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Hingoo Lall Singh Deo Vs. Nilmony Singh Deo
Court : Kolkata
Reported in : (1880)ILR5Cal256
Tottenham, J.1. These two suits were disposed of in the lower Court by one judgment; and as they are precisely similar, they have been laid before us together in appeal, and our decision of one will apply to them both. The suits were brought to obtain maintenance from the defendant, who is commonly known as the Raja of Pachete, by virtue of an alleged kulachar, or family custom, prevailing in that family.2. It is an undisputed fact that the zamindari or raj is not subject to the ordinary rules of Hindu law as regards devolution by inheritance, but is impartible, and is held exclusively by the eldest son of each successive raja, or in default of a son by the member of the family next entitled to succeed. It is also undisputed that certain members of the family, who are by this custom excluded from the actual inheritance, are entitled to maintenance from the raja for the time being, and this maintenance may be either by a direct money allowance, or it may be provided by the grant of land...
Tag this Judgment!Bhoyrub Dass Johurry Vs. Doman Thakoor
Court : Kolkata
Reported in : (1880)ILR5Cal139
Wilson, J.1. The first question, whether I have power to make either of the orders asked for, is important. Section 363 of the Code provides, that if there be more plaintiff's than one, and any of them dies, and the cause of action does not survive to the surviving plaintiff or plaintiffs alone, but survives to him or them and the legal representative of the deceased plaintiff jointly, the Court may, on the application of such legal representative, enter his name on the record in place of such deceased plaintiff, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs and such legal representative. Section 365 provides that, 'in case of the death of a sole plaintiff, or sole surviving plaintiff, the Court may, where the cause of action survives, on the application of the legal representative of the deceased, enter his name in the place of such plaintiff on the record, and the suit shall thereupon proceed.' Article 171 of the Limitation Act says, that the per...
Tag this Judgment!Baboo Lukputty Singh and anr. Vs. Nursingh NaraIn Singh
Court : Kolkata
Reported in : (1880)ILR5Cal333
Ainslie, J.1. Who, after stating the facts, continued:The Courts below have found that the debt has been satisfied, and that there is a surplus in the hands of the defendant irrespective of the rent still payable up to the end of the term. They have also found that the plaintiff is not entitled to re-enter before the end of Jeyt 1287 (1880), the time fixed in the original lease. With this latter part of their decision we are not now concerned.2. The questions before us are: 1st, whether the plaintiff is entitled to an account at all; and, 2ndly, whether this suit is not premature? The Courts below having found that the plaintiff had no right of re-entry until 1287 (1880), it is contended that he had no cause of action in 1877, when this suit was brought.3. The position which is taken by the defendant is, that, whereas the plaintiff was entitled to recover his rent from time to time under the Rent Law, and did not choose to do so, these rents are, to a great extent, irrecoverable now un...
Tag this Judgment!The Empress Vs. Chunder Nath Dutt
Court : Kolkata
Reported in : (1880)ILR5Cal121
White, J.1. The question raised by the reference of the Officiating Chief Magistrate is as to the procedure to be adopted in cases under chap. 8 of the Presidency Magistrates' Act, when an accused person who has been discharged by the Magistrate under Section 87 of that Act, because there are no sufficient grounds for committing the prisoner to take his trial is at some subsequent time again prosecuted before a Magistrate for the same offence. The Act, in Section 82, states specifically the procedure to be applied when an accused person is brought before the Magistrate under chap. 8, and no distinction is made between the cases of a first and that of a second prosecution for the same offence. The argument that on a second prosecution the witnesses who were examined on the first prosecution need not be examined again, but may be considered as giving evidence in support of the second prosecution, is based solely and entirely upon the circumstance that the Legislature, in expl. 2 of Secti...
Tag this Judgment!The Empress Vs. Maguire
Court : Kolkata
Reported in : (1880)ILR5Cal124
White, J.1. We have referred to the 101st section of the Mutiny Act (41 Vic., c. 10, A.D. 1878), and are of opinion that that Section (which is also to be found in the Mutiny Acts between 1873 and 1878) does not deprive the Civil Courts of jurisdiction over British soldiers committing offences within the territorial limits of those Courts, nor render the exercise of their jurisdiction dependent upon the sanction of the Commander-in-Chief. The 101st section simply provides that as regards civil offences committed by British soldiers serving in India or its dependencies, and at a distance of more than 120 miles from the Presidency-town, the offenders may be tried by a general court martial, the appointment of which rests with the Commander-in-Chief. It appears to us that the section is merely permissive of a military trial being held. In this case the Court has got possession of the investigation of the offence, and the military authorities have not availed themselves of the alternative ...
Tag this Judgment!Bhoobunjoy Shaha and ors. Vs. Sonaka Chowdrain
Court : Kolkata
Reported in : (1880)ILR5Cal311
Richard Garth, C.J.1. Who, after dismissing the defendant's appeal, gave the following judgment on the plaintiffs' cross-appeal:We have now considered the cross-objection made by the respondents (the plaintiffs) upon the ground that the Judge improperly compelled them to pay an additional sum for stamp-duty on the bond, and also a penalty of Rs. 1,000.2. The loan in respect of which the bond was given was Rs. 30,000, but that sum was made repayable with interest by certain instalments, extending over twenty-two years. Thus the whole amount secured by the bond, principal and interest, was Rs. 76,000.3. Although that sum of Rs. 76,000 consisted, no doubt, partly of interest and partly of principal, still, having regard to the nature of the transaction and to the fact that in case of non-payment of any instalment, interest would be payable on that instalment, the Judge considered that the bond should have been stamped for Rs. 76,000.4. It was, however, under the advice of the Sub-Registra...
Tag this Judgment!Soopromonian Setty Vs. Heilgers
Court : Kolkata
Reported in : (1880)ILR5Cal71
Wilson, J.1. I think the defendants are entitled to judgment in this case, and on several grounds. The first ground of defence taken by Mr. Phillips is that the defendants are not themselves liable as parties to the contract, but that if any one is liable, it is their principals. I think he is right. The liability depends on Section 230 of the Indian Contract Act. The first part of that section says: 'In the absence of any contract to that effect an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them.'2. The present contract is one in terms made by Messrs. Heilgers and Company as agents for and on behalf of the owners of the steamship Lumley Castle. It is signed 'P.W. Heilgers and Company, Agents for owners of Steamship Lumley Castle.'3. It follows (if the case be governed by this first part of the section) that they are not bound unless the terms of the contract are such as to show that they meant to bind themsel...
Tag this Judgment!Dhununjoy Nushkur Vs. Brindabun Chunder Sirkar
Court : Kolkata
Reported in : (1880)ILR5Cal246
Jackson, J.1. In our opinion the plaintiff's suit ought to have been dismissed. He claimed to recover possession of jamai land by adjudication of jamai right thereto, together with mesne profits; and the ground of the suit was, that he had obtained a mourasi potta under the signature of the naib of the zemindar. The suit was brought in forma pauperis, and the plaintiff prayed for a decree for the recovery of possession by adjudication of tenancy right and for mesne profits.2. It appears that, according to the plaint, the plaintiff had been dispossessed not by the present zemindar, but by his predecessors, in the year 1278 (1871). In the year 1281 (1874) the zemindari right of one of the co-sharers was acquired by another co-sharer, and it is now said the defendants Nos. 1 and 3 are wrongfully keeping the plaintiff out of possession of his jamai rights. The suit, therefore, is as against the defendants Nos. 1 and 3, who are zemindars, and against the defendant No. 2, who assisted the ze...
Tag this Judgment!The Agra Bank Vs. Dhuronidhur Sen and ors.
Court : Kolkata
Reported in : (1880)ILR5Cal86
Richard Garth, C.J.1. A review having been granted in this case upon the ground that the previous judgment of this Court contained an inaccurate statement of the facts, and that a review was necessary for purposes of justice, we are now called upon to decide a second time the appeal which has been preferred from the judgment of Mr. Justice White, whose opinion in the Division Bench prevailed over that of Mr. Justice Mitter. Messrs. Gilmore, McKilligan, and Co. were the proprietors of an indigo business called the 'Paikurdanga Concern,' over which the Agra Bank held a mortgage; one of the properties belonging to that concern was a patni taluq called 'Kalabaria,' of which Brojonath had the darpatni; the rent of this patni taluq not being paid, it was sold under the provision of Reg. VIII of 1819; and in consequence of that sale Brojonath's darpatni rights were cancelled. Brojonath then brought a suit against a number of persons including the executors of the deceased members of the firm ...
Tag this Judgment!Dirgopal Lal and ors. Vs. Bolakee
Court : Kolkata
Reported in : (1880)ILR5Cal269
Richard Garth, C.J.1. The plaintiff took a mortgage-bond from Chemnarain on the 11th of March 1868. He obtained a money-decree on that bond on the 23rd of January 1869; and under that decree he had the mortgagor's interest put up for sale on the 29th of April 1870, and purchased it himself. The defendants took a mortgage-bond of the same property in November, 1868, upon which they obtained a decree on the 31st of May 1869; and under that decree, the mortgagor's interest was sold and purchased by the defendants on the 22nd of April 1870, a few days before the plaintiff's purchase.2. Upon these facts, the lower Appellate Court has decided in favour of the plaintiff, upon the ground that his mortgage was first and his decree first. But as this is a suit for possession, we consider that the party who first purchased the mortgagor's interest and obtained possession, is entitled to retain possession as against the other, although his own right may be merely that of a trustee for the mortgago...
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