Court : Kolkata
Reported in : (1876)ILR1Cal169
Richard Garth, C.J.1. In this case an unlimited grant of probate in the usual form has been granted to the executor of Mr. Murray Gladstone by PHEAR, J., and the only question which we have to decide is, whether any duty should be paid in respect to the two properties mentioned in the petition, viz., an indigo factory in Tirhoot, and a share in the premises Nos. 5 to 8 Olive Street, Calcutta, which formed part of the partnership property of the firm of Gillanders, Arbuthnot and Co., of which the testator, Mr. Murray Gladstone, was a member. It is stated in the petition, that Mr. Murray Gladstone was one of the persons to whom both these properties were conveyed, and it is therefore necessary, in order to enable the firm to deal with them, that probate of Mr. Gladstone's will should be taken out in this country; but it is contended that no duty should be charged in respect to those properties, because, by some arrangement between the partners, Mr. Gladstone's share of the partnership as...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal276
L.S. Jackson, J.1. The question which we have been called upon to consider in this special appeal is whether the plaintiff has any right to maintain the present suit as the right heir, under the Hindu law, to the property which is claimed in this suit. That property was given to the deceased wife of the plaintiff after their marriage and during the continuance of the marriage state by the husband's father's sister's son. It is admitted that this property was the stridhan of the deceased wife, and that the plaintiff claims it as being preferable heir to such property on her decease. This was a matter objected to by the defendant in his written statement. The Munsif dismissed the suit upon other grounds, but did not go into this question. On appeal before the Subordinate Judge, he reversed the decision of the Munsif as regards the grounds on which it rested, and, having then to decide this question, he disposed of it in this wise.2. The learned Judge read the portion of the Subordinate J...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom159
Michael Westropp, C.J.1. It is not alleged on behalf of the respondent that there is a substantial error in the decree of the Appellate Court. If there be such an error occasioned by the fault of the officer in drawing up the decree, the proper remedy, after the decree has been sealed, is review. But it is said that by comparing that decree with the notes of the Deputy Registrar, or with an alleged copy of, or extract from, the notes of Sir R. Couch, we shall perceive that the decree means something more than it now appears to us to do. That something more, however, is, in fact, a most important variation from the decree now before us. We think we cannot look at the notes of the Deputy Registrar, or those said but not proved to have been taken from the book of Sir R. Couch for the purpose of construing the decree of the Appellate Court. That decree should be construed as it stands, without any reference to those notes. We do not say that we might not refer to such notes on a motion to ...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom592
Kemball, J.1. The plaintiff brought this suit to recover possession of 4,800 bighorn of land, forming the Kolhati Bawa's Inam in the village of Shirasgam, together with mesne profits including certain haks acquired from the Pant Sachiv. It appears from the Judge's judgment that at one time the Peishwa, Scindia, and Pant Sachiv, all possessed certain rights in this land, as also, presumably, in all the land of the village. The Peishwa's rights came to the British Government after the conquest of the Deccan, while those of the Pant Sachiv were made over to the plaintiff's family. With regard, however, to Scindia's rights, it appears that in 1852-53 a dispute arose between Scindia's Government and the plaintiff's family. The agent for His Highness Scindia applied to the Collector of the district for assistance to levy the full assessment on the land, contending that the case set up, that Scindia's rights had been made over to plaintiff's family, was false; but as the assessment had alread...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal114
Ainslie, J.1. The points which have been urged before us are, that, whereas Section 119 provides a definite limit of time, beyond which an application for a rehearing shall not be entertained by the Court, the order of the Judge admitting the application, and all the proceedings following thereon, have been done without sanction of law; and that in this appeal from the decree, the appellant has a right to question every order of the subordinate Courts leading up to the decree objected to.2. Section 119 of the Code of Civil Procedure says that, in all cases in which the Court shall pass an order under this section for setting aside a judgment, the order shall be final. But it is contended on the strength of a Full Bench judgment in Bhyrub Chunder Surma Chowdhry v. Madhubram Surmah 11 B.L.R. 423 that the word 'final' does not mean final absolutely, but final for the time; that the order by itself shall not be open to appeal; but that whenever the case is opened by an appeal from the decr...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom197
Michael Westropp, C.J.1. The object of the first defendant (appellant) in giving the instrument Exhibit 17 in evidence is to show that Kazi Muhammad's mortgage lien on the land has been extinguished, and was so previously to the alleged transfer or assignment of that lien to the plaintiff; and if the document be genuine and admissible in evidence, it would, no doubt, be efficacious for that purpose, and a complete defence to this suit, which is maintainable only on the hypothesis that the mortgage to Kazi Muhammad is a still existing and unsatisfied security.2. We deem it unnecessary to enter upon the question of the sufficiency of the stamp, inasmuch as we think, whether we look to Act XX of 1866 or Act VIII of 1871, that the non-registration of Exhibit 17 renders it inadmissible for the purpose for which it is sought to be given in evidence in this suit.3. Act XX of 1866, Section 17, requires that the following instruments be registered:Clause 1. Instruments of gift of immoveable pro...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal357
Phear, J.1. This case now comes before us by reason of its having been removed to this Court from the Court of the Magistrate of Calcutta, Northern Division, by an order made under Section 147 of the High Courts' Criminal Procedure Act.2. The learned Standing Counsel, on behalf of the Crown, objected that the order had been irregularly made, because the Crown was not served with notice of the application for it, and was not given an opportunity of being heard upon that application. We are of opinion, however, that when, as in the present case, a conviction has been arrived at by the Magistrate, and the petitioner is actually suffering imprisonment there under, it is within the discretion of this Court to order for sufficient prima facie cause shown, on the application of the prisoner, that the case be removed, without notice to the Crown. We intimated our readiness to give time to the Standing Counsel, if he required it, for the purpose of this hearing, but he said he was quite prepare...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal42
Kemp, J.1. The plaintiff is the appellant in this case. He sued three sets of defendants to recover a sum of Rs. 8,088-8-6, due under a bond dated the 28th of Assin 1269 Fuslee, corresponding with the 17th of October 1861. The principal amount borrowed was Rs. 2,600, and interest is claimed from the 28th Assin 1269, the date of the bond, to the 28th Bysack 1281, date of suit, being twelve years and seven months, at the rate of Re. 1-8 per mensem, the total amount of interest claimed being Rs. 5,488-8-6. The bond was admitted by the principal defendants, the judgment-debtors. They were examined, and they also stated that, after the bond fell due, they were unable to pay it, and that they agreed to go on paying interest. The first defendants are the purchasers of a portion of the property which was mortgaged to the plaintiff as security for the sum advanced by him to the principal defendants. The Subordinate Judge has given the plaintiff a modified decree for a sum of Rs. 2,875-9-6 out o...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal125
Glover, J.1. We cannot go behind the order of remand made by this Court on the 15th January 1874. The case was then sent back to the Assistant Commissioner 'to have it distinctly tried what is the nature of the defendant's tenure. On the finding on that issue will depend whether or not the plaintiff is entitled to recover in this suit on the notice which he has already served.'2. Both the lower Courts have now found that the defendant's tenure is a 'tullubi bromottur one,' held as such from the time of the perpetual settlement, and, therefore, such an intermediate tenure as entitles the holder to a notice under Section 51, Regulation VIII of 1793.* * *3. There is, undoubtedly, evidence on the record showing that, at the time of the decennial settlement, the defendant's holding was entered in the records as a tullubi bromuttur one paying a quit-rent of sicca Rs. 182-9, and that the Judicial Commissioner has found that this was the nature of the holding.4. In Rajah Nilmoney Singh v. Chun...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom164
Melvill, J.1. In this case the plaintiff asks that his wife, the first defendant, may be compelled to return to him, and that the second defendant, in whose house she has been living and who has opposed her return, may be ordered to deliver her up.2. It has been faintly argued at the bar that a suit for the restitution of conjugal rights will not lie in our Courts, or, at all events, that a decree ordering such restitution cannot be enforced; and, in support of this argument we have been referred to a judgment of Mr. Justice Markby, reported 14 Ben. L.R., 298. That judgment does not deny, and the decision of the Privy Council in Moonshee. Buzloor Ruheem v. Shumsoonissa Begum 11 Moo I.A., 551 conclusively establishes that such a suit may be maintained. The question of the mode of enforcing the Court's decree is at present premature, and we only allude to it as affecting the question of the admissibility of the suit. If it were admitted that a Court could not enforce its decree, that wou...
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