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Koylash Chunder Dass Vs. Boykoonto Nath Chundra and ors.
Court : Kolkata
Reported in : (1878)ILR3Cal619
L.S. Jackson, J.1. Answering simply the question put to us, we think we are bound to say that Article 75 of the Indian Limitation Act of 1877 docs not apply, according to its strict terms, to a suit brought upon a verbal contract. But it appears to us that the question does not really arise in the present suit, because we think plaintiff was not bound, but only had the option, to avail himself of the clause enabling him to sue at once for the whole amount due on the failure to pay the particular instalments, and in point of fact, the money did not otherwise become due except on the falling duo or arrival of the date of the successive instalments....
Tag this Judgment!Hasoon Arra Begum and anr. Vs. Jawadoonnissa Satooda Khandan and ors.
Court : Kolkata
Reported in : (1879)ILR4Cal29
Ainslie, J.1. We think that in the present case there can be no doubt that a suit does lie for the purpose of recovering the money which the plaintiff alleges to have been wrongly paid to the defendants under colour of an order made under Section 271 of Act VIII of 1859. We also think that the fact that the money was paid out of Court after the institution of the suit is one of no importance, although the plaintiff did not put in a petition by way of amendment to the plaint.2. It is unnecessary to comment upon the order made by the Subordinate Judge under Section 92 of the Code; but we think it quite clear that this case must now be taken as a suit to recover from the hands of the defendant money paid over to him by the Court during the pendency of the suit.3. The third issue has been treated by the Subordinate Judge as one involving only a question of law. This appears to be an error. The question whether the decree of the Shahabad Court could bind the property in the district of Saru...
Tag this Judgment!Ram Tarrun Koondoo Vs. HosseIn Buksh
Court : Kolkata
Reported in : (1878)ILR3Cal785
Markby, J.1. It is impossible to distinguish this case from the decision in Mohummad Zahoor Ali Khan v. Thakooranee Rutta Koer 11 Moo. I.A. 468. There the suit, as originally brought against nine persons, was held by the Privy Council to have been wholly misconceived; but they, nevertheless, thought that there was in all probability a good cause of action against one of those defendants upon a bond, and thereupon they make this order. They say: 'they have come to the conclusion that the fairer course is to do what the Judge of the Court of first instance might, under the Code of Procedure, have done at an earlier stage of the cause,--namely, allow the appellant to amend his plaint so as to make it a plaint against Rutta Koer alone for the recovery of money due on a bond.' That is precisely what has been done here. The plaintiff originally sued upon his khatta-books. There was an objection by the defendant that the plaintiff ought not to have sued upon his khatta-books, but that he ough...
Tag this Judgment!Anandrav Bapuji Vs. Shekh Baba and ors.
Court : Mumbai
Reported in : (1878)ILR2Bom562
Melvill, J.1. This is an application to set aside an order of the District Court of Khandesh, by which the applicant, a judgment-creditor, is debarred from proceeding further against the property of the judgment-debtors.2. The applicant obtained a decree for Rs. 343-7-11 against Shekh Baba and others, under which certain immoveable property was put up for sale. One Baksu bid Rs. 350 for the property, and made the usual deposit of 25 per cent.; but on the fifth day he failed to make good the full amount of purchase-money, and the property was, consequently, again put up for sale, and purchased for Rs. 151. The judgment-creditor made an application to the Subordinate Judge, in which he stated that Baksu had been acting in collusion with the judgment-debtors, and without any real intention of purchasing; that he was a man without means, from whom nothing could be recovered; and he, therefore, asked that, instead of proceeding against Baksu, he might be allowed to attach other property of ...
Tag this Judgment!Groom and anr. Vs. Wilson
Court : Kolkata
Reported in : (1878)ILR3Cal539
Pontifex, J.1. Granted leave; but, as the defendant was at Peshawur, directed that the time within which the defendant might obtain leave to appear and defend should be extended to the period of twenty-eight days. The learned Judge was of opinion that, inasmuch as Section 532 provides that the summons shall issue either in the form mentioned in the schedule, or in such other form as the High Court may from time to time direct, the Court had the power to extend the time....
Tag this Judgment!The Administrator-general of Bengal Vs. Apcar
Court : Kolkata
Reported in : (1878)ILR3Cal553
Pontifex, J.1. I think that the gift of this legacy of Rs. 20,000 to Paul Apcar, deceased, falls within the rule that, if a testator leaves a legacy absolutely as regards Ins estates, but restricts the mode of the legatee's enjoyment to secure certain objects for the benefit of the legatee upon failure of such objects, the absolute gift prevails--Lassence v. Tierney 1 M. and G. 551. In that case, however, Lord Cottenham qualified the rule by adding that the intention of the testator was to be collected from the whole will and not from words, which, standing alone, would constitute an absolute gift, and in that case he found words in other parts of the will which made him decide that the gift in that case was not an absolute one. In Kellet v. Kellett L.R. 3 H.L. 160 the rule referred to 3ases approved and confirmed. In the present case the gift in the first instance is an absolute one, and the subsequent provisions are simply a qualification of the gift for the benefit of the legatee; a...
Tag this Judgment!Mothooranath Chuttopadhya Vs. Kristokumar Ghose and ors.
Court : Kolkata
Reported in : (1879)ILR4Cal369
Markby, J.1. He (the plaintiff) now brings the present suit for contribution, claiming that the defendant is liable for the mortgage-debt in proportion to the property comprised in the mortgage which was purchased by him.2. Both Courts have dismissed the suit, and the plaintiff has come here in special appeal. Now, from some passages of the judgment of the Court below, it would seem that it was considered that there was an arrangement between the plaintiff and his vendor when his purchase was made, that he should take upon himself the whole of this liability, and that upon that ground he is precluded from recovering against the defendant. No doubt, it was understood between the plaintiff and his vendor that the whole of the vendor's debts should be discharged by the plaintiff, but having had the deed read to us, we do not think that there is anything which shows that there was any intention of the parties to exonerate the defendant from any liability which the law would cast upon him. ...
Tag this Judgment!Syud Mahomet HosseIn and ors. Vs. Hadzi Abdullah and ors.
Court : Kolkata
Reported in : (1878)ILR3Cal727
Ainslie, J.1. The Registrar of Deeds having refused to register a certain document, an application was made in 1872 to the District Judge under Act VIII of 1871. On 23rd August 1872 the District Judge rejected the petition on the ground that the execution of the deed had not been proved. In September 1872 Reasut Hossein applied for a review of judgment, and on the 19th September 1872 the District Judge issued a rule calling upon the opposite party to show cause why the review should not he admitted. On the 4th January 1873 the rule was made absolute, the review admitted, and the cause sot down for further hearing. This order of the 4th January 1873, therefore, had the effect of cancelling the original order of the Judge and re-opening the proceedings commenced by the petitioner in 1872 under Section 74 of Act VIII of 1871.2. The final order of the Judge on that application was made on 20th December 1877, when Act VIII of 1871 had been repealed. It was entitled as a review of judgment i...
Tag this Judgment!Bhoobun Mohini Debia and anr. Vs. Hurrish Chunder Chowdhry
Court : Kolkata
Reported in : (1879)ILR4Cal23
R.P. Collier, J.1. The facts which give rise to the questions of law into which this case resolves itself are as follows: 2. Shumbhu Chunder Surmana, in 1819, granted a talook to his sister, Kasiswari Debia, by a sanad in the following words:Shumbhu Chunder Surmana. Sanad executed to the worthy to be remembered Kasiswari Debia, of good conduct, in the year 1226, B.S.: You are my sister: I accordingly grant you as a talook for your support the three dehas (villages), Hurripur, Futehpur, and Kudumtoli, in Chukla Jonardunpore in my zamindary, Parganna Mymensing, at a tahut jamma of (Rs. 361) three hundred and sixty one rupees with the land and water, and trees, &c.;, comprised within the four boundaries, [and] all [rights] appertaining to the said mouzas. Being in possession of the lands and paying rent according to the tahut jamma, do you and the generations born of your womb successively (santan sreni krame) enjoy the same. No other heir of yours shall have right or interest. To this ef...
Tag this Judgment!Dorab Ally Khan Vs. the Executors of Khajah Moheeoodeen
Court : Kolkata
Reported in : (1878)ILR3Cal806
J.W. Colvile, J.1. This is an appeal against a decree of the High Court of Calcutta, sitting as a Court of Appeal, which, on the 23rd August 1875, affirmed the judgment of Mr. Justice Phear, who, in the exercise of the original civil jurisdiction of the same Court, had, on the 22nd April 1875, dismissed the appellant's suit with costs.2. The suit was instituted in December 1872 by the appellant, suing as executor of one Dianut-ut-Dowlah, against Khajah Moheeooddeen, who died after leave to appeal had been given in India, and is represented by the present respondents. The case was tried in India upon only the first and preliminary issue, viz., whether or not a good cause of action was disclosed in the plaint. It is, however, conceded that the statements in the plaint may be taken to be supplemented by, and to include, any fact stated, or to be inferred by necessary implication from the written statement of the plaintiff, or the documents annexed to and filed with either that or the plai...
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