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Brojomohun Doss and ors. Vs. Hurrololl
Court : Kolkata
Reported in : (1880)ILR5Cal700
Richard Garth, C.J.1. In this case we agree with the opinion of the lower Court, that even if the plaintiffs have proved themselves to be the heirs of the testator, they are excluded by his will from taking any interest in his estate. The will devotes his estate to religious and charitable trusts exclusively.2. But the plaintiffs have argued before us, that even if they have no personal interest, still they are entitled as heirs to see that the religious and charitable trusts are properly carried out, inasmuch as there is no one else to put the Court in motion, and thus obtain the due administration of the trusts.3. It has never yet, we believe, been decided that the representatives of a testator are entitled to sue for the enforcement of trusts created by him for religious or charitable purposes, but in which they are not personally interested. In England the due administration of charitable and religious trusts is enforced by the information of the Attorney-General at the relation of...
Tag this Judgment!Roshun Doosadh and Two ors. Vs. the Empress
Court : Kolkata
Reported in : (1880)ILR5Cal768
Prinsep, J.1. We think that there roust be a new Trial in this case.2. The three persons were charged, under Section 411 of the Indian Penal Code, with having dishonestly been in possession of certain articles claimed by the complainant, as property stolen from his house. A dohur and pugree were found with the prisoner Roshun. The complainant and a friend identified these as the property of the former; Roshun, on the other hand, stated that they were his, but that statement was unsupported by any evidence. The Sessions Judge was quite correct in putting it to the jury, 'to say whether there is any reason to. believe that they (the complainant and his friend) have made any mistake,' but he was clearly wrong in adding, 'the fact that he (Roshun) has been twice imprisoned for theft is also not without its weight, and should be taken by you into consideration when deciding as to the credibility of the evidence of identification.' Section 54 of the Evidence Act, though it declares that 'the...
Tag this Judgment!Gudadhur Paul Chowdhry and ors. Vs. Bhyrub Chunder Bhuttacharji and an ...
Court : Kolkata
Reported in : (1880)ILR5Cal918
Jackson, J.1. The grant was of great antiquity, and could not be regularly proved. It was therefore necessary to consider very carefully whether it came from proper custody, whether it had on any occasion seen the light before, and whether the previous circumstances were consistent with the fact of their having such grant; and upon the estimate of the evidence in this point of view, the Judge's judgment appears to us to be open to objection. The District Judge does not admit the reasons given by the Munsif for believing in the genuineness of this grant, and it is impossible to conceive that he could have approved of them. They appear, indeed, to be puerile. The defendants felt the necessity of showing that this document had seen the light before, and it was therefore stated that it had been produced on some former occasion in the Office of the Collector of Tipperah. On that the Judge says: It is, however, quite clear that it was filed in the Court of the Collector of Tipperah, and the ...
Tag this Judgment!imrit Tewari and ors. Vs. Suput Singh and ors.
Court : Kolkata
Reported in : (1880)ILR5Cal720
Richard Garth, C.J.1. The first point raised by Mr. Sandel on behalf of the appellants is, whether limitation does not apply to the whole of the plaintiffs' claim.2. It appears that the suit was brought on the 14th of December 1877 by Imrit Tewari, Kolessur Tewari, Harihur Tewari, and Jhinga Tewari, who had paid the whole of the damages decreed against them and other defendants in a former suit for cutting down some trees growing upon land, of which they were the tenants.3. After the plaint had been filed, and before the summons to the defendants had been issued, the plaintiffs assigned their interest in the present claim to certain other persons, named Syud Mukrum Hossain and Suput Singh; and it seems, that the summons to the defendants issued in the names of those persons (the assignees), and not of the original plaintiffs in the suit. It also appears that, at the time when the assignees' names were first introduced into the proceedings, the claim would have been barred by limitation...
Tag this Judgment!Ram Sahai Sing and anr. Vs. Maniram and ors.
Court : Kolkata
Reported in : (1880)ILR5Cal807
Pontifex, J.1. The rule that has been argued before us discloses rather a peculiar state of circumstances. The applicants, in October 1877, applied to the Subordinate Judge of Patna for permission to sue as paupers. On the 28th February 1878 he rejected that application, on the ground that he was bound to do so, as in his opinion, according to the plaintiffs' own petition, they were barred by limitation. Against that order the applicants made an appeal to this Court; but, on the 19th August 1878, this Court, considering the matter not properly a matter for appeal, dealt with it as follows by way of revision,--holding that, at that stage, the application could not be rejected on the score of limitation applying. They said that, as the applicants had paid the stamp fees on the appeal on the principle of having given up their claim for mesne profits, they might apply to the Court below again to admit their application as paupers if the mesne profits were excluded from their petition. Ther...
Tag this Judgment!Hajee Syud Mahomed Vs. Mussamut Ashrufoonnissa
Court : Kolkata
Reported in : (1880)ILR5Cal759
Pontifex, J.1. In order to bring the case within Article 87 of Act IX of 1871, and to prevent limitation, the plaintiff would have to show that there was a mutual, open, and current account between the parties, in which there were reciprocal demands. Now I must say that I should have considerable hesitation in holding that there was ever between these parties a mutual account, although, in the instances, which I have mentioned, the defendant had in fact paid moneys into plaintiff's bank which were in excess of his liabilities; for I do not think that the defendant could at any time have said--'I have an account against you, the banker.' During nearly the whole of that time the banker could have said 'I have an account against you, the defendant;' but unless they could each have said to the other. 'I have an account against you,' I do not see how these could be 'mutual' accounts. But even supposing that the accounts between these two parties could be called mutual accounts, and that the...
Tag this Judgment!Beerchunder Manikya Vs. Maymana Bibee and ors.
Court : Kolkata
Reported in : (1880)ILR5Cal736
Morris, J.1. In this case the decree was transferred for execution from the Court of the Munsif of Ramroygram, Zilla Tippera, to the Court of the Munsif of Begumgunge in Zilla Noakhally. The decree-holder applied to the Munsif for execution by sale of the immoveable property of the judgment-debtor. The Munsif allowed the application. On appeal the Judge dismissed it, on the ground that, as the provisions of Section 65 of the Rent Law were applicable to the case, the decree-holder ought first to have shown that he was unable to obtain satisfaction by execution against the person or immoveable property of the debtor,2. This, we observe, is the condition precedent which the law enjoins 'within the district in which the suit is instituted' before a judgment-creditor can take out execution against the immoveable property of his debtor. But in the present instance the application for execution against the immoveable property of the debtor was not made within the district in which the suit wa...
Tag this Judgment!Ramkrishna Dass Surrowji Vs. Surfunnissa Begum and ors.
Court : Kolkata
Reported in : (1881)ILR6Cal129
J. W. Colvile, J.1. In this case the appellant sued on a mortgage title, completed, as he alleged, by foreclosure under Reg. XVII of 1806, Section 8, to recover possession of the property in suit from the respondent, who held it as purchaser at an execution-sale in a suit against the mortgagor. The mortgage-deed was in the English form, with a power of sale. Inasmuch as it was sought to be enforced in the mofussil, the procedure prescribed by the Regulation has been applied to it as if it were a mere bye-bil-wafa, or deed of conditional sale. The suit is the ordinary suit, which, in such cases, the mortgagee, who has foreclosed, is obliged to bring in order to recover possession of the mortgaged premises, with this difference only, viz., that it is brought against the purchaser under the execution-sale as well as against the mortgagor, and that the former is the substantial defendant.2. In such a suit the plaintiff has to make out his title to dispossess the other party, and any object...
Tag this Judgment!Noban Nusya and anr. Vs. Dhon Mahomed
Court : Kolkata
Reported in : (1880)ILR5Cal820
Prinsep, J.1. This was a suit brought under Section 77 of the Registration Act, III of 1877, to obtain a decree, directing the registration of a document which had been refused by the Registrar.2. The document in this case was one falling within Section 17, Clause (b), and was a bynanama, declaring the right of the plaintiff to receive a conveyance within thirty days from the execution of that deed, or in default the bynanama should be considered as such conveyance. 3. The defendants, apparently, refused to execute the conveyance, and the plaintiff, more than four months after the date of the execution of the deed, applied for registration of the bynanama.4. The District Judge, on appeal, considers that the right to obtain registration dated from the default of the defendants to execute the conveyance, and that the bynanama having then become a conveyance, the time for applying for registration commenced on that date. It is quite clear, however, that the view taken by the District Judg...
Tag this Judgment!The Empress Vs. Kherode Chunder Mozumdar and ors.
Court : Kolkata
Reported in : (1880)ILR5Cal717
Jackson, J.1. It appears to us that this was properly a case cognizable under Section 471 of the Indian Penal Code, and not under Section 196; and that, consequently, the Magistrate had no jurisdiction to convict, but ought to have committed the prisoner for trial to the Court of Session. We observe that there is only one case--Queen v. Oodun Lall (3 W.R., Cr., 17)--in which incidentally a conviction in a case somewhat resembling the present appears to have been held legal under Section 196; but there the conviction had taken place before a Sessions Judge with the aid of a jury, and the question of jurisdiction did not arise. We are not aware that that dictum has been followed in other cases, and that was a ruling by a single Judge. We think the conviction must be set aside, and that the Magistrate should commit the prisoner for trial....
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