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Dorab Ally Khan Vs. Abdool Azeez and anr.
Court : Kolkata
Reported in : (1879)ILR4Cal229
Pontifex, J.1. The defendants must refund the sums claimed, with interest at 6 per cent. from the date of this order to time of payment. The cots of this application to be costs in the cause....
Tag this Judgment!Kirtee Chunder Mitter Vs. Struthers and anr.
Court : Kolkata
Reported in : (1879)ILR4Cal336
Wilson, J.1. This action is for debt for the price of goods sold and for damages for non-acceptance. The admitted facts show that, after action brought, the plaintiff entered into an arrangement in writing with one of the defendants G.M. Struthers. The form of the receipt which expresses the agreement is as follows: (Reads receipt.) Whatever the English Law would have been as to the effect of the document, we arc governed here by the Contract Act. It is a receipt in satisfaction from one of several persons jointly liable for debt and damages, Then Section 44 says: (Reads Section 44 of the Contract Act.) I think that section applies. It is said that the section applies only to a release to a man from his promise before breach, and not to discharge alter breach. That I think is too narrow a construction. I think the meaning generally is that the release to one of several contractors does not discharge the co-contractors. I ought to say a word as to the latter part of the document by whic...
Tag this Judgment!Poresh NaraIn Roy Vs. Kassi Chunder Talukdar
Court : Kolkata
Reported in : (1879)ILR4Cal662
Morris, J.1. The objection taken in special appeal is, that the lower Court has dismissed the suit of ejectment brought by the plaintiff, on the ground that it is barred by the law of limitation owing to the defendant having proved possession of the land in suit for more than twelve years, and that being so it has given a title to the defendant in the land arising out of adverse possession, which is not warranted by its own finding of fact or the pleadings in the cause.2. The plaintiff derived his title from one Gossain, who was examined as a witness on his behalf. In his judgment the Judge says,--'But this Gossain's deposition, moreover, must be taken as a whole, and it appears to mo to be fatal to plaintiff. He says, defendant and his two predecessors never paid him any rent, and it has been proved in the evidence that they have occupied the land for more than twelve years. With regard to what defendant got from Potit Pabun, therefore, I agree, with the Subordinate Judge that limitat...
Tag this Judgment!In Re: Petition of Modun Mohun
Court : Kolkata
Reported in : (1879)ILR4Cal376
Ainslie, J.1. We are of opinion that the conviction of the petitioner under Section 161, Penal Code, is bad in law. The Magistrate takes it for granted that a poddar of the Bank of Bengal is a public servant within the meaning of Clause 9, Section 21 of the Penal Code. The Sessions Judge has given certain reasons for coming to the same conclusion, but neither Court appears to have thought it necessary to consider the point with reference to any evidence bearing thereon, and the learned Junior Government Pleader, who has appeared to support the conviction, is unable to show that there is any.2. The Sessions Judge has fallen into error by varying the words of the Act. He says it was the duty of the prisoner to take money paid in on account of Government. The definition of a public servant, which, if any, is applicable to this case, runs 'every officer whose duty it is as. such officer to take on behalf of Government.'3. It may be that the money was paid by the Court of Wards' manager on ...
Tag this Judgment!The Empress Vs. Tsit Ooe
Court : Kolkata
Reported in : (1879)ILR4Cal668
Richard Garth, C.J.1. After fully considering the judgments of the Special Court upon this point, we have no doubt that the conviction and sentence passed by the Judicial Commissioner is subject to appeal to that Court.2. We entirely agree with the learned Recorder, that the words 'any original jurisdiction' must hear the ordinary natural signification which he puts upon them, and we think it clear that whenever the Judicial Commissioner exercises original jurisdiction, from whatever source derived, in criminal cases, an appeal lies to the Special Court from his decision.3. Were the law otherwise, we consider that the fair administration of criminal justice might be seriously imperilled, and that the case would call for the immediate interference of the legislature. The Judicial Commissioner would then have the power, by transferring any case to his own Court, for any reason which might seem sufficient to himself, to exercise an entire control over the proceedings, and to deprive the p...
Tag this Judgment!Brojender Coomar Vs. Bromomoye Chowdhrani
Court : Kolkata
Reported in : (1879)ILR4Cal885
White,1. The plaintiff, Brojender Coomar Roy Chowdhry, who is appellant before us, has sued three defendants, one of whom alone, Bromomoye Chowdhrani, is the respondent in this appeal, to recover a sum of Rs. 20,825.2. He alleges in his plaint that these three defendants borrowed that sum on seven different occasions, between the 23rd Assar and the 12th Kartic of 1281 (6th July and 28th October 1874), and that the several advances were each entered at the time of borrowing in a hatchitta, which he produced, and which purports against each item to bear the signature of the male defendant and the seals of the two female defendants, of whom Bromomoye is one. The lower Court has passed a decree against two of the defendants, namely, Sampadmani and Mohinee Chundra, for the whole amount claimed, but against the second defendant, who is the respondent before us, only for the first item appearing in the hatchitta, viz., 3,500 rupees and interest. A one-anna adhesive stamp was affixed at the he...
Tag this Judgment!Sharupgir Oghorenath Vs. Khuggender NaraIn Chowdhry and ors.
Court : Kolkata
Reported in : (1879)ILR4Cal543
Morris, J.1. In this suit the plaintiff laid claim to possession of two plots of land, amounting to bigas 310, as successor of certain shebaits who purchased these lands from the ancestors of the defendants for the maintenance of the worship of an idol Mahadeb in the temples erected by them for the purpose of holding two Sivalingas. He set forth in his plaint that his predecessor had been one Jograjgir, who disappeared in 1268; that on his disappearance the defendants took the lands in suit into their own hands and assisted in the management of the workship of the Mahadeb for five years; that in the month of Falgoon 1278 he, the plaintiff, went to the place, and by performing the worship, &c.;, of the Mahadeb had been employed as shebait; and that he was in possession of the idol Mahadeb and his dwelling house. He, therefore, claimed under Hindu law in right of heirship of the former shebait, and as the person conducting the worship of the idol, to obtain possession of the lands in sui...
Tag this Judgment!Halal Khore Mohaldar Vs. Shodone Mohaldar and anr.
Court : Kolkata
Reported in : (1879)ILR4Cal645
Morris, J.1. This special appeal raises an important question as to the right of the representative of an assignee by devise of a debt to sue to recover the debt without having first taken out probate of the will of the deceased testator or having obtained a certificate under Act XXVII of 1860 to realize the debts belonging to his estate.2. The plaintiff, in virtue of a certificate under Act XL of 1858, represents his minor son, to whom he says one Bachoo Mohaldar has bequeathed certain properties by will, amongst others a certain mortgage-bond alleged to have been executed by the defendant, and he sues to recover the money due upon this bond.3. The defendant resisted the suit on various grounds, amongst others, that no probate had been taken of the will of Bachoo Mohaldar, and that without such probate or a certificate under Act XXVII of 1860, the plaintiff could not, under the terms of Section 2 of the Act, compel him to pay the debt.4. The first Court dismissed the plaintiff's suit....
Tag this Judgment!Maseyk Vs. Fergusson (No 2)
Court : Kolkata
Reported in : (1879)ILR4Cal670
Pontifex, J.1. The first question in this case is, whether the defendant, Charles Bathurst Maseyk, who was born after the testator's decease, but before the period of distribution mentioned in the will, can be admitted into the class of nephews and nieces to whom the testator bequeathed his residuary estate. I have already held in a former suit in the matter of this will that the children of the testator's brother took vested interests at his death, but it was not determined in that suit whether the class would open to admit an object born after the testator's death but before the period of distribution. Under the English law it is clear that such an object would be admitted into the class. But in this country the question is governed by Section 98 of the Succession Act. I think the intention of the framers of that section was to assimilate the law here to that which exists in England, although the section, with its exception, and illustration (h), are not very happily expressed; and I...
Tag this Judgment!In Re: in the Matter of the Petition of Kunund NaraIn Bhoop
Court : Kolkata
Reported in : (1879)ILR4Cal650
Ainslie, J.1. On the 23rd February 1878 the Extra Assistant Commissioner of Goalpara, from proceedings before him, was led to the belief that there was a likelihood of a breach of the peace in consequence of a dispute about certain lands between Rajah Kunund Narain Bhoop on one side, and Puddo Kishore Burmah and another on the other side. He consequently directed that proceedings should be held under Section 530 of the Criminal Procedure Code, and recording a proceeding reciting the existence of this dispute, he caused notice to be given to the parties above named.2. Those persons in the end came to an amicable settlement of their dispute; but, in the meantime, shortly before this settlement was effected, another party, Gopinath Chuckerbutty, came in on 9th May, and put forward a claim to the possession of a portion of the land covered by the Magistrate's notice.3. Eventually an order was made by the Magistrate on 24th June declaring Gopinath to be the party in possession.4. The Rajah ...
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