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Fleming Vs. Koegler
Court : Kolkata
Reported in : (1879)ILR4Cal237
Richard Garth, C.J.1. I think that the learned Judge in the Court below has arrived at a just conclusion in this case.2. The suit was brought by the plaintiffs, Messrs. Nicol, Fleming & Co., for the breach of a contract made with them by the defendants on the 16th of July 1877, and which is in these words:Calcutta, 16th February 1877.Hooper Section to arrive after completion of two country voyages for London. Graf and Banziger.1,300 tons oil-seeds or wheat. 3-12-6, oil-seeds.3-10, wheat. On notice in May or June.First notice to be given for this cargo 20 cwt.Nicol, Fleming & Co.3. The only question in the case depends upon the true meaning of the words 'after completion of two country voyages'; and we have to put a reasonable construction upon these words, having regard to the state of circumstances at the time when the contract was made,4. The defendant is a German merchant carrying on business here under the name of 'Graf and Banziger.' Mr. Krieg, one of the assistants in that firm, ...
Tag this Judgment!Bejoy Chunder Banerjee Vs. Kally Prosonno Mookerjee
Court : Kolkata
Reported in : (1879)ILR4Cal327
Markby, J.1. It is not necessary to consider in this case the effect of the unchastity of Bhobotarinee upon her right to inherit her husband's estate. For oven if she had been chaste, we agree with the Subordinate Judge that she could not succeed during her husband's life time, and that, however long her husband might be absent, he would, upon his return, resume his position both as to his wife and his property. The inference of a man's death from his absence maybe rebutted at any time. This we believe to be the universal rule. Nor, under the circumstances, could Bhobotarinee, whom we must take to have originally held possession on her husband's behalf, acquire a title by adverse possession against her husband. One who holds possession on behalf of another does not by a mere denial of that other's title make his possession adverse so as to give himself the benefit of the Statute of Limitation. But the question whether the plaintiff has gained a title by possession is different. He did ...
Tag this Judgment!Biddomoye Dabee Dabee Vs. Sittaram
Court : Kolkata
Reported in : (1879)ILR4Cal497a
Richard Garth, C.J.1. We are of opinion that, under the circumstances stated, the plaintiff is entitled to judgment in both cases.2. During the plaintiff's absence from home the jemadar Sheoruttun was left in charge of her house and property as her servant. He was never possessed of the articles in question in any other character. He had only the bare custody of them, and had no authority to deal with them in any way whatever. We do not consider that such custody is 'possession' within the meaning of the Contract Act, Section 178.3. But even if the jemadar could be considered as having taken the articles into his own possession, we think the case is clearly within the scope of the second proviso to hat section. The moment that they were removed by him from he box in which they were placed, for the purpose of being pawned to the lawful owner.4. In the case of Greenwood v. Holquette (10 B.L.R., 42) where a piano had been hired from the plaintiff with an option of purchase and the hirer s...
Tag this Judgment!Kumood NaraIn Bhoop Vs. Purna Chunder Roy
Court : Kolkata
Reported in : (1879)ILR4Cal547
Jackson, J.1. Now I apprehend that, where the state of jurisdiction established by Act X of 1859 is still in force, nothing can be clearer than this, that the jurisdiction of the Civil Courts can only be ousted in cases where the subject of dispute and the parties are exclusively such as are annexed to the jurisdiction of the Revenue Courts under that Act.2. Therefore, in order to make the suit cognizable under Section 24 of Act X of 1859, it would have to be shown that the suit was one by a zamindar, or other person in the receipt of rent, against an agent employed by him in the management of land or collection of rents, for money received in the course of such employment, or for papers in his possession, and the course of action must include nothing else, or, at least, not any other subject not cognizable by the Revenue Courts.3. By Section 23 of the same Act, el. 6, it is provided that all suits to recover the occupancy or possession of any land, farm, or tenure, from which a ryot, ...
Tag this Judgment!Raj Bullubh Sen and ors. Vs. Oomesh Chunder Rooz
Court : Kolkata
Reported in : (1880)ILR5Cal44
Jackson, J.1. It appears to me that the judgment of the lower Appellate Court is right upon the point raised.2. I would hold the defendants to be concluded, not upon the ground that they are bound by the act or consent of the father, through whom, they say, they do not claim, but upon this ground, that the act of the widow, sanctioned by the concurrence of the then next heir and reversioner, was in itself a valid ground.3. This, so far as I know, is the rule usually acted upon by the Courts in Bengal, and although in the case of Gunga Pershad Kur v. Shumbhoo Nath Burmun (22 W.R., 393) reference is made to some conflict of opinion upon the subject, I am not aware there is such authority opposed to the view which I take as to oblige us to refer this question to a decision of a Full Bench.4. I would, therefore, dismiss this appeal with costs....
Tag this Judgment!Peary Mohun Mookerjee Vs. Rash Behary Bundopadhya
Court : Kolkata
Reported in : (1879)ILR4Cal346
Richard Garth, C.J.1. The judgments of both the lower Courts in this case have proceeded upon an erroneous view of the Rent Law.2. The suit is brought by the plaintiff, who is the owner of a half share of a patni, to recover from the defendant the rent of that half share (which has been fixed at Rs. 111-3-10 annually), upon the ground that the defendant has become the tenant of the jamma at an auction-sale held on the 12th of Kartick 1280. The rent claimed is from Bysack 1280 to the end of 1282. The defendant admits the plaintiff's right to the rent which accrued due after he (the defendant) purchased the jamma, but disputes the plaintiff's right to recover the rent which accrued due before his purchase. As a matter of fact the plaintiff did sue and obtain a decree against the heir of the former tenant for the rent due for the year 1280; but be abandoned that decree, and is now trying to recover the same rent from the defendant in this suit.3. It was contended before the Munsif that as...
Tag this Judgment!In Re: in the Matter of the Petition of Oodoychurn Mitter
Court : Kolkata
Reported in : (1879)ILR4Cal411
White, J.1. We think that the order of the Judge in this case must be set aside. There were rival claimants; both of them wore very distant relations of Kalichurn, to whose heirs the debts belonged. The Judge has decided the rival claims upon a consideration, first, of the nearness of kinship, and, secondly, of the nearness of residence, of the party who succeeded before him to the place where most of the debtors reside. We think that ho is wrong in this. Neither of the above considerations warranted the Judge in awarding the certificate to the respondent in preference to the appellant, who has prima facie, the better title to inherit to Kalichurn, and consequently to the beneficial ownership of the debts. A recent authority which is cited to us--the case of Gobind Persad Talookdar v. Mohesh Chunder Surmah Ghuttack (15 B.L.R., 35; s.c., 23 W.R., 117)--shows that the present appellant has the preferable title, and that decision appears to have been followed by the Chief Justice and Mr. ...
Tag this Judgment!Nicholls and ors. Vs. Wilson
Court : Kolkata
Reported in : (1879)ILR4Cal560
Richard Garth, C.J.1. We think that this is a very clear case; and it would almost have been sufficient to say that we entirely agree with the learned Judge in the Court below.2. The whole Question depends upon the meaning of the guarantee upon which the suit is brought.3. The plaintiff's firm had acted since the year 1874 as the agents or bankers of the Corinthian Theatre Company. That Company were importing in August 1875 several actors from Australia, who were to play at the Corinthian Theatre; and the Company had a difficulty about paying the expenses of their passage. Under these circumstances, the Company applied to the plaintiffs to advance the passage-money; but the plaintiffs were not content to make the advance upon the responsibility of the Company only, and desired to have the personal security of two of the directors. Upon this, Messrs. Shanks and Wilson entered into the guarantee in question, which is in these words (His Lordship read the guarantee as set out above).4. It...
Tag this Judgment!Furzund HosseIn Vs. Janu Bibee and ors.
Court : Kolkata
Reported in : (1879)ILR4Cal588
R.C. Mitter, J.1. This is a suit for restitution of conjugal rights; the defence raised is that of divorce. The Court of first instance overruled this plea, and decreed the plaintiff's claim. The Court of appeal has come to a different conclusion, and has dismissed the suit, holding that the plea of divorce is established. There is no difference in the findings of the Courts below as to the facts of the case.2. Those facts, as found by the lower Appellate Court, are briefly these: 'The plaintiff, a native doctor, being about to leave Silchar, wished to take his wife, Mussamut Janu Bibee, with him; he was opposed in this by his wife and her family, with whom he appears to have been on very unsatisfactory terms, and, in the hope of settling disputes, he convened a punchayet, before whom, on the plaintiff's stating his intention of removing his wife, the defendants produced the kabinnama, which contained a condition to the effect that, in the event of the husband's attempting to remove hi...
Tag this Judgment!In Re: in the Matter of the Petition of Mohesh Chunder Khan
Court : Kolkata
Reported in : (1879)ILR4Cal417
Ainslie, J.1. One Promothonath Sandyal, a minor, died on the 12th of Pous last, corresponding with the 1st of January of the current year. During his lifetime, Bholanath Khan was one of his guardians, and, to use the language of the Deputy Magistrate, 'it is admitted that Bholanath Khan was the sole surviving trustee of the late Promothonath Sandyal at the time of his death, and that the property was vested in him.' Khethernath Chuckerbutty, on behalf of his son Shibnath Chuckerbutty, claimed the estate of the late Promothonath Sandyal. He obtained an order for a certificate under Act XXVII of 1860 on the 28th of February last, and subsequently took out the certificate. He then proceeded to the villages, and on the strength of this certificate he induced a number of ryots to give him kabuliats. The Deputy Magistrate was informed by the Police that there was likely to be a breach of the peace, and he instituted proceedings under Section 530 of the Criminal Procedure Code, calling upon K...
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