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Mahomed Medhi Galistana and ors. Vs. Zoharra Begum and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1890)ILR17Cal285
AppellantMahomed Medhi Galistana and ors.
RespondentZoharra Begum and anr.
Cases ReferredBrucklebank v. East London Railway Company L.R.
Excerpt:
practice - application in suit by persons not parties thereto--lessors--receiver. - .....rights of these persian intruders, and so, if the opposition of nathmal golecha had been successful, the result might perhaps have been that part of the property would be hereditas jacens, and might accordingly fall into his hands in some way or other. we do not say that he was influenced by that hope, but casting about for a justification for his appearance, we cannot find any. however excellent his motives, we think he must pay the costs of this appeal. he must also pay his own costs of the original application. as to the appellants' costs of the original application, they are to be in the discretion of the judge dealing with the enquiry, who will have, in the suit in which this appeal is made, complete control concerning them. we must add that the infants, who appear here and who.....
Judgment:

W. Comer Petheram, C.J. and Pigot, J.

1. We think the case of Neate v. Pink 15 Sim. 450 as it stands and as explained by Mr. Justice Fry in the case of Brucklebank v. East London Railway Company L.R. 12 Ch. D. 839, shows that it is proper for, and perhaps absolutely incumbent on, this Court to make an order for an enquiry in these proceedings. It is not necessary for us to dwell upon the principle enforced in those two cases. It is clear that whatever is the least expensive course, consistent with a satisfactory enquiry, ought to be adopted, in order that the Court shall not, by its own dominant power, hold property on which the parties to the suit have no claim, and hold it in despite of the real owners. If the Court can find out who the real owners are, it should do so, and in the least expensive manner. Mr. Justice NORRIS'S order must be set aside, and in its place we order an enquiry to be held as to the rights of the applicants or such other persons as may be entitled by assignment or inheritance to the in-terest of the lessors (naming them) under the lease under which Mahomed Tuckee had a share in the property in question. This enquiry will be held by the Judge on the Original Side himself, or by such officer as he may send it to, and in such manner as he may. direct. As to costs, the burden of the appeal and of the opposition in the Original Court has been borne by Nathmal Golecha, for whom Mr. Amir Ali and Mr. Bonnerjee appear, and who, in a disinterested manner, has come forward to defend the rights, possibly, of absent parties, and who was apparently prepared to enforce some principles of the Muhammadan Law of Succession in this matter. It may be that a successful opposition to this application might have the result of frustrating the rights of these Persian intruders, and so, if the opposition of Nathmal Golecha had been successful, the result might perhaps have been that part of the property would be hereditas jacens, and might accordingly fall into his hands in some way or other. We do not say that he was influenced by that hope, but casting about for a justification for his appearance, we cannot find any. However excellent his motives, we think he must pay the costs of this appeal. He must also pay his own costs of the original application. As to the appellants' costs of the original application, they are to be in the discretion of the Judge dealing with the enquiry, who will have, in the suit in which this appeal is made, complete control concerning them. We must add that the infants, who appear here and who appeared in the Court below not withstanding they received notice that they need not appear upon the matter, cannot have any costs, either of this appeal or of the original application. Their appearance is merely cost-making, and such a course must be discouraged. Not merely do we make this order as to their costs, but we must order that the Receiver is not to pay for them any costs in this matter.


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