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Kally Churn Shaw and anr. Vs. Dukhee Bibee and anr.
Court : Kolkata
Reported in : (1880)ILR5Cal692
Wilson, J.1. This is a suit brought by the plaintiffs, claiming to be heirs of one Doorga Shaw, and asking to recover, as against the defendant (Dukhee Bibee), the property which they allege formed part of the estate of Doorga Shaw, and for accounts. They claim as sons of Doorga Shaw, by what they call a sagai marriage.2. The first question to consider is, whether, among the caste to which the plaintiffs' mother belongs, a marriage such as that which has taken place is a valid marriage so as to make the children legitimate.3. The sagai marriage is not unknown. It has been before the Court on a former occasion. A sagai marriage, very similar to the one in this case, came before a Division Bench of this Court in the case of Bissuram Koiree v. The Empress (3 C.L.R., 410), and the marriage was held to be a good marriage so far as to render a person who had intercourse with a woman so married liable for adultery.4. The evidence shows that the sagai marriage is common among the Hulwaee caste...
Tag this Judgment!Koomud Chunder Dass Vs. Chunder Kant Mookerjee
Court : Kolkata
Reported in : (1880)ILR5Cal498
Wilson, J.1. I will not trouble you, Mr. Branson. I think Mr. Phillips is right in saying that this is a contract to refer to arbitration, and that he is right in saying that the present suit is brought in respect of the subject-matter which the parties had agreed to refer to arbitration. But I think that before Section 21 of the Specific Relief Act can be relied upon, it must be shown that the plaintiff had refused to refer to arbitration. I do not think that the filing of the plaint is such a refusal. I, therefore, hold that nothing has been shown under the section to bar the present suit....
Tag this Judgment!Mohamed Elahee Buksh and ors. Vs. Kally Mohun Mookhopadhya and anr.
Court : Kolkata
Reported in : (1880)ILR5Cal589
Morris, J.1. This appeal raises a question as to the proper reading of the decree which is sought to be executed, and the still more important question, whether the lower Court was right in refusing to allow certain moneys that had been paid in execution of the decree to the judgment-creditor, to be recovered back and refunded to the judgment-debtor.2. The lower Court, as we think, read the decree aright, namely, as a decree containing the condition that the rent claimed for 1279 in excess of the ordinary rate, shall be allowed only in the event of the Appellate Court affirming a previous decree allowing a similar sum in excess as enhanced rent for the year 1278.3. The decree was positive only in regard to the amount claimed at the old rate of rent. And it seems singular that, in spite of the condition relative to the sum claimed as enhanced rent, the Court, in the execution department, should, before the appeal referred to in the decree was decided, have allowed the judgment-creditor ...
Tag this Judgment!Gyamonee Vs. Radha Romon
Court : Kolkata
Reported in : (1880)ILR5Cal592
Morris, J.1. The preliminary objection taken, that no appeal lies against the order of the Subordinate Judge in this case, must prevail. Clearly, since a decree-holder under the Act includes any person to whom a decree is transferred, and by inference any person to whom a share in a decree is transferred, the question raised is a question as between two co-decree-holders. This Court is not called upon now to determine whether Radha Romon was brought rightly or wrongly on the record as a party, and allowed to take out execution. It must be taken that he has been rightly allowed. This then being so, we consider that the provision of Clause (c) Section 244, Act X of 1877, does not apply to such a case as this. There is no question arising between the parties to the suit in which the decree was passed, or their representatives. This is practically a difference only between one decree-holder and another decree-holder.2. The appeal is dismissed with costs....
Tag this Judgment!Mrinamoyi Dabia on Behalf of Shibchand Chuckerbutty Vs. Jogodishuri Da ...
Court : Kolkata
Reported in : (1880)ILR5Cal450
Morris, J.1. The preliminary objection taken, that this appeal cannot proceed, must, we think, prevail. The minor whom the appellant Mrinamoyi represents in the appeal, was not a party, as the law requires, to the proceedings, in the Court below, nor can he be affected by these proceedings. The application for revocation of the probate, applied for by Jogodishuri, was made by Khetternath, who styled himself 'father and guardian of the minor Shibchand.' There is nothing in the record to show, and so far as the Court is aware, Khetternath had obtained no certificate under Act XL of 1858, nor had he permission granted by the Court, under the special circumstances specified in Section 3 of that Act, to represent the minor as objector in the probate proceedings. It is contended, that it may be presumed, that the Court gave the necessary permission under Section 3 to represent the minor; but we think that this permission must be formally recorded by the Court as it is an act of judicial disc...
Tag this Judgment!Gopal Dat Panday Vs. Drig Bijai Singh
Court : Kolkata
Reported in : (1881)ILR6NULL218(P.C.)
Sir R. P. Collier, J.1. In this case the plaintiff made a claim to a settlement in virtue of his under-proprietary right, which he describes as that of a 'birt zamindar,' in twenty-eight village; but that claim has now been reduced to a claim in respect of two villages and half of a third. It was at first dismissed by the Settlement Officer, on the ground that, inasmuch as the plaintiff did not prove that he had been in possession in 1262 and 1263 Fasli-in other words, in the year 1855, the year before the annexation of Oudh-his claim could not be entertained. The Commissioner of Oudh not being satisfied with the decision on this ground, remanded the case; and upon remand, first the Settlement Officer, and secondly the Commissioner, found that the plaintiff was entitled to the right he claimed, which is sometimes described as a 'birt sankalp' right, sometimes as a 'sankalp' right (some kinds of sankalp being almost identical with that of birt, some being different from it), and an unde...
Tag this Judgment!The Empress Vs. Pitambur Singh
Court : Kolkata
Reported in : (1880)ILR5Cal566
Richard Garth, C.J.1. We think it clear that, in this case, the evidence of the marriage is not sufficient to justify a conviction for adultery.2. The marriage of the woman, as observed by the learned Judges who referred the case, is as essential an element of the crime charged as the fact of the illicit intercourse, and the provisions of the Evidence Act (Section 50) seem to point out very plainly, that where the marriage is an ingredient in the offence, as in bigamy, adultery, and the enticing of married women, the fact of the marriage must be strictly proved in the regular way....
Tag this Judgment!Rajendronath Roy Bahadoor Vs. Chunnoomul and Kalee Churn Lahoree
Court : Kolkata
Reported in : (1880)ILR5Cal448
Morris, J.1. The Judge of Rajshahye, to whom the decree had been sent for execution in this case, was wrong in declining jurisdiction and in refusing to entertain the application made by the judgment debtor under Section 258 of the Civil Procedure Code. If the judgment-debtor had paid money out of Court subsequent to the order under which the certificate was sent to him from the High Court, and if his application was made in due time as required by the. law of limitation subsequent to the payment, there is nothing in our opinion to prevent the Judge from dealing with the application, because, under Section 228, the Court executing the decree sent to it 'under this chapter, shall have the same power in executing such decree as if it had been passed by itself.'2. On this ground, therefore, we reverse the order of the Judge of Rajshahye, and direct him to take up the application and deal with it as required by law. Costs to abide the result....
Tag this Judgment!Ram Manickya Dey Vs. Juggunnath Gope and ors.
Court : Kolkata
Reported in : (1880)ILR5Cal563
Morris, J.1. In our opinion the lower Appellate Court has put a wrong interpretation upon the decree of the 6th July, 1871, and has thereby extended the period for which the judgment-creditor is entitled to mesne profits.2. The decree is silent as to the date up to which mesne profits are to run. It merely says that mesne profits are to be ascertained and realized on a specified quantity of land at the time of execution of the decree. The Judge on this point observes: 'The appellant, as judgment-debtor, is quite mistaken in supposing that in the decree there are any words of limitation which would exclude the decree-holder from the items under objection. Taking the decretal order as a whole, and reading it in connection with the subsequent proceedings, I cannot help thinking that the present interpretation now set up is an after-thought.'3. Then the Judge admits that there are no terms in the decree which limit or define the period for which the judgment-debtor is liable for mesne prof...
Tag this Judgment!Bharrut Chunder Roy Vs. Kally Das Dey and ors.
Court : Kolkata
Reported in : (1880)ILR5Cal574
Jackson, J.1. The present suit was brought by the plaintiff, who is a co-sharer in a certain khas chuck in the Sunderbuns, against the defendants Nos. 1 to 7 as principal defendants and under-tenants, and against the defendants Nos. 8, 9, and 10, who appear to have been co-sharers in the chuck, for the purpose of obtaining from the principal defendants arrears of rent at an enhanced rate agreeably to notice. It is alleged, and for the purposes of this appeal we may assume it to be correct, that the plaintiff had previously been accustomed to recover rent separately from his co-sharers.2. The defendants raised various pleas; the first of them was, that the suit was improperly framed, as being a suit to enhance the rent of a moiety of the defendants' tenure. That question was embodied in the second of the four issues framed in the Court of first instance, 'whether the plaintiff, being one of several proprietors, can bring a suit for enhancement of rent.'3. The Munsif's decision upon the ...
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