a decision binding on the defendants on the terms of the contract. Neither of the arbitrators, who assumed to make that award, was appointed by the defendants' agents; nor had the contract at that time been made a rule of Court, and therefore none of the provisions of the Common Law Procedure Act of 1854 (even assuming that they could be of any use to the plaintiff) applied. In other words, the defendants had not then appointed an arbitrator either actually, or constructively, and had in fact absolutely refused to do so.3. As to the award of th...
Tag this Judgment!Court : Kolkata
Reported in : (1878)ILR1Cal28
Macpherson, Officiating C.J.1. The answer to this question depends upon the construction to be put on the Dayabhaga of Jimutavahana, the founder of the Bengal school. The other authorities current in Bengal are all of them based on the Dayabhaga, and such differences as exist between them and the Dayabhaga scarcely ever involve conflicts of principle. According to the Dayabhaga, the whole theory of inheritance is founded on the principle of spiritual benefit conferred: and it is by that principle that questions relating to inheritance must be tested and determined see the judgment of the Full Bench in Guru Gobind Shaha Mandal v. Anand Lal Ghose Mazumdar 5. B.L.R. 15 the question now before us being no exception to this general rule.2. It appears to me that the Dayabhaga (with the exception of one clause, Chap, xi, Section 5, Clause 35, to which I shall presently refer at length) clearly shows that, where there has been no separation, uterine brothers take to the exclusion of half broth...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal53
R. Garth, C.J.1. I am of opinion that Markby, J., was perfectly right in refusing this application. It was not made to him in the form in which it is now made to us, to amend the original grant of probate. The application to him, the only one which can properly be made the subject of appeal to us, was for the purpose of obtaining in this Court a limited grant of probate, extending to goods in the presidency of Bombay; and the question is, whether Act XIII of 1875 enabled Markby, J., to make an order of that kind. I am of opinion that it did not. The Act, no doubt, was intended to remedy some of the inconveniences pointed out by Mr. Jackson. The preamble recites the purpose for which it was passed. It says that, 'whereas, under the Indian Succession Act, 1865, the effect of an unlimited grant of probate made by any Court in British India is confined to the Province in which such grant is made; and that it is expedient to extend over British India the effect of such grants, when made by ...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal74
Glover, J.1. Against this order the petitioner has appealed, and in support of his contention Baboo Kalimohun Doss has drawn our attention to certain texts of Hindu law as set out in Menu, to show that betrothal is really a marriage, and that a girl once promised to a particular man could not be given in marriage to another; we have also been referred to 1 Strange's Hindu Law, Macnaghten's Hindu Law, and Colebrooke's Digest.2. The right of the petitioner to have an injunction pendente lite depends on the nature of the remedy which a Civil Court would give in the suit, and if it could be shown that a decree for specific performance would necessarily follow proof of the petitioner's betrothal to the girl, an injunction might properly be granted, as without it the suit might, and very probably would, be infructuous.3. But I agree with the Subordinate Judge that Section 93, Civil Procedure Code, was never meant to apply to cases like this. As a general rule, a decree for specific performan...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal12
Richard Garth, C.J.1. This was a suit brought by the plaintiff, who, for some years previously to March 1874, appears to have been a retail dealer in sidhi and other excisable articles at Calcutta, against the Secretary of State for India in Council; and the object of the suit was to establish certain claims against the Government of India, the nature of which was not very clearly denned either in the plaintiff's statement or in the evidence.2. It is unnecessary, however, in the view which we have taken of the case, to enter into all the circumstances, which have been so carefully considered and commented on by the learned Judge in the Court below. Suffice it to say that, in substance, the plaintiff puts his claim in this way: He says--At the public auction, which was held by the Government officer on the 4th of March 1874, of licenses to sell certain excisable liquors and drugs, I became the highest bidder for the right to sell such liquors and drugs at five different shops at Calcutt...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal183
Richard Garth, C.J.1. The Judge of the Small Cause Court is right in thinking that the Small Cause Court has no jurisdiction, as the suit is clearly one which might and ought to have been brought under Section 98 of Bengal Act VIII of 1869....
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR2Bom469
Michael Westropp, C.J.1. In order to sustain this action, the plaintiffs were bound to show that they themselves had suffered some particular inconvenience by the conduct of the defendants: Baroda Prasad v. Gora Chand 3 Beng. L.R 295; S.C. 12. Cal. W.R., 160 Civ. Rul:), per Peacock, C.J., followed in Raj Luckhee Debia v. Chander Kant Chawdry 14 Beng. L.R., 173. The case of Jina Ranchod v. Jodha Ghela (l Bom; H.C. Rep. 1) does not seem to be inconsistent with this. The statement of facts in the report of that case is meagre, but we gather from the argument that some injury to the plaintiff, personally arising from the obstruction complained of, must have been alleged. The plaint in the present case having been read to us, we fail to perceive that any particular injury, resulting to the plaintiffs themselves, is alleged on their behalf; we must, therefore, affirm with costs the decrees of the Courts below which rejected their suit....
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