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Brojendro Coomar Ray and ors. Vs. Rakhal Chunder Ray and ors.
Court : Kolkata
Reported in : (1878)ILR3Cal791
R.C. Mitter, J.1. In this case we think that the lower Appellate Court has taken a correct view of the law of limitation applicable to the facts about which there is no dispute between the parties.2. The rent claimed is of the year 1276 (1869-1870), and the present suit has been brought in Magh 1282 (January 1876), so that if the rent claimed became due in the year 1276 (1869-1870), the present suit not having been brought within three years from the last; day of that year, is clearly barred under Section 29 of the Rent Act.3. It has been said that it did not become due in that year, because in 1275 (1868-1869) a notice for enhancing the rent of the defendants' tenure was issued, and a suit for the recovery of enhanced rent mentioned in the aforesaid notice was brought in Assar 4277 (July 1870); that this suit was finally decided against the plaintiff's by the High Court on the 19th Jaist 1280 (2nd June 1873). The plaintiffs' contention is, that the rent of the year 1276 (1869-1870) at...
Tag this Judgment!Fakharooddeen Mahomed Ahsan Vs. Pogose and ors.
Court : Kolkata
Reported in : (1879)ILR4Cal210
Jackson, J.1. As we have no doubt whatever as to what ought to be the result of this appeal, and as there are other cases depending upon it, we may as well announce what our decision is. We may, if necessary, hereafter state at greater length the reasons which have led to that decision. This suit was dismissed in the Court below upon two preliminary grounds--the first being that the question was in reality res judicata, and the second being the ground of limitation. As to the first point, Mr. Branson has satisfied us that the decision of the Court below was wrong. It is not necessary at present that we should do more than cite the case of Abedoonissa Khatoon v. Ameeroonissa Khatoon (20 W.R., 305), a decision of the late Chief Justice of the Court, in which we entirely concur, and which decision has since been affirmed by the Judicial Committee of the Privy Council (L.R. 4 I.A., 66; s.c, I.L.R., 2 Cal., 327). It is clear to us that the actual adjudication of this matter would have to be...
Tag this Judgment!Champabaty Vs. Bibijibun and anr.
Court : Kolkata
Reported in : (1879)ILR4Cal213
Jackson, J.1. In this case the plaintiff sued upon an instrument called a chitta, which purported to acknowledge the receipt of money repayable with interest at 12 annas per cent. This instrument being tendered in evidence, the Court below held it could not be received, because it was unstamped. The Subordinate Judge was of opinion that it was an instrument of the kind on which stamp duty of one anna was payable, and that the said stamp not having been affixed at the time of the execution, it could not be affixed afterwards, and as the plaintiff was in his opinion debarred from proving by oral evidence a contract which had been reduced to writing, be dismissed the suit in toto.2. In appeal it is contended that this instrument is not one of the kind which ought to be stamped with one-anna duty, but of a kind coming under Article 11 of the second schedule of the General Stamp Act, so that the proper stamp duty was 8 annas, which might have been afterwards received on payment of the prope...
Tag this Judgment!Syed Allaoollah and ors. Vs. Hirdy NaraIn and anr.
Court : Kolkata
Reported in : (1879)ILR4Cal72
L.S. Jackson, J.1. What the plaintiffs sought in this suit was an order that a certain mehal, or share in a mehal, in the possession of the defendants might be brought to sale in satisfaction of the balance due on a mortgage debt secured originally upon some seventeen estates of which the property now in question is one. It was stated in the plaint that all those properties, that is, all the others over which the mortgage extended, being sold, the plaintiff's obtained Rs. 5,882 out of the said decretal amount, but that Rs. 759 still remaining unpaid, an application was made for the share in suit being sold by auction, but upon a petition of objection on behalf of the defendants, the property was released from sale.2. The principal objection made by the defendants was, that the suit of the plaintiffs could not proceed unless an account were taken of the whole mortgaged property as it stood in the hands of different purchasers, and which property had been separately assessed in respect o...
Tag this Judgment!In Re: in the Matter of the Appeal of Pertab NaraIn Singh Vs. Subhao K ...
Court : Kolkata
Reported in : (1879)ILR4Cal184
J.W. Colvile, J.1. This application seems to involve two distinct questions:1st.--Whether the petitioner, if assumed to have been properly made a party to the suit in the Courts below, and bound by the proceedings therein, is entitled to have a re-hearing of the appeal by reason of his not having entered an appearance as respondent to the appeal, or authorized any person to do so for him; and of the appellant having failed to take the usual steps against him in order either to compel his appearance, or to have the appeal regularly hoard ex parte against him.2ndly.--Whether, under the circumstances stated in the petition, he ought not to he treated as a person not properly represented in the suit in the Courts below, and therefore not bound by the proceedings therein; and if so, whether he is entitled to have the order of Her Majesty in Council varied so as to prevent its being used against him as a bar to any proceedings which he might otherwise be entitled to take in the Courts of Ind...
Tag this Judgment!Behary Lall Sandyal Vs. Juggo Mohun Gossain
Court : Kolkata
Reported in : (1879)ILR4Cal1
Richard Garth Kt., C.J.1. The questions involved in this case are of great general importance, and having considered them carefully, we are of opinion that the view taken by the Judge in the Court below was erroneous. [His Lordship then stated the facts of the case, and continued.] It has been argued for the appellant, first, that the questions raised by the second issue was one which the Judge had no right to entertain in a proceeding of this nature and secondly, that even if he had a right to decide whether the testatrix had any disposable property at all, there was sufficient evidence that she had some stridhan, which would be quite enough to justify the grant of probate. 2. We do not think it expedient to enter into the consideration of this latter point because we do not wish to prejudice the rights of either party in case of any future litigation upon that subject. It is sufficient for us to say that if it were necessary to establish that the lady had some stridhan, we think ther...
Tag this Judgment!Ram Doolary Kooer Vs. Thacoor Roy
Court : Kolkata
Reported in : (1879)ILR4Cal61
Ainslie, J.1. The plaintiff in the present case sued for the recovery of possession of certain property on the allegation that she had made a verbal settlement with the defendant; and that the term of the settlement having expired, she had given him notice to quit, but that he refused to do so, and was holding on without any right whatever.2. The defendant in answer put forward a document dated the 23rd of September 1876, which is called a zurpeshgi lease. 3. The first Court found that the document was not genuine.4. The lower Appellate Court reversed that finding, and came to the conclusion that the document was actually executed by the plaintiff. The Judge says that, in the present case, it is not necessary to consider how far the document may be binding upon the minor, as he will have an opportunity of challenging it when he comes of age.5. In this view we think that the Judge was right. If the plaintiff came into Court on behalf of the minor intending to raise the question of the b...
Tag this Judgment!Moran Vs. Guni Mahomed
Court : Kolkata
Reported in : (1879)ILR4Cal96
Richard Garth, C.J.1. As the question in each of these cases is of a somewhat similar character, and seems to depend upon the same principle, and as on looking into the authorities there appears to be some difference of opinion in this Court upon the subject, we think it right to refer both cases to the decision of a Full Bench.2. In Letters Patent Appeal No. 1713 of 1876 the suit was brought by an ijaradar against a ryot for a kabuliat at a certain rent. The plaintiff had taken an ijara for a term of years of a moiety of an undivided estate. The defendant was the tenant of a nunkur jote within this estate at a rental of Rs. 16-8, and it has been found that, for some years before the suit, he has been paying Rs. 8-4 separately to Ramanand and Anandomoyee, who were the owners of one moiety of the entire estate.3. The lower Court held that, as he had thus paid a separate rent to the plaintiff's lessors, the plaintiff was entitled to sue him for a kabuliat, and decided accordingly; which ...
Tag this Judgment!Lalla Nowbut Lall Vs. Lalla Jewan Lall and ors.
Court : Kolkata
Reported in : (1879)ILR4Cal831
Richard Garth, C.J.1. We are of opinion that by the Mahomedan law one co-parcener has no right of pre-emption as against another co-parcener. There appears to be no reason, either upon principle or authority, why the right of shaffa should exist as between co-parceners; and the rule, as laid down in Hamilton's Hedaya, Vol. III, Bk. 38, Ch. 1, appears to have been misunderstood in this respect. That rule merely prescribes that any one partner (or co-parcener) of a property has a right of shaffa as against a stranger, who purchases a share from his co-partner and does not mean that the right exists as between co-partners who may purchase shares from one another. The object of the rule, as explained in that chapter, and in Ch. 3, is to prevent the inconvenience which may result to families and communities from the introduction of a disagreeable stranger as a co-parcener or near neighbour. But it is obvious that no such annoyance can result from a sale by one co-parcener to another. The on...
Tag this Judgment!Kally Coomar Roy and ors. Vs. Annoda Churn Roy
Court : Kolkata
Reported in : (1879)ILR4Cal89
Richard Garth, C.J.1. This suit is brought to recover from the defendant No. 1, who is a ryot, an eight-anna share of the rent of a certain jote, which, as plaintiff's say, formed the joint property of their father; Guru Dass Roy, the defendant No. 3, and Prankisto Roy, the father of defendant No. 2.2. The plaintiffs' case is that an undivided eight-anna share of this property has been conveyed to them by a deed of gift; and they sue the defendant to enforce payment by him of their half share of the entire rent.3. They have made defendants Nos. 2 and 3 parties to the suit avowedly in order to obtain as against thorn an adjudication of their title to the eight-anna share of the rent; and they are in point of fact endeavouring to try the question of title as between them and the defendants Nos. 2 and 3 under the guise of a rent suit against the defendant No. 1.4. It is not suggested that defendant No. 1 was unwilling to pay his rent in its entirety to the persons who were entitled to rec...
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