Court : Orissa
Reported in : AIR1951Ori362
..... had long been common in india as stated in the preamble to bengal reg. no. i of 1798; that such contracts were recognised & enforced 'according to their letter by the ancient hindu law as it appears from several passages' in colebrooke's digest vol. i, pp. 183, 187, 188 & 193; that they were equally recognised & enforced by mohammedan ..... the special features of the present case, or demonstrate the practical application of the general & fundamental rules laid down by the privy council from time to time. the ancient law of india, both in the hindu & mohammedan jurisprudence, recognised the conditional sale as a kind of mortgage. the transaction of this kind of mortgage passed by various names, viz., bye-bil-wuffa, gahanlahan ..... board, was that of 'balkishen das v. legge', 27 ia 58. here too, the transaction was anterior to the t. p. act. their lordships, while noticing that, according to the ancient law in india, a mortgage by conditional sale was enforceable according to the letter under which time was of the essence of the contract, on construction of the two deeds before ..... by the british courts of equity that the time stipulated in a mortgage deed is not of the essence of the contract; & that such a doctrine was unknown to the ancient law of india, (d) 1875: the case of 'thumbasawmy mudelly v. mohomed hossain', 2 ia 241, laid down most emphatically, approving the decision of the board in the case of 'pattabhiramier .....Tag this Judgment!
Court : Orissa
Reported in : AIR1991Ori134; I(1991)DMC39; 1991(I)OLR33
..... custom of adoption assumes great importance in the instant case as a custom is pleaded to overcome a prohibition. the origin of custom of adoption is lost in antiquity. the ancient hindu law recognised twelve kinds of sons of whom five were adopted. the five kinds of adopted sons in early times must have been of very secondaryimportance, for, on the whole, they ..... saves any such custom or generally makes exception in favour of rules of custom. (see mulla's principles of hindu law, fifteenth edition, at pages 67-68). nothing has been shown to me that an exception of this nature existed in the old hindu law. the ancient texts provide for a custom, but imperate it not to be opposed to dharma, that means as already ..... has to be proved that it is not opposed to public policy and that it is ancient, inveriable, continuous, notorious, not expressly forbidden by the legislature and not opposed to morality or public policy. it is not disputed that even under the old hindu law adoption during the lifetime of a male issue was specifically prohibited. in addition i have observed that such ..... pointed out it should not be immoral and opposed to public interest. 6. it is a well established principle of law that though custom has the effect of overriding law which is purely personal, it cannot .....Tag this Judgment!
Court : Orissa
Reported in : AIR1953Ori290
..... with men, and it would be fantastic to suggest that they should be deemed to have been kept in perpetual dependence as was enjoined by the ancient hindu law. i would refer to a later case of the bombay high court in -- 'vinayak v. goyind', 25 bom 129 1. jenkins c. j ..... analogies which have heretofore prevailed in like cases.' this is also the view of the ancient hindu law-givers. brihaspati says that the decision in a doubtful case is by four means. dharma refers to moral laws or rules of justice, equity and good conscience. kautilya states in his arthasastra that whenever ..... namely, brij behari, was in existence and his consent had not been taken.7. i am therefore unable to discover anyauthority either in the hindu law texts or inthe reported cases, for making a distinctionbetween the consent of a male reversioner andthat of a female reversioner. it must be remembered ..... mere concurrence of bai vakat, albeit the nearest in succession (haying regard to the state of dependence in which all women are supposed by hindu law to have their being) be regarded as affording the slightest presumption that the alienation was a justifiable one.'it was recognised in that case that ..... a rule of evidence which isapplicable both to males and females and thereis no apparent reason for applying that ruledifferently in the two cases. the ancient hindulaw has undergone several changes and hasbeen considerably modified by rules of justice,equity and good conscience so as to suit changing conditions. as their .....Tag this Judgment!
Court : Orissa
Reported in : AIR1951Ori378
..... sharer but the widows of all other predeceased coparceners, both ascendant and descendant, as co-sharers. this is entirely beyond anything that even the ancient hindu law contemplated.33. further, it should be noticed that it is not merely the quantum of the share on a future partition that is adversely ..... the theory that the process that takes place at that psychological moment is one of inheritance as distinguished from devolution by survivorship. the law amends the hindu law to the effect of adding the widow to the list of survivors as if she would be a member in the corporate body ..... widowed prior to the act are not intended to be benefited by its provisions. the act is intituled as an act to amend the hindu law governing hindu women's right to property. the scope and object, except what appear from the preamble, are sought to be succinctly epitomised in section ..... conception of property. for the sake of perspicuity and clear visualisation of the differences as to the incidence of the newly introduced rule into the hindu law of succession, the legislature has been particularly careful to maintain the two different phraseologies. in sub-section (3), the word 'interest' has been ..... devolution adversely affects the rights of each coparcener vested in him from the moment of his birth, defined and determined with reference to fixed hindu law rules and may also have the effect of adversely affecting past transactions. the machinery in the act provided for benefiting mitakshara joint family .....Tag this Judgment!
Court : Orissa
Reported in : AIR1955Ori179; 21(1955)CLT328
..... on the principle that the accused being presumed to be innocent in the criminal law as administered in this country, the expenses required for the defence are not avyavaharika debt.he contends that under the ancient hindu law a hindu who commits an offence should confess and expiate the guilt by penance.in support ..... a serious criminal charge.'17. the learned counsel for the appellant contended that the principle of hindu law that the sons are not liable to pay the avyavaharika debts of the father based -upon ancient hindu texts should not be construed in the light of a system of criminal jurisprudence developed long after ..... of his contention he relies upon, an observation made in the case of 'air 1939 bom 289 (h)' referred to above. in the course of the judgment, beaumont c. j. observed:'it seems to me repugnant to good sense to construe ancient ..... trespass act, in the case of -- 'dhanukdhari singh v. rambirich singh', air 1922 pat 553 (l), it was held:'the rule of hindu law upon which the act of the karta and his dealing with the family property are binding upon the other members of the family does not restrict ..... defending a criminal case against the karta of the family is a debt for legal necessity and is also not an avyavaharika debt.in mayne's hindu law, edn. 11, at page 405, it is observed,'so too, debts contracted by the' father for the expense of defending himself in suits .....Tag this Judgment!
Court : Orissa
Reported in : 1991CriLJ3216; II(1991)DMC618
..... act, 1955 does not apply to the parties who are admittedly members of the s.t. in view of sec. 2(2) of the said act and the ancient hindu law does not forbid a hindu to marry another wife during the subsistence of any prior marriage.9. so far as the second point is concerned, it is seen that the assertion of the ..... and contends that the marriage of the o.p. with the petitioner, if there was any, was void ab initio according to sec. 11 read with sec. 5 of the hindu marriage act, 1955, the same having been solemnised during the subsistence of the marriage of the o.p. with nirupama pradhan and as such the petitioner is not entitled to ..... been laid down in a number of decisions by this court that a proceeding under section 125 of the code is of summary nature and that the intricacies of the law are not required to be gone into and that where the man and woman lived together as husband and wife and treated as such by the community and the man .....Tag this Judgment!
Court : Orissa
Reported in : AIR1999Ori166; 88(1999)CLT665
..... hand is a classic example as to how in genuine methods can be adopted to assert backward status.6. the origin of custom of adoption is lost in antiquity. the ancient hindu law recognised twelve kinds of sons of whom five were adopted. the five kinds of adopted sons in early times must have been of very secondary importance, for, on the whole ..... upon the desirability of a scrutiny committee and for streamlining the procedure for issuance of a social status certificate.5. caste is the group or division into which a hindu is born. hindu law recognises four main castes of division. brarnhana, kshatria, vaisya and sudra. the division or caste is very important, since ceremonies in each caste for marriage, adoption etc. differ from ..... considerations; and, devolution of property is only of secondary importance.in air 1954 sc 581, horn singh v. harnam singh, it was observed by the supreme court that under the hindu law adoption is primarily a religious act intended to confer spiritual benefit on the adaptor and some of the rules have therefore been held to be mandatory, and compliance with them ..... motive was only secondary; but although the secular motive was dominant, the religious motive was undeniable. the religious motive for adoption never altogether excluded the secular motive. (see maync's hindu law and usage, twelfth edition, page 329).as held by the supreme court in air 1963 sc 185, v.t.s. chandrasekhara mudaliar v. kulandeivelu mudaliar, substitution of a son for .....Tag this Judgment!
Court : Orissa
Reported in : AIR1997Ori47
..... autobiography of russel'. divorce by mutual consent is one of the modes of easy divorce. divorce was not known to the ancient hindu law. the reason is that a marriage from the hindu point of view creates an indissoluble tie between the husband and the wife. neither party, therefore, to a marriage can ..... the relief of divorce to all hindus on all india basis. the customary divorce was not permissible to the three regenerate classes under the traditional hindu law. initially,statutory grounds of divorce did not include divorce by mutual consent. provision for divorce by mutual consent in terms of section 13b were ..... of litigations coming to courts seeking judicial separation, divorce, grant of maintenance what comes to mind is shakespeare's words in merchant of venice : 'the ancient saying is no her say, hanging and wiving go by destiny.' the immortal writer had written : 'a young man married is a man that's ..... fundamentally undermined the marriage. these aspects were highlighted by mr. peras dawan, an eminant writer in an article named as 'divorce structure of the hindu marriage act, 1955 and special marriage act, 1954'.6. a danish proverb says that a deaf husband and a blind wife are always a happy ..... inevitable tension of marriage. these aspects were highlighted in great detail by justice khanna in a speech delivered in the inaugural seminar on the 'hindu marriage act and special marriage act' on 21-2-1975.5. wedded as it was to the doctrine of indissolubility of marriage (marriage being .....Tag this Judgment!
Court : Orissa
Reported in : AIR1976Ori43
..... the hotchpot. there is no partition by metes and bounds of the immovable properties in suit. claim for jyesthansa cannot be entertained as the theory of jyesthansa as understood in ancient hindu law has become obsolete.5. mr. k.n. jena, learned counsel for the appellants, raised only three contentions, viz:--(a) the finding of adoption rendered by the trial court is erroneous ..... ) the plaintiff is the adopted son of mohana.(b) the suit is not barred by limitation.(c) the plaintiff is not entitled to get jyesthansa which has become obsolete in hindu law and there is no proof of any custom. in partitioning the suit properties in schedules a, b and c, the properties in schedules d, e and f, of which the ..... upon the footing that the adoption was a valid act have taken place, the initial burden necessarily shifts to the person who challenges its validity. the law on this point is stated in mulla's hindu law, 13th edn, article 512 at page 519 as follows:--'but when there is a lapse of 55 years between the adoption and its being questioned, every ..... even though the normal rule is that one who seeks to deflect the natural line of succession to property by alleging adoption must discharge that heavy burden, in cases of ancient adoption every allowance for the absence of evidence to prove such fact must be favourably entertained. where there is a long lapse of years between the adoption and the time .....Tag this Judgment!
Court : Orissa
Reported in : AIR2004Ori5; 96(2003)CLT246; 2003(II)OLR270
..... could not be divided in specie.8. the discussions made above leads to an irresistible conclusion that under the hindu law, both ancient and modern, a passage or a common road for ingress and egress is inpartible and indivisible. under the provisions of the hindu law, if a particular passage is kept joint in a partition legally entered into, the presumption is that it would ..... common passage by a decree in a suit for partition for the use of the co-parceners, none of them is entitled to a partition of that strip.mayne's hindu law, in chapter xv, deals with partition. para-438 thereof stipulates the property indivisible by its nature, such as, apparel, carriages, riding horses, ornaments, dressed food, water, pasture ground, roads, ..... be partitioned at a subsequent stage at the instance of one of the parties.7. as stated above, undisputably parties to the suit are governed by hindu law. stake's collection on hindu law mitakshara chapter 1 deals with 'assets not liable to partition'. the relevant paragraph reads as follows :'other things' exempt from partition have been enumerated by manu.clothes, vehicles, ornaments, prepared ..... :the unsuccessful defendant in a suit for partition is the appellant. the sole plaintiff and the sole defendant represent two branches of the same family. admittedly they are governed by hindu law. they are two brothers, being sons of one late gandharba bardhan. a partition was effected by metes and bounds among the several co-sharers' in title suit no. 5 .....Tag this Judgment!