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T. F. Brown and anr. Vs. G. M. Cutts and anr.
Court : Kolkata
Reported in : (1881)ILR6Cal328
Mr. Phillips.1. It was not necessary to obtain the leave of the Court under Section 44, Rule (a) of the Civil Procedure Code, to join the different causes of action upon which the plaintiffs rely. A suit for the specific performance of an agreement to sell a share in a house is not a 'suit for the recovery of immoveable property' within the meaning of that section. Possibly this might be held to be a 'suit for land or other immoveable property 'within Section 12 of the Charter, but those words are more comprehensive than the words used in Section 44, Rule (a). The defendants contend that the plaintiffs cannot obtain specific performance of the agreement until they have performed certain terms and conditions which are not stated in the agreement. Those terms and conditions would have to be proved by parol evidence, and the case of Daimoddee Paik v. Kaim Taridar (I. L. R., 5 Cal. 300) is an authority to show that parol evidence cannot be given to vary the terms of the written agreement.2...
Tag this Judgment!Soobhul Chunder Paul Vs. Nitye Churn Bysack
Court : Kolkata
Reported in : (1881)ILR6Cal663
Wilson, J.The plaintiff obtained a decree against one Kristo Chunder Chowdry; and, in execution of that decree, he attached a house of his judgment-debtor. The defendant held a mortgage of the house. The plaintiff in this suit claims to redeem that mortgage.The case came on for settlement of issues. The first question that arises is, whether an attaching-creditor is entitled, as such, to redeem a mortgage subsisting prior to his attachment. If this question be answered in the negative, it is unnecessary to consider any of the other questions of law or of fact which have been raised.The position of an attaching-creditor and his rights with respect to the land are dependent entirely upon certain Sections of the Civil Procedure Code. The governing Section is Section 276: 'When an attachment has been made by actual seizure or by written order duly intimated and made known in manner aforesaid, any private alienation of the property attached whether by sale, gift, mortgage or otherwise, and ...
Tag this Judgment!In Re: Shrish Chunder Mookhopadhya and anr.
Court : Kolkata
Reported in : (1881)ILR6Cal161
White, J.1. This is an appeal against the order of the Judge of the 24-Pargannas, declining to sanction a lease, which sanction was applied for by Nitumbini Debi, as guardian of her two infant sons, under Section 18 of Act XL of 1858.2. The case was opened to us as one in which the Court had refused to go into the question of whether the proposed lease was for the advantage of the infants or not; but the order, when read, shows that the Judge merely declined to sanction the lease, and having regard to the materials that were put before him in the petition, we cannot say that he was wrong.3. In applications under Section 18 the Court is bound to go into the question, whether or not the proposed sale is one which it is for the benefit of the infant that the guardian should be empowered to execute. On this point we may adopt the language used by the present Chief Justice in Sikher Chund v. Dulputty Singh (I. L. R., 5 Cal., 363, at p. 381) where he says:---'The Civil Court has now not only...
Tag this Judgment!Sheetanath Mookerjee Vs. Promothonath Mookerjee and anr.
Court : Kolkata
Reported in : (1881)ILR6Cal303
White, J.1. I think that the Judge, Mr. DICKENS, was right in his view, both of the law and of the facts in this case.2. Under Act XXVII of 1860 the Court is to determine the right to the certificate, subject to an appeal to this Court.3. It appears to me, having regard both to the language and also to the authorities upon the construction of the Act, that when there are two claimants for the certificate, and they dispute between themselves as to the right to the certificate, the Judge ought to determine between those two claimants which of them has the preferential right to the certificate. So also, if one of them only claims the certificate, and the other merely opposes the grant, there is no difference made in the duty of the Judge by the fact, that the opponent alleges himself to be the adopted son of the deceased, and the claimant is the man who would be the heir of the deceased if the adoption had not been made. In the present case the certificate was applied for by the man who w...
Tag this Judgment!Chatraput Singh Vs. Grindra Chunder Roy and anr.
Court : Kolkata
Reported in : (1881)ILR6Cal389
White, J.1. The appellant was the plaintiff in the lower Court, and that Court dismissed his suit without going into evidence. The question, therefore, to be determined upon this appeal is, whether in his plaint he stated a case which, if proved, would entitle him to the relief which he sought against the defendants. The following are the material allegations in his plaint:---That, on the 9th of December 1878, he purchased an eight-anna share of a large zamindari under a decree that was obtained against the defendants; that, after that date, a large sum of money became due in respect of the third quarter's Government revenue for the year 1878-79, and also in respect of the road cess and public works cess for the same quarter; that on the 13th January 1879, the last day for paying the same, he paid the entire amount into the Government treasury; that, prior to the date of his auction-purchase, he had no right in the property which he had bought; that the defendants, down to the 8th of D...
Tag this Judgment!Run Bahadoor Singh Vs. Lucho Kooer
Court : Kolkata
Reported in : (1881)ILR6Cal406
Pontifex, J.1. (who, after going into the merits of the case at some length, and stating the facts material to the question of res judicata, continued):2. The question we have now to determine is, whether the prior decisions affect the present suit and the title set up by the plaintiff as res judicata. It is to be observed that only a special appeal could be preferred to the High Court against the judgment of the Subordinate Judge (though, as a matter of fact, no special appeal was preferred), and that this rent-suit related to only one mouza, or part of a mouza, held under one only of the mokuraris.3. But, on the other hand, the two mokuraris, though separate, were exactly similar titles; and it has never been part of the plaintiff's case, that different parts of Bishen Singh's property are governed by different circumstances. Indeed the evidence in the rent-suit applies generally to the commensality or separation of the plaintiff and Murlidhur; and that was the issue which the plaint...
Tag this Judgment!Freck Vs. Harley
Court : Kolkata
Reported in : (1881)ILR6Cal418
Richard Garth, C.J.1. It appears to us that the real answer to this suit was rather a matter of law than of jurisdiction, but we think that the questions referred to should be answered as follows:2. (i) A plea to the jurisdiction is a plea in bar; and, therefore, the proper judgment would be, that the suit be dismissed; but whatever may be the form used, it should be stated that the suit abates or is dismissed 'for want of jurisdiction,' otherwise the plaintiff might be prejudiced when he brings his suit in another Court.3. (ii) We think that the Court has power in such a case to award costs to the defendant. The question of jurisdiction is one which the Court is bound to try, and as the plaintiff invites the trial by bringing his suit, it is only right that he should pay costs if he turns out to be wrong. It appears to us that the cases of Lawford v. Partridge (1 H. & N., 621) and Peacock v. The Queen (4 C. B., N. S., 264, at p. 278) have been virtually overruled by the case of McInto...
Tag this Judgment!In Re: Upendro Lall Bose
Court : Kolkata
Reported in : (1881)ILR6Cal675
Richard Garth, C.J.1. There is no doubt that the plaint in this case has been verified in an irregular way; but having heard Mr. Kennedy's explanation, we have already informed him, in the course of the argument, that we entirely acquit his client of any intentional impropriety.2. The mistake which he has made in the form of verification has evidently arisen from his confounding the permission to verify the plaint itself, which is provided for by Section 51 of the Code, with the power to sign the plaint on behalf of his client, which is provided for in the addition to that section made by the amending Act XII of 1879, Section 11.3. He obtained leave upon the usual petition to verify the plaint himself, and then, instead of doing so, he signed the plaintiff's own name to the verification, describing himself as the plaintiff's attorney for that purpose.4. The result is, that neither the plaintiff nor his attorney could be made criminally responsible for any false statements there may be ...
Tag this Judgment!Monohur Das Vs. Radha Pershad Misser
Court : Kolkata
Reported in : (1881)ILR6Cal317
Richard Garth, C.J.1. We think that, having regard to the rule laid down by the Full Bench in Emam Momtazooddeen Mahomed v. Rajcoomar Das (14 B. L. R., 408; s.c., 23 W. R., 187), and to subsequent decisions of this Court, amongst which we may specially notice the cases of Byjnath Singh v. Goberdhun Lall Mohasohree (24 W. R., 210) and Chiet Narain Singh v. Gunga Pershad (25 W. R., 216), we cannot do otherwise than allow the appeal, and dismiss the plaintiff's suit.2. It is clear that the covenant entered into by the mortgagor in the mortgage-bond of 1867 did not render invalid the zurpeshgi lease which was subsequently granted. We have held in other cases that such a covenant only creates a personal liability as between the mortgagor and the mortgagee.3. Then it is also clear, that the subsequent sale under the decree of 1873 did not put an end to the zurpeshgi lease, (sic) affect the interests of the zurpeshgidar.4. The plaintiff has, therefore, no right to sue for khas possession of t...
Tag this Judgment!Bykunt Nath Roy Vs. Mokundo Lall Roy
Court : Kolkata
Reported in : (1881)ILR6Cal289
Prinsep, J.1. The only point raised by the defendant, special appellant before us, is, that, by reason of his being an adopted, and not a naturally begotten, son of Brojo Nath Roy, the plaintiff is no heir to Gour Kishore under Hindu law, an adopted son not being recognized as a sakulya or samanodaka, nor is entitled to inherit if he be not a sapinda or related within three degrees from the common ancestor.2. The general principle is very clearly laid down in the Dattaka Mimansal 6, para 53:Without difference, relation to the father and other sires of the adopter obtains in the same manner as relation to the general family, the family deity, and family rules of that person; the term 'son' is used without restriction in these and other passages.3. Unless, therefore, we found some authority clearly restricting the rights of inheritance on the part of an adopted son, and declaring that they are something less than those of the naturally begotton son, we certainly should make no distinctio...
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