Court : Chennai
Decided on : Apr-14-1950
Reported in : AIR1951Mad431; (1950)2MLJ597
..... doctrine of part performance, even though no conveyance had been executed. section 53a, t. p. act, dealing with part performance postulates a valid contract between the parties for the transfer of immovable property.6. the doctrine of mutuality as developed by english decisions with its deceptive appear, ance of ..... the minor's estate on a guardian's contract without being obliged to depend on a subrogation to the guardian's right of indemnity or reimbursement, whether the contract was one for necessaries supplied to the minor or whether the liability under the contract was one to which the minor's estate ..... what the minor cannot do directly by entering into a contract and the creditor can make the minor's estate liable not on the contract of the guardian, but on the principle of subrogation to the guardian's right of reimbursement or indemnity. this was the view of wallis c. j., in ..... bama jogayya v. jagannathan, 42 mad. 185: a. i. r. 1919 mad. 641 , fazl ali j. (at p. 299), was also of the opinion that the guardian of a hindu minor could not make contracts on behalf ..... was liable under hindu law.11. the distinction between the liability of a minor's estate under a mortgage or charge created by a guardian and a liability arising out of a contract .....Tag this Judgment!
Court : Chennai
Decided on : Mar-24-1950
Reported in : AIR1951Mad239; (1950)2MLJ438
..... between other contri-butories only in the proportion of the benefits which each one of them has received at the time of the original contract. section 43, contract act did not envisage such a contingency, it seems to be a causus omissus. it only speaks of the liability of all the ..... of a common burthen, and has no existence whatever, inchoate or complete, till the payment ia made. it is not, therefore, affected by what affectes the contract. that rule was necessarily the consequence of dering v. winchelsea, (1787) 1 cox. 318 : 2 bos. and p. 270 because in that case the ..... one of the joint contributors has not paid and the others have to pay that sum though those others received the benefits in the original contract in unequal proportions. there is not direct authority so far as our attention has been invited to in the indian courts except certain observations contained ..... was between the contributories themselves in proportion of the benefit enjoyed by each one of them. he relies upon the third paragraph of section 43, contract act, which lays down that it any one of two or more joint promisors makes default in such contribution, the remaining joint promisors must bear ..... then it follows that the implied obligation of the principal debtor under the contract of guarantee to keep the guarantor indemnified from any loss or damage would displace or be available to be set off against the other implication of indemnity.' this is direct authority for holding that since defendant 5 was only .....Tag this Judgment!
Court : Chennai
Decided on : Aug-16-1950
Reported in : AIR1951Mad48; (1950)2MLJ472
..... amended under section 19, madras agriculturists' relief act, and the amount recoverable by a plaintiff from the principal debtor is diminished in appeal, the surety's engagement, being one of indemnity, would diminish in like proportion; and if the sum recoverable from the principal debtor becomes zero, under the amended decree the surety's liability would also be reduced to nothing ..... , are the plaintiffs entitled to proceed against the surety they are not. to my mind, the question does not admit of any doubt. cunningham and shephard in their 'indian contract' quote the following passage from pothiar when dealing with section 134 : 'it results from the definition of a surety's engagement as being accessory to a principal obligation that the ..... to the principal debtor and which do not maintain the benefit under the madras agriculturists' relief. act given to the surety by adding to or amending the sections of the contract act or even the section of the madras agriculturists' relief act. according to him, this also shows that the madras agriculturists' relief. act never intended to extinguish the debt ..... onanson's observations:'at common law lapse of time does not affect contractual rights. such rights are of a permanent and indestructible character unless either from this nature of the contract or from its terms it be limited in point of duration. but though the rights possess this permanent character, the remedies arising from their violation are by various statutory provisions .....Tag this Judgment!
Court : Chennai
Decided on : Dec-01-1950
Reported in : AIR1951Mad917; (1951)IMLJ596
..... price thereof. c afterwards conveyed his undivided half to s, subject to the mortgage, which s assumed & agreed to pay, & gave to c a bond of indemnity against the same. s subsequetly conveyed the lot to a grantee with full covenants of warrantee & against incumbrances, & then became insolvent & left the state, having failed ..... original mortgagor but also extended to the case of any purchaser of the equity of redemption or incumbrancer who discharges a prior incumbrance which he is by contract, express or implied, bound to discharge & even to the case of a transferee from the purchaser with notice of the covenant.26. in order ..... the charge of the mortgage upon the land; & that c's rights were not affected by the fact that he had taken a bond of indemnity from s, for, as s was insolvent, his sureties on that bond might well insist that the land should be first resorted to for the ..... & demanded an assignment of the note & mortgage to a third person for his benefit, so that he might enforce them against the land for his indemnity, but the mortgagees refused to make such an assignment. it was held, on a bill in equity then brought by c against the mortgagee & the grantee ..... assignment of the security traceable to presumed intent in the case of the legal subrogation a fiction similar to that of a quasi contract underlying sections 69 & 70 of the indian contract act--& on the 'fact' of such assignment attributable to an express covenant with the party interested--the original creditor or the .....Tag this Judgment!
Court : Chennai
Decided on : Oct-03-1950
Reported in : AIR1952Mad675; (1951)IMLJ292
..... which has been registered according to the law in force for the time being as to the registration of documents, but does not preclude the admissibility of any transaction or contract in satisfaction or discharge of the obligation arising thereunder. no question as to the legal inefficacy of a mere agreement to remit as contrasted with an actual remission fell to ..... because thin. reference mayin this connection be made to pollock andmulla's commentary on indian contract andspecific relief acts (7th edn.) at page 339: 'an agreement to remit 'in future' clearlyrequires consideration, if it is to be a bindingcontract. but this must be distinguishedfrom a remission ..... this decision between a remission in 'praesenti' whichis suspended until a certain future event occursand an agreement to remit 'in future.' whichclearly requires consideration, if it is to bea binding contract, is no doubt well-founded,however tenuous it may be on the facts of aparticular case to which it may have to beapplied. the distinction in my opinion isnonetheless real ..... the document in question the court proceeded to consider the further question of law -- which is the one material to the present case--whether under section 63 of the indian contract act, the release in question could be regarded as invalid. the court ruled, after discussing the authorities bearing upon the point, that it was not the intention of the legislature .....Tag this Judgment!
Court : Chennai
Decided on : Mar-20-1950
Reported in : AIR1951Mad767
..... need not take any time for disposal as the pltf. did aver in the plaint of her readiness & willingness to perform her part of the contract & the suit itself was instituted by her espeditiously within sis mouths after the date of the execution of the agreement. the learned advocate for the ..... on behalf of the resp. a further point was alsosought to be raised, namely, that the pltf. didnot aver her readiness & willingness to perform the contract & that, in any event, there was considerable lapse of time between the date of the agreement to reconvey & the institution of the suit &, ..... holding that that discretion was not judicially exercised by the dist. munsif. the resp., however, attacked the finding of the dist. j. that the contract was not vague & uncertain & argued also that in any event, thecontract was bad as it offends the rule against the perpetuities. at the close ..... . should not have been granted a decree for specific performance in the exercise of the discretionary power vested in the ct. to decree specific performance of contracts, recognised under section 22, specific relief act. the trial ct. negatived all the contentions urged by the deft. & decreed the suit for specific performance ..... . 1500. the suit was resisted by the deft. on various grounds the chief of which & which survive in this second appeal are, that the contract is vague as regards the amount of consideration & also the time of performance & that it ia unenforceable as it offends the rule against perpetuity. it .....Tag this Judgment!
Court : Chennai
Decided on : Aug-17-1950
Reported in : AIR1951Mad870; (1951)IMLJ518
..... is, i think, this : that he is to be paid adequate compensation in money for the loss of that which he would have received had his contract been kept, & no more.'the passage cited does, no doubt, draw a distinction between the two forms of action--in delicto & in contractu--arising out ..... the present case is not, strictly speaking, necessary in the sense indicated in the passage quoted & cannot be allowed to be imported into the interpretation of the contract of service between the pltf. & the deft.3. the two main contentions for the applt. before me have been (1) that the office of the ..... . falls to be considered as at all relevant to the present case. the rule asto implication of terms not expressly found in a contract is stated thus in halsbury's law ofengland, edn. 2 vol. vii, at p. 322 : 'such an implication must in all cases be founded on ..... been adduced & canvassed, had it been appropiately raised. moreover, i am not satisfied prima facie that any such term can be implied by the ct. into the contract of service in the present case & any question of honesty & good faith about the conduct of the vice-chancellor & the syndicate in suspending & dismissing the pltf ..... applied,'the learned counsel in the later stages of the argument gave up such stress, maintaining only that, if as also contended by him, the contract of service in the present case is to be regarded as containing an implied term that the deft. should have the power to dismiss the pltf. .....Tag this Judgment!
Court : Chennai
Decided on : Jan-09-1950
Reported in : AIR1950Mad668; 181ITR734(Mad)
..... deposit.' the transaction started as advance payment of purchase money and ultimately it was changed into security deposit for the due performance of the forward contracts of the customers. the assessees themselves decided to demand from the customers a certain amount as security deposit and the amount itself was fixed by ..... also fixed by the assessees themselves and the arrangement was to treat the amount as 'security deposit' towards the dealings relating to the forward contract between the customer and the assessees which in plain language means that if there was a breach during the course of the dealings on the ..... the delivery of the goods towards the final payment of the purchase price. it was later altered into a deposit with reference to each contract variously described as 'contracts advance fixed deposit account' and 'security deposit' account. finally, under the last of the circulars an amount roughly of 30 per cent. ..... the asses-sees and the customers. that circular is in these terms:'this is to inform you that we have changed the heading of your 'contract advance fixed deposit' account into 'security deposit' account. as such, we have transferred the amount which is to your credit in the former to ..... the system of sales adopted by the assessees in selling yarn to customers was to obtain an advance of an amount in respect of forward contracts under which the assessees agreed to supply yarn to their customers. this was roughly about 80 per cent. of the sale price and when the .....Tag this Judgment!
Court : Chennai
Decided on : Apr-03-1950
Reported in : AIR1951Mad12; (1950)IIMLJ818
..... v. ramaswami mudaliar, 44 mad. 399 : (62 i. c. 354), mopurappa v. ramaswami gramani : air1934mad418 . while discarding the english doctrine of an equitable interest arising from a contract for the sale of immovable property, the legislature, perhaps unconsciously, adopted the equitable doctrine with reference to agreements to leases not only by omitting to enact a provision similar to ..... affected by the agreement long since passed out of the picture, and, the only claim in these proceedings is a personal one for damages for breach of an admitted contract against an alleged undisclosed principal who denies he was a principal.' two principles, therefore, emerge from this passage. firstly, unless the document is the foundation of a ..... possession of the villages. on 28-4-1890 theplaintiff demanded the defendant by a notice toregister the kabuliat and execute a cowle. thedefendant without carrying out the terms ofthe contract cancelled the lease without anyexcuse. the plaintiff thereupon instituted asuit for recovery of damages. the defendanthimself produced in evidence the kabuliat andthe other documents, which the plaintiff wantedto ..... immediate interest in the property, are admissible in evidence to prove an agreement to transfer, in a suit for specific performance, or as evidence of part performance of a contract, or as evidence of a collateral transaction. the decisions, therefore, which are by no meansunanimous and pronounced before 1929 to the contrary must all be taken to have .....Tag this Judgment!
Court : Chennai
Decided on : Feb-27-1950
Reported in : AIR1951Mad222; (1950)2MLJ317
..... whether the learned judges who decided raja chetti v. jagannathadas govindas : (1949)2mlj694 , would have held in such circumstances that the tenant had validly contracted himself out of the right to a fair rent and immunity from eviction conferred on him by the act. be it as it may, waiver as ..... operate to curtail the rights and privileges conferred upon him by the act. but sections 6 and 7 of the act prevent a tenant from contracting out of the terms of those sections and depriving himself of the right to insist on a fair rent and the right to continue in possession ..... control order, 1942. section 3of the control order provided for an application to the rent controller to determine the fair rent in cases where the contract rate of rent waa found to be excessive, and empowered the rent controller to fix a fair rent. though section 3 did not in terms, ..... ), hereinafter referred to as 'the act,' embodies a compromise between two well-recognised and occasionally conflicting principles, namely, the freedom of citizens to enter into contracts and the duty of the state to prevent the oppreasive exploitation of large sections of the public by a few individuals. the act was a measure intended ..... by my learned brother whether the decision in raja chetti's case. : air1950mad284 would impliedly lead to the conclusion that the tenant can also contract himself out of the benefits conferred on him by the act by taking a lease after the act containing terms and conditions which operate to curtail .....Tag this Judgment!