Privy Council Cases

Rajcoomaree Dassee Vs. Gopal Chunder Bose and ors.

Court : Kolkata

Reported in : (1878)ILR3Cal515

White, J.1. Several objections have been taken by the appellant to the partition which was made by the Ameen in this case, and upon which the orders of the two lower Courts have proceeded. To none of them do I think that this Court can yield in special appeal, except that which complains that certain property has not been divided as directed by the decree. The property which has been thus dealt with by the lower Courts consists of a poojah dalan, certain rooms on either side of it, a courtyard adjoining the dalan, and the western wall of the courtyard, This property has not been divided, but ordered by the Courts below to remain joint.2. I think that, having regard to the form of the decree, it was not open to the Court in executing that decree to order that any part of the property should remain joint unless it was with the consent of all the co-parceners who were parties to the suit. It appears that in this case two of the co-parceners did consent to this portion of the property rema...

Mirza Ally Bebanee Vs. Syed Hyder Hoosein

Court : Mumbai

Reported in : (1878)ILR2Bom449

Pinhey, J.1. By the first clause of Section 108 of the Code of Civil Procedure an application may be made to set aside a decree passed ex parte against a defendant under Section 100, and by the second clause of the section it is provided that 'if it be proved to the satisfaction of the Court that the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall pass an order to set aside the decree.' In the present case I am satisfied that the defendant was prevented by sufficient cause from appearing when the suit was called on for hearing on the 12th February. The defendant has sworn in his affidavit in support of the application that he was not in Bombay when the plaint in this suit was filed on the 21st January last, as he went, four months ago, to his native place, Moradabad, in the North-West Provinces, for the recovery of his health, or, at least, for change of air. And it seems from the plaint that the plaintiff was unce...

Bemolasoondury ChowdhraIn and ors. Vs. Punchanun Chowdhry and ors.

Court : Kolkata

Reported in : (1878)ILR3Cal706

Kemp, J.1. In appeal before us the first ground taken that there is no such putnee talook as alleged by defendants has been virtually abandoned, indeed, in the face of the evidence, it is clear that this talook was in existence prior to 1806, in which year Upendro Narayan Chowdhry, zemindar, assigned it by way of maintenance to his grandsons Permanand Chowdhry and Lukhi Chunder Chowdhry ancestors of the present defendant No. 1. Its existence was also established by the decree in the suit of Saroda Gobind Chowdhry and Ors. v. Komul Ghose. The second alleged ground of action is equally untenable, because any possession which may be given, or be said to be given, under the Butwara Law can have no force against third persons who wore no parties to it.2. By a butwara the rights of undertenure-holders are in no way affected, and though, as between shareholders, the assignment of specific lands to each share-bolder has binding effect, yet such assignment docs not of itself entitle the shareho...

In Re: Tukaram Vithal

Court : Mumbai

Reported in : (1878)ILR2Bom527

1. The Court concur in the ruling and the reasons given for it by the Second Class Magistrate of Nasik, Rav Saheb Shridhar Gundo, viz., that Clause 1 of Section 74 of the Municipal Act, Bombay, No. VI of 1873, applies only to the second clause of Section 39 of the same Act....

Sheo Gholam Sahoo Vs. Rahut Hossein

Court : Kolkata

Reported in : (1879)ILR4Cal7

Ainslie, J.1. If the money and property was sufficient for the satisfaction of the decree, it was not necessary for any further proceedings to be taken in execution. So far as the money is concerned, when the appeal was dismissed, it must be taken to have been transferred to the credit of the decree-holder, and the Court should similarly deal with the jewels pledged, converting them into cash for his benefit.2. The District Judge reversed the order of the first Court on the ground that the decree was barred by limitation, but we are of opinion that no question of limitation arises.3. The appeal must be decreed with costs, and the order of the Court of first instance restored....

Shamavahoo Vs. Dwarkadas Vasanji and ors.

Court : Mumbai

Reported in : (1888)ILR12Bom202

C. Sargent, J.1. This suit came before the Court for further directions on the 26th February last, in order that a finding might be recorded on certain questions arising out of the will of the late Gokuldas Tejpal, and which have since been raised in the following issues numbered 33, 34, 35 in this suit:2. Whether the infants Sundardas and Narrondas, sons of Dwarkadas Vasanji, or either of them, take any and what interest in the residuary estate of the late Gokuldas Tejpal in the event of their not being adopted?3. Whether Shamavahoo is bound to accept the infant Sundardas in adoption upon the conditions mentioned in the petition of Mathuradas Lowji?4. Whether, in the event of her refusing to adopt upon such conditions, the Court can and (if so) will execute the trust (if any) reposed in Shamavahoo?5. The question raised by the first of these issues turns upon the construction to be put upon the fifteenth clause of the will, which is in the following words:During my lifetime, or subseq...

Chunder Nath Chowdhry Vs. Tirthanund Thakoor and anr.

Court : Kolkata

L.S. Jackson, J.1. Who, after stating the facts of the case as above, and having observed that there Could be no doubt that the purchase by Koomar Ali was made on behalf of the first defendant, and that Annopoorna having survived Gournath, the purchaser of the latter's reversionary right took nothing, proceeded as follows:2. Both the Courts below have dismissed the suit. The 'fudge in the third paragraph of his judgment says: 'It is quite unnecessary to go at length into the question of limitation which the Subordinate Judge has discussed; it seems to me that the revenue sale, as a bare fact by itself, utterly bars the suit. In the first place, when it occurred it may be doubted whether Kristammd was the person responsible for the revenue, for he was merely Annopoorna's patnidar, and at the instance of the father of the plaintiff', a competent Court bad declared that the patni title would only last for Annopoorna's lifetime. According to plaintiff's own allegation, she died on 21st Fob...

Sheikh Khoorshed HosseIn and ors. Vs. Nubbee Fatima and ors.

Court : Kolkata

Reported in : (1878)ILR3Cal552

Ainslie, J.1. In special appeal it is contended that the defendant is not entitled to execute the decree at all; and if entitled, that she is haired by limitation.2. With regard to the first point, we arc of opinion that a decree for partition is not like a decree for money or for the delivery of specific property, which is only in favour of the plaintiff in the suit. It is a joint declaration of the rights of persons interested in the property of which partition is sought, and having been so made, it is unnecessary for those persons who are defendants in the suit to come forward and institute a new suit to have the same lights declared under a second order made. It must he taken that a decree in such suits is a decree, when properly drawn up, in favour of each shareholder or set of shareholders having a distinct share. In the present instance there being fortunately only two parties, there was no room for ambiguity in the drawing up of the decree.3. On the question of limitation, we t...

imperatrix Vs. Gowdapa BIn Venkugowda

Court : Mumbai

Reported in : (1878)ILR2Bom534

Melvill, J.1. In this case Gowdapa bin Venkugowda was accused before a First Class Magistrate, Mr. Ramchandra Bapuji, of an offence triable by the Magistrate, and was discharged by him under Section 216 of the Criminal Procedure Code. The District Magistrate thereupon called for the record of the case; and, not being satisfied with the reasons given for the order of discharge, sent the record to another First Class Magistrate, Mr. Campbell, with an order directing him to try the case afresh. Mr. Campbell convicted the accused; but, on appeal to the Sessions Court, the conviction was reversed, on the ground that it was not competent to the District Magistrate to revive the proceedings, after Gowdapa had been discharged by Mr. Ramchandra Bapuji. In support of this conclusion the Sessions Judge relied on the decision of the Calcutta High Court in the case of Mohesh Mistree and another I.L.R. 1 Cal. 282.2. The District Magistrate professes to have acted under Section 142 of the Criminal Pr...

Eliza Smith Vs. the Secretary of State

Court : Kolkata

Reported in : (1878)ILR3Cal341

Richard Garth, C.J.1. This was an appeal against an order of Mr. Justice Kennedy, dismissing an application made by the plaintiff under Section 63 of Act II of 1874.2. His Lordship considered that as a previous application of precisely the same nature had been made under the repealed Administrator-General's (Act (No. XXIV of 1867, Section 60) to enforce the same claim, and which had been heard and decided against the applicant, she was barred by Section 13 of the new Civil Procedure Code (Act X of 1877) from renewing the application.3. There is no doubt that, in the years 1871 and 1872, Mrs. Smith did apply to the Court under Act XXIV of 1867 to obtain the sum now claimed, which application was refused; and that, in the year 1873, another application for the same sum was made by her to Mr. Justice Macpherson, which was also refused.4. A further application for a review of his order was then made to Mr. Justice Pontifex, which was unsuccessful; and another similar application was afterw...