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Januk Singh Vs. BheknaraIn Singh and anr.
Court : Kolkata
Reported in : (1877)ILR2Cal439
White, J.1. It is to be observed that the present suit is not one in which a son is seeking to set aside a sale of ancestral property made by his father or to recover from a purchaser ancestral property which has been sold in execution of a decree against the father; but a suit in which a creditor, in whose favour a father has created a charge upon the ancestral immoveable estate, is endeavouring to enforce that charge against the share or interest of the sons in that ancestral estate, where the latter were no parties to the charge, and were also minors at the time of its creation. Such being the nature of the present suit, the proposition of law laid down by the officiating Judge amounts to this, that when a creditor brings such a suit, he is entitled to a decree against the sons upon simply proving the loan and the instrument of charge, and that his right to a decree can only be defeated, in the event of the sons showing that the money was advanced for an immoral purpose. In other wo...
Tag this Judgment!Roychurn Dutt Vs. Ameena Bibi
Court : Kolkata
Reported in : (1877)ILR2Cal386
Macpherson, J.1. The Court was of opinion that the Sheriff' was entitled to poundage upon the sum actually compromised for, and granted the application subject to such payment of poundage to the Sheriff. The Sheriff' to have the costs of the application....
Tag this Judgment!Kadumbinee Dossee Vs. Koylash Kaminee Dossee and ors.
Court : Kolkata
Reported in : (1877)ILR2Cal431
Kennedy, J.1. I cannot add the minor as a party plaintiff, and I think I must dismiss the suit, for it appears to me that the plaintiff has no interest in the land and no right to maintain this proceeding. These are two reasons why the minor should not be joined as a party plaintiff: first, because if he were made a party at this stage of the proceedings when several witnesses have already been examined, he would be bound by evidence given in his absence; and secondly, because his being made a party would, probably, expose him to an adverse decision which would be clearly binding on him; and I even think he would be incapacitated from hereafter seeking to disallow the plaintiff's costs of the suit from being paid out of his estate in administration. These costs would then be costs in a cause to which he would be a party, and specially made a party by order of Court. When I first heard of the existence of a son of Nundolal it occurred to me, on general principles, that the suit could no...
Tag this Judgment!Bhala Nahana Vs. Parbhu Hari
Court : Mumbai
Reported in : (1878)ILR2Bom67
Michael Westropp, C.J.1. It is not a necessary consequence of the circumstance that the spiritual motive for adoption, which exists among the Hindus of castes higher or other than the Talabda Koli caste, has no influence upon it, that its members may not lawfully adopt. The celebrity or perpetuation of the name and family of the adopter is recognized as a motive for adoption. Datt. Mim., Section 1., pl. 9.; Datt. Chand., Section 1., pl. 3. For instance, adoption, though not frequent in the Jaina community of Hindus, is practised and recognized, notwithstanding that they disbelieve in the efficacy of and discard the sraddha or paksha ceremonies; their solo motive for adoption being the perpetuation of the name and family of the adopter: Bhagvandas Tejmall v. Rajmal 10 Bom. H.C. Rep. 241;2. In the Subordinate Judge's Court the reasons for adoption in the Talabda Koli caste are found to be temporal, viz., the rendition by the adopted sons of domestic services, the commemoration, by those ...
Tag this Judgment!Parichat Vs. Zalim Singh
Court : Kolkata
Reported in : (1878)ILR3Cal215
J.W. Colvile, J.1. This is an appeal from an order made by the Judicial Commissioner of the Central Provinces whereby he has decreed to the respondent, the plaintiff in the suit, who does not appear upon this appeal, the possession of a certain village called Simeeria. The facts, so far as it is necessary to mention them, may be very shortly stated. The father of the appellant, the late Rajah Bahadoor Singh, was the owner of an estate consisting of five villages, one of which was this village of Simeeria. They had been held by his ancestors for a long time, but there seems to have been some doubt to what extent they were rent-free, though enjoyed by him as such. Ultimately, however, the Government of the North-West Provinces determined to recognise the right of the Rajah and his heirs to hold them in perpetuity as rent-free. Before that question (which is not material to the decision of the present appeal) was settled, the Rajah having then no legitimate son, but having an illegitimate...
Tag this Judgment!Ede Vs. Kanto Nath Shaw
Court : Kolkata
Reported in : (1878)ILR3Cal221
Kennedy, J.1. (after finding on the evidence in favour of the plaintiff) continued: The next question is with respect to the alleged alteration. As to that I fully believe the plaintiff's account of what occurred, and discredit the defendant's. However that may be, I do not think that the words amounted to an alteration or addition within the rule of English law. I think the alteration must be either something which appears to be attested by the signature or something which, as in Davidson v. Cooper 13 M. & W. 343 alters the character of the instrument. I was not referred to authorities on what constitutes an alteration, but on the principles upon which Pigot's case has been extended to contracts not under seal, I think it must be so. Endorsements, marginal observations, &c.;, &c.;, clearly do not come within that principle, and I think that this does not. Possibly, this would not be said to be a forgery within Section 464 of the Penal Code, Clause 2; and on comparison with Master v. M...
Tag this Judgment!Mora BIn Patlaji Vs. Gopal BIn Satu
Court : Mumbai
Reported in : (1878)ILR2Bom120
Michael Westropp, C.J.1. The plaint, which was presented upon the 25th August 1871, states that the cause of action accrued on the 30th day of June 1865. The defendant (who was the special appellant) contends that this is merely a suit for a declaratory decree, and, as such, falls within Clause 16, Section 1 of Act XIV of 1859, and, not having been brought within six years of the alleged accruer of the cause of action, is barred, inasmuch as, he argues, that six and not twelve years is the period of limitation for declaratory suits, even though they should relate to immoveable property. The members of the Division Court differed in opinion--Mr. Justice MELVILL holding that the plea of limitation was in time, and that Clause 16, Section 1 of Act XIV of 1859, and not Clause 12, Section 1, was the enactment applicable to such a declaratory suit as the present suit, which, therefore, was barred. Mr. Justice Nanabhai Haridas held that the plea of limitation was too late, and, further, that,...
Tag this Judgment!The Empress Vs. Dedar Sirkar
Court : Kolkata
Reported in : (1877)ILR2Cal384
Ainslie, J.1. We think that, under the circumstances stated by the Magistrate, it is not desirable that the Court should interfere in the present ease. In the 4th paragraph of his letter the Magistrate expresses a doubt whether the High Court is competent to call upon him to state the grounds upon which he fixed the amount of security. With reference to this, we desire to call his attention to a ruling of the Madras High Court, at page 450 of Mr. Prinsep's edition of the Code of Criminal Procedure (4 Mad., H.C. Rep., App. 47), an expression of opinion in which we entirely concur. It is there said: 'The imprisonment is provided as a protection to society against the perpetration of crime by the individual, and not as punishment for a crime committed, and being made conditional in default of finding security, it is only just and reasonable that the individual should be afforded a fair chance at least of complying with the required conditions of security.' If the Magistrate declined to fu...
Tag this Judgment!Khoblall Baboo Vs. Ramchunder Bose
Court : Kolkata
Reported in : (1877)ILR2Cal435
Kennedy, J.1. I had this case set down for settlement of issues, because one of the Judges of this Court has expressed an opinion that a suit on a decree of the Small Cause Court cannot be maintained in this Court. I knew that there had been decisions in cases in which the question was not argued, allowing such suits to he brought in this Court; and I applied to the Chief Justice to allow the case to be referred to a Full Bench. I came, however, to the conclusion that the course which had been allowed to prevail in this Court was a right one, and the Chief Justice thought that, under those circumstances, a Full Bench could not be granted. The difficulty has been raised by the decision of the Court of Queen's Bench in Berkeley v. Elderkin 1 E. and B. 805 in which it was held that no action could he maintained in the Superior Courts on a judgment of a County Court in England, Lord Campbell, the Chief Justice, gave a judgment in that case, in which ho went into several reasons why such su...
Tag this Judgment!Kellie Vs. Fraser
Court : Kolkata
Reported in : (1877)ILR2Cal446
Richard Garth, C.J.1. The appellant, Mr. Kellie, contends--1st. That this Court had no jurisdiction to confirm the award, and2ndly. That the authority of the arbitrators was revoked by both parties before the award was made.2. In support of the first objection, it has been argued that the only Court competent to confirm the award under Section 327 was the Court in which a suit must have been brought to settle the differences between the parties, if those differences had not been referred to arbitration; and that as the subject-matter in dispute was a tea garden at Darjeeling, and as both the litigants were resident there, the suit would have been a suit for land, and must have been brought in the Darjeeling district, and therefore that the Darjeeling Court was the only one capable of confirming the award.3. The answer to this contention on the part of Mr. Frazer was that the suit under such circumstances would not have been a 'suit for land' within the meaning of Clause VI of the Lette...
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