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Surnomoyee Dabee Vs. Koomar Purresh NaraIn Roy
Court : Kolkata
Reported in : (1879)ILR4Cal576
White, J.1. The point raised by this appeal is, whether the defendant (the respondent before us) is entitled from the annual profit,--viz., Rs. 11,700,--payable by him to the plaintiff (the appellant before us) under a patni-kabuliyat, to deduct that portion of the road-cess levied upon the land, the subject of the patni-tenure, which falls according to Bengal Act X of 1871 upon the plaintiff, but has been paid by the defendant. If this question had been one pure and simple of the construction of the patni-kabuliyat, we should have taken time to consider the validity of an objection raised by Baboo Rash Behary Ghose on behalf of the respondent, that a special appeal does not lie in such a case under the new Code; but the decision of this appeal involves not only that question, but also a consideration of the Bengal Road Cess Act, and of the effect of its provisions upon contracts made prior to its passing, and we are clearly of opinion that the special appeal lies.2. (After shortly sta...
Tag this Judgment!Grish Chunder Shamunt Vs. Ahamudeen
Court : Kolkata
Reported in : (1879)ILR4Cal350
Jackson, Officiating C.J.1. It seems clear that, upon the facts which have come out in the course of the hearing, the plaintiff had really no just cause of action against the tenant-defendant. The tenant had paid his rent, as he had been accustomed to pay to the joint owners. It appears that the money found its way to the other co-sharers, who admit, as defendants in the suit, the receipt of it. The plaintiff's remedy is against them, and not against the tenant. It appears to us that the order of the learned Judge who tried the special appeal, must be varied, so far that the suit as against the tenant-defendant must be dismissed with costs.2. If there be any question remaining to be tried between the plaintiff and the remaining defendants, they ought to be tried, but as it is there must be judgment for the tenant-defendant with costs....
Tag this Judgment!issurree Dassee Vs. Abdool Khalak
Court : Kolkata
Reported in : (1879)ILR4Cal415
Mitter, J.1. In special appeal the decree-holder contends that, although in form the application of the 22nd of December 1874 was an application to execute the decree, in substance, under the circumstances of the case, it should be considered as an application to continue the old proceedings. We think that this contention is valid. It is true that the Court executing the decree disposed of the application of the 10th of July 1871, after the judgment-debtor's property was sold; but the effect of the subsequent order, dated 14th of May 1873, by which the sale was set aside and the decree-holder directed to refund the money which he had withdrawn from the Court, was to nullify all the proceedings taken on the application of the 10th of July.2. We think the facts of the case clearly come within the principle of the decision quoted by the learned Judge--Baboo Pyaroo Tuhobildarinee v. Syud Nazir Hossein (23 W.E., 123); although, no doubt, the facts are not exactly similar: but the principle ...
Tag this Judgment!Purnanund Asrum Vs. Rookinee Gooptani
Court : Kolkata
Reported in : (1879)ILR4Cal793
Markby, J.1. It appears to me that the judgment of Mr. Justice Ainslie was right. The plaintiff, who was an auction-purchaser, and claimed the privileges of Section 37 of Act XI of 1859, sued, not to eject but to enhance the rent of the defendant, alleging him to be a person holding a lease of land whereon a dwelling-house had been erected, and to have held the same at what was originally an unfair rent, and not to have been holding at a fixed rent equal to the rent of good arable land for a term exceeding twelve years,2. The defendant, however, stated that he was a person coming under the first exception of the 37th section, that is to say, that he was the holder of an istemrari or mokurari tenure which had been held at a fixed rent from the time of the Permanent Settlement.3. The question arose, as I understand, in this case, in what manner the defendant was to make out this claim of exemption, and the opinion of Mr. Justice Ainslie was, that in cases of this sort, when the plaintiff...
Tag this Judgment!Oghra Singh Vs. Ablakhi Kooer and anr.
Court : Kolkata
Reported in : (1879)ILR4Cal536
Mitter, J.1. The only point that has been raised before us is that Section 50 has no application to this case, because that section refers only to documents the registration of which is optional.2. We think that this contention is valid. Section 50 is as follows;--' Every document of the kinds mentioned in Clauses 1 and 2 of Section 18 shall, if duly registered, take effect as regards the property comprised therein against every unregistered document relating to the same property.' Now, in this case, in order to apply Section 50, it must be made out that the defendant's document is one of the kinds mentioned in Clauses 1 and 2 of Section 18; but it is quite clear that the document does not come within those clauses, because the property in suit was sold to the defendant for Rs. 200. That being so, it is quite clear that Section 50 has no application. This view of the section in question has been taken by this Court in the case of Ryasuttulla v. Doorga Churn Paul; (15 B.L.R., 294. s.c. ...
Tag this Judgment!Doyal Mistree Vs. Kapoor Chund and ors.
Court : Kolkata
Reported in : (1879)ILR4Cal318
Ainslie, J.1. On the 8th day of March 1878 a decree was made by the Small Cause Court of Patna for 279 rupees in a suit by Doyal Mistree against Kupoor Chund and another. The decretal order is in these words: 'The case is accordingly decreed ex parte with costs.' An application for rehearing was made on the ground that the defendant's pleader had been unable to attend Court at the time when the suit was heard. On that the Judge makes an order, in which he states that 'this case was not decided ex parte under Section 100 of the Civil Procedure Code; the defendant applying for a new trial had put in a vakalatnamah; he only did not appear when the case was called on for hearing.' He then goes on to say that as the defendant did not pay in the amount of the decree with his application for a new trial, he was unable to entertain it. He, therefore, holds 'that the application does not fall under the first part of Section 21 of the Small Cause Court Act, and that it falls under the second par...
Tag this Judgment!Fehrsen Vs. Simpson
Court : Kolkata
Reported in : (1879)ILR4Cal514
Broughton, J.1. Mr. Piffard, for Mr. Abercrombie, contended that the deed of 1874 is, according to Scotch law, a will and a disposition of the fund in terms of the will of Dr. Simpson. But there is no evidence of a Scotch domicile of Mr. and Mrs. Fehrsen, and if there were, this deed is not a, disposition by bequest in terms of the will of Dr. Simpson, such bequest is there directed to be made 'to any one of the children they may select.'2. It appears to me that the deed of 1874 could not operate upon the fund in consequence of the direction of the testator, Dr. Simpson, that it should not be transferred in the lifetime of his daughter.3. I concur in the argument of Mr. Phillips, for the brother and sister of Mrs. Fehrsen, that she had nothing to settle under her father's will, and that the plaintiffs in this case consequently take nothing under the settlement. I also agree with his contention that the will cannot be said to be an execution of the power, for, even if it referred to the...
Tag this Judgment!Lala Kali Prosad Vs. Buli Singh
Court : Kolkata
Reported in : (1879)ILR4Cal790
Tottenham, J.1. In this appeal there were two points for decision, 1st whether or not the doctrine of lis pendens applies to the case; and 2ndly, if it does apply, whether the defendant can escape the effect of it on the plea that he had notice of the proceedings taken in execution of the decree obtained by the mortgagee of the property in which the subject of the present dispute is included. The lower Appellate Court held, that the doctrine of lis pendens did not apply. We are of opinion that in so holding the District Judge was in error. The defendant, respondent, purchased the property, or rather the right and interest in it of his debtor, at a sale in execution of his own decree on the 7th of September 1874. At that time there was pending in the same Court a suit against the same debtor brought by his mortgagee to recover a debt secured by the mortgage of property, which included that now in dispute; and on the 17th of September a decree was passed in that suit ordering the amount ...
Tag this Judgment!Nilruttun Mundle Vs. Komollochun Dutt and ors.
Court : Kolkata
Reported in : (1879)ILR4Cal360
Markby, J.1. We think that the District Judge was wrong in holding that the grant of probate could be impugned in this suit.2. The grant of probate is the decree of a Court which no other Court can sot aside except for fraud or want of jurisdiction, and no such ground is alleged here.3. What, however, the District Judge really meant (as appears from his second judgment) was, that the grant of probate was not conclusive as to the genuineness of the will; and that, notwithstanding the probate, the will might be questioned in a civil suit in which the will was relied on.4. In this view also we are unable to agree. Section 242 of the Succession Act declares, that 'probate or letters of administration shall have effect over all the property and estate, moveable or immoveable, of the deceased, throughout the province in which the same is granted, and shall be conclusive as to the representative title against all debtors of the deceased and all persons holding property which belongs to him, a...
Tag this Judgment!Purshan Ram and ors. Vs. Madhoo Proshaud Singh and ors.
Court : Kolkata
Reported in : (1879)ILR4Cal520
Ainslie, J.1. The plaintiffs sued to obtain possession as auction-purchasers of the right of Parbhu Singh in a dur-mokurari tenure at an execution-sale held on the 15th of June 1875. The dur-mokurari tenure was held jointly by Parbhu Singh and Bal Gobind.2. The defendants, who represent the mokuraridar, brought a suit against the dur-mokuraridars for arrears of rent for certain months-i.e., from Magh to Joyt 1282, corresponding with January to May 1875. That suit was not commenced until the 25th of August of that year, and the decree in it is dated the 27th of September 1875. That decree contains an order framed under Section 52 of the Rent Law, directing the ejectment of the dur-mokuraridars in the event of the arrears decreed not being paid within fifteen days. That suit was brought and decree obtained after the sale of the interest of Parbhu to the plaintiffs without any reference to them.3. It may be that the landlord was justified in refusing to notice the transfer of this tenure ...
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