Court : Kolkata
Decided on : Jun-21-1921
Reported in : AIR1922Cal429,67Ind.Cas.77
..... lease of his land and were then to make a wakf of it before the expiration of the term, the wakf would be binding according to its conditions, and the contract of lease would not be voided, but on the expiration of the term the land would revert to the purposes to which it was dedicated. in like manner, if a .....Tag this Judgment!
Court : Kolkata
Decided on : Jun-14-1921
Reported in : AIR1921Cal730,66Ind.Cas.345
..... resort on behalf of the contesting defendant, that even though it should be clearly established that through the mutual mistake of the parties to the mortgage-contract, the instrument in writing did not truly express their real intention, the court cannot at any rate the court should not, in its discretion, ..... mistake might arise from the fast that the mistake was made by a writer who acted as mutual agent of both parties in reducing the contract to the form of a written instrument. where there is unilateral mistake, rectification is refused on the ground that, if the court were to ..... in the conveyance of the 11th april 1911 militates against a possible theory of fraud. consequently, if, we look at the surrounding circumstances existing when the contract was entered into, the situation of the parties, the subject-matter of the contrast, the provisions and expressions of the instrument, and if, further, ..... questions thus raised are set out in section 31 of the specific relief act:when, through fraud or a mutual mistake of the parties, a contract or other instrument in writing does not truly express their intention, either party, or his representative in-interest, may institute a suit to have the ..... ramchandra bose in the separate account tauzi no. 93a. it has further been urged in support of the appeal that, even if the alleged contract be established, the mortgage instrument cannot be rectified at this stage, after the security had merged in the decree, and the property had passed into .....Tag this Judgment!
Court : Kolkata
Decided on : Jul-22-1921
Reported in : AIR1922Cal436,69Ind.Cas.877
..... the plaintiff who knew of the previous transaction. jenkins, c.j., says ' so we have the position that the defendant first party was in possession of the lands under a contract of sale, ' and the rule in walsh v. lonsdale (1882) 21 ch. d. 9 : 52 l.j.ch. 2 : 46 l.t. 858 : 31 w.r. ..... a stranger in the land of another is not explicable, except on the supposition of an agreement, and has, therefore, constantly been received as evidence of an antecedent contract, and as sufficient to authorise an enquiry into the terms.10. it may be argued that the second of these four propositions has some analogy to the meaning ..... . cas. 467 : 52 l.j.q.b. 737 : 49 l. 303 : 31 w.r. 820 : 47 j.p. 821 may be put in four propositions.(i) the contract is not a nullify; there is nothing in the statute to estop any court...from enquiring into and taking notice of the truth of the facts.(ii) when the statute ..... is that no party to a contrast or sale of lands shall be charged upon-i.e., shall suffer judgment for the enforcement of--such contract unless, either at the time of the contract or at any time before suit, he or his agent has authenticated by signature a written statement of the terms. a casual letter to a ..... says that no action is to be brought to charge any person on a contract concerning land, it has in view the simple case in which he is chargeed upon the contract only, and not that in which there are equities resulting from res gestae subsequent to and arising out of the .....Tag this Judgment!
Court : Kolkata
Decided on : Jan-31-1921
Reported in : AIR1921Cal509,70Ind.Cas.379
..... in my judgment the events that have been referred to in detail by my learned brother were not in the contemplation of the parties to the contract when the contract was made. it was made on the 21st january 1914, it was headed shipment and/or arrival: the goods were to be shipped in july ..... construction, regard must be had to the nature and circumstances of the particular transaction; and the implied term though it may be an addition to the contract must be consistent with that express terms and with the intentions of the gathered from those terms. 'no court has a power of absolution' and ..... be supposed to have been in the contemplation of the contracting parties when the contract was made, they will not be held bound by general words which though large enough to include, were. not used with reference to ..... unqualified undertaking, where the event which causes the impossibility was or might have been anticipated and guarded against in the contract, or where the impossibility arises from the act or default of the promissor. but where the event is of such a character that it cannot reasonably ..... was held discharged from the covenant, hannen, j. in a passage often cited said:there can be no doubt that a man may by an absolute contract bind himself to perform things which subsequently become impossible, or to pay damages for the non-performance, and this construction is to be put upon an .....Tag this Judgment!
Court : Kolkata
Decided on : Jun-17-1921
Reported in : 63Ind.Cas.986
..... of rent. whatever may be the law as regards other classes of raiyats, it is quite clear on the terms of section 21 of the bengal tenancy act that, contract or no contract, every raiyat who is a settled raiyat of a village and obtains a raiyatee interest in other lands in that village, acquired a right of occupancy in those other ..... in a regular suit, to be brought by such purchaser for the adjustment of his rent, that a higher rent would have been demandable at the time such engagements were contracted by his predecessor.'59. in the old days the khudkasht raiyat, or resident cultivator, holding at the customary pargana rate, was distinguished from the paikasht raiyat, or nonresident cultivator, who ..... ejected by his landlord, except on the ground that he has broken a condition consistent with this act, and on breach of which he is, under the terms of a contract between him and his landlord, liable to be ejected.'44. now, stopping there, in my opinion, it might plausibly be contended that the second incident amounts in itself to a ..... sale, simply because they may some under the description of raiyati holding at fixed rates under the bengal tenancy act, by reason of their rent being fixed in perpetuity by contract, or by reason of their holding at the same rent from the time of the permanent settlement or by reason of a presumption arising under section 50 of the bengal .....Tag this Judgment!
Court : Kolkata
Decided on : May-02-1921
Reported in : 68Ind.Cas.993
..... judge fays that since arjun is not now in the defendants' service and since there is not sufficient evidence on plaintiff's side to prove the alleged contract by him defendants' failure to examine him is not very material. so far the learned subordinate judge relies upon the fact that arjun is not in the ..... plaintiff was entitled only to damages. acceptance of the surrender did not preclude the plaintiff from suing for damages for the breach by the defendant of the contract. it did not destroy the existing cause of action. if the plaintiff succeeded in letting the house at the same or higher rent, he would ..... 1st april 1918 and the landlords re-entered on the premises; thereupon the tenancy must be regarded as extinguished. there was in essence a breach of contract and the plaintiffs are entitled only to damages. if this view were not adopted the anomaly would arise that in a suit instituted on the 12th ..... it may be stated at the outset that there is no written lease nor is there correspondence between the parties to show that there was a contract of tenancy for a term of three years. one of the plaintiffs has pledged his oath that there was an agreement that the tenancy would continue ..... behalf of the plaintiffs, namely, first, whether there was in fact an agreement to lease for a term of three years or whether there was a contract of tenancy from month to month; secondly, assuming that there was in fact an agreement to lease for three years, whether the relation of landlord and .....Tag this Judgment!
Court : Kolkata
Decided on : May-10-1921
Reported in : 65Ind.Cas.263
..... pocket of the sellers, viz., the defendants.4. i ought to have said that it is clear that the defendants cannot rely upon section 107 of the contract act, because the provisions of that section can only be made applicable when notice has been given by the seller to the buyer of his intention to re ..... has argued that the words 'i shall be responsible for any profit or loss arising thereby' really mean very much what is provided by section 107 of the contract act, namely that on the re sale the loss, if any, should be borne by the plaintiff; and that if there were any profit, it would go ..... purpose of my judgment it is not material to go into that part of the case. the question is what would be the result under the terms of the contract, if and when the defendants re sold the remainder of the coke in stock. in my judgment that depends upon two sentences: (1) 'you (i.e. ..... waggon, it is not disputed that the plaintiff did not pay the price of the coke which he removed in accordance with the terms of the contract. that breach of the contract on the part of the plaintiff entitled the defendants to deduct the price of the contents of the 9 waggons from the deposit of rs. 201 ..... entitled to sell the remainder of the coke in stock, i agree with the argument of the learned vakil for the appellant, that under this contract, the subject-matter of the contract being ascertained goods, the property in the coke passed to the plaintiff and that after the purchase the coke in stock was the plaintiff's .....Tag this Judgment!
Court : Kolkata
Decided on : Feb-08-1921
Reported in : 65Ind.Cas.1005
..... to suffer the loss on these shares by reason of the market having gone down. how was this to be done? according to both parties, the contract in respect of the ghusick muslea shires was subsisting; but the complainant, in the events which had happened, was unwilling to part with them, except ..... made the complainant deliver the ghusick muslea shares to him.15. of course, if the finding of the learned magistrate about the cancellation of the contract relating to the bengal bridge and bolts shares is correct, the the accused was clearly guilty of an offence punishable under section 420, indian penal ..... the 31st may, the accused addressed to the complainant a letter through his pleader being exhibit g; that as the complainant did not perform the contract in respect of the bengal bridge and bolts shares and as the price thereof was going down, the accused after due notice to the complainant ..... was in fact due to him on the bridge and bolts con tract. but the complainant denied and still denies any liability over the bridge and bolts contract, in the absence of agreement or arbitration, the complainant's liability, if any, to the appellant, can be ascertained only by legation. by the ..... in the exchange gazette (exhibits hand b) while the chit (exhibit f) now produced by the appellant as that obtained from the complainant when the contract exhibit 3 was delivered, is denied by the complainant, and when compared with other documents, e.g., exhibit 2 written and signed by the complainant .....Tag this Judgment!
Court : Kolkata
Decided on : May-05-1921
Reported in : AIR1921Cal795,70Ind.Cas.498
..... he says, 'a case where the contract admittedly fixes the damages for breach at a liquidated sum and provides that it maybe sued for as a debt. what reason of public policy should prevent ..... again, i venture to think that this dictum, in view of other decisions, goes too far. i can see no reason why damages for breach of contract should not in some cases be capable of assignment without infringement of the public interests.' and then the learned judge gives an example. 'take, for example,' ..... indian for the view that a claim to unliquidated damages for breach of contract is not assignable.19. turning to the case before us, i agree that the learned judge decided, and correctly decided, on the materials placed before ..... , anything more: than a mere right to sue, a right which is not incidental to property but is incidental to abstract right in respect of contracts comparable to the abstract rights to personal safety and immunity from fraud in the region of tort. at any rate, there is authority both english and ..... which the learned counsel for the appellant argued, namely, that even if the claim was for unascertained damages arising out of the defendant's breach of contract, the assignment was not an assignment of 'a mere right to sue' within the meaning of section 6(e) of the transfer of property act. .....Tag this Judgment!
Court : Kolkata
Decided on : Jun-01-1921
Reported in : 62Ind.Cas.639
..... so that, on default, the price recoverable should vary with the maket-rate.13. it is said that the construction which we put on the contract may lead to hardship, because the landlord will not get the paddy for which he primarily bargained and which he may require for the purposes of his ..... v, gobinda chandra sinha 53 ind. cas. 382 : 30 c.l.j. 41 : 23 c.w.n. 1021 : 47 c 133. no doubt, every contract of this kind must be considered with reference to its own terms, but the language must be interpreted according to its natural and ordinary meaning and, where the money ..... view which we took. i will say frankly, that, as at present advised, in the light of later decisions, in taking that view on the contract then before us we trespassed beyond the limits of legitimate interpretation into the region of speculation. the oases have been collected by chatterjea, j., in gurudas sen ..... nature frequently come before the lower courts, and, in, my judgment, it is important that the lower courts in deciding these cases, should construe these contracts and ascertain the intention of the parties, having regard to the ordinary meaning of the language used therein, and the fair inference which can be drawn from ..... which he arrived in his judgment. i should have thought that, having decided that that clause meant that in case of default to deliver paddy the contract was that the paddy or rs. 15 should be payable with compensation, the learned judge ought to have upheld the decision of the first court. but .....Tag this Judgment!