Court : Kolkata
Decided on : Apr-22-1931
Reported in : AIR1932Cal182,136Ind.Cas.893
..... seeing that the prayer for relief against all the, defendants and against the estate was there. defendant 2 understood quite well that it was the indemnity to which the plaintiff desired to be surrogated as is evident from the passages from the written statement quoted above.31. we accordingly feel no ..... guardians of infants or the managing members of joint families or heads of religious endowments have or have not been allowed to be subrogated to the indemnity which such guardians, managing members or heads of religious endowments may have against the respective estates. we do not refer to those cases because ..... carrying on of the testator's business for the period of three years that they did. whatever right therefore the executors may have to an indemnity as between themselves and the beneficiaries, they had no such right as against the creditors.25. from the cases cited above the proposition may be ..... the course of the administration, for the purposes of the estate is personally liable for the payment of such debts, subject to his right of indemnity against the estate upon proof that the borrowing was in all respects proper and for the benefit of the estate. in that case the borrowing ..... to the necessary extent, and unless the right of the executor to the indemnity is established the creditor has none as against the estate. we are speaking here of simple cases of loans on promissory notes or hatchittas or other contracts, that is to say, cases where no charge has validly been created .....Tag this Judgment!
Court : Kolkata
Decided on : Jan-13-1931
Reported in : AIR1931Cal676
..... damages and the question of indemnity doubtless would overlap in the circumstances of these agencies, and in the case of the burmah oil company we knew that the sum of rupees 12 lakhs ..... of the figure that is arrived at by means of the application of that test.13. no doubt cases like the present where the assessees had no contract for a fixed term of years may present features which render this line of reasoning less convincing. when a clerk is given three months wages 'in ..... that exemption, the circumstance that the receipt is casual or nonrecurring does not ground any claim to resist the tax. but if a has a favourable contract of service for ten years at a salary of 500 per annum more than any other employer would give him, and if at the end of ..... no meaning in the section; and it is at least arguable that what the draftsman meant to say is that when there is no express or implied contract that the agency should continue for any fixed period reasonable notice must be given of the revocation or renunciation of the agency &c.; the question of ..... principal, yet this rule is subject to exception arising from the particular circumstances of the case: and in india the matter has been dealt with by the contract act. section 206 lays down:reasonable notice must be given of such revocation or renunciation: otherwise the damage thereby resulting to the principal or the agent, .....Tag this Judgment!
Court : Kolkata
Decided on : Aug-31-1931
Reported in : AIR1932Cal275
..... in construing the english act lord shaw observed in bradford corporation v. meyers (18):the same principle applies where the act complained of arose through broach of contract or through tort. i take no stock of such distinction for the act does not; it speaks of 'an act done.' in numerous cases the one ..... the individual citizen, consumer, or customer to enter into or to decline. and an action on either side founded on the performance or nonperformance of that contract is one to which the protection, does not apply, because the appeal which is made to a court of law does not rest on statutory or public ..... to supply gas to the inhabitants of the district and they were empowered to sell the coke produced in the manufacture of the gas. the defendants contracted to sell and deliver a ton of coke to the plaintiff and by the negligence of their agent the coke was shot through the plaintiffs' shop ..... directly in execution or intended execution of their public duty or authoritywhich would seem to suggest that it would not apply to an action based upon a contract which was only incidental to their duty. a decision of very high authority is that of the house of lords in bradford corporation v. myers [19161 ..... what is the meaning of the word 'act' or in other words does the expression ''suit in respect of an act' include a suit on a contract; and 2nd, is there a real distinction intended between suits against the secretary of state for india in council and suits against public officials?14. there is .....Tag this Judgment!
Court : Kolkata
Decided on : Aug-27-1931
Reported in : AIR1932Cal879,140Ind.Cas.877
..... 2 k.b.519 what was being dealt with was another proposition altogether. it was argued there that because a portion of the goods were according to contract therefore the buyer must accept that portion. the court said 'no.' there was much discussion about section 30 of the english act (which relates to ..... exercised before the time and place for inspection had been [reached: see the english section 34 (1), not so clear in section 38, indian contract act. moreover even if the goods were inspected, or the time and place for inspection had been passed, if the goods had some concealed defect which ..... several purposes for which the goods in question are used. in this connexion, mr. pugh has argued two subsidiary points. first, that under section 115, contract act, there is no implied warranty of fitness by reason of the fact that the goods were of a 'well-known kind.' this section however in ..... that these goods 'disconformed substantially' [mccardie in wimble sons & co. v. lillico & sons  38 t.l.b. 296] from the description in the contract. i therefore answer question (1) in the affirmative and question (2) in the negative. the next question is as to implied condition of fitness. i will deal ..... this point are as follows: smell is undoubtedly a quality which can form part of the description of the goods. obviously, if there was a contract for odourless paraffin oil goods carrying smell would not conform to the description. so, if the standard make of paraffin oil of certain manufacturer x .....Tag this Judgment!
Court : Kolkata
Decided on : Aug-14-1931
..... to this middle-aged and apparently lustful bridegroom. i regret that i feel bound to come to the conclusion, on the language employed in this contract, that the terms of the special conditions are not sufficiently explicit to bring the matter within the scope of the decision in muhammad muinuddin v ..... having sexual relations with her granddaughter under the cloak of marriage. the fact that, under moslem law, marriage is regarded merely as a civil contract and not a religious sacrament may perhaps make some difference to the moral aspect of the plaintiff's conduct, but one cannot be oblivious of ..... however to ask myself in the first place whether the defendant was validly divorced and if so whether, under the terms of the marriage contract between the parties, the defendant is entitled to receive anything more than that which a divorced mahomedan wife is entitled to receive under the general ..... difficulties arising on the question whether a counter-claim is strictly admissible or not, in a case of this description, if the terms of the contract between the parties so warranted, it would only be just and equitable that the defendant should receive, at the hands of the court, proper ..... life. she relies mainly upon a clause which seems to show that, if the plaintiff made any breach of the conditions contained in the marriage contract, the defendant would be justified in living separately from the plaintiff and that, thereupon, the plaintiff would be under the obligation of making suitable .....Tag this Judgment!
Court : Kolkata
Decided on : Mar-26-1931
Reported in : AIR1932Cal328
..... that the signed paper was never intended to be a record of the terms of the agreement, for they never had agreeing minds; or they may show that a written contract, which has no date, was not intended to operate from its delivery, but from a future uncertain period; or they may show that the parties never intended the signed paper ..... other eases it has been laid down that the true meaning of the words any obligation' in prov. 3, section 92 is any obligation whatever under the contract, and not some particular obligation which the contract may contain. provisos (l.) and  25 cal. 401 in substance follow pym v. campbell  6 e. & b. 370 and davis v. jones  17 ..... that way, in our opinion, is not what the proviso contemplates: to allow such splitting up would be to vary the contract taken as a whole. in our opinion, an understanding: that no obligation would ever arise upon: the contract or an agreement that the appellants would be liable only as sureties is not provable under the proviso.12. nothing that has ..... been argued that the terms of settlement in this case should be regarded as not one, but as consisting of several contracts, at least two, and that, so far as the appellants are concerned, it should be taken that the contract that was evidenced by the terms of settlement, as between the plaintiff on the one hand and the appellants on the .....Tag this Judgment!
Court : Kolkata
Decided on : Jun-11-1931
Reported in : AIR1932Cal508,138Ind.Cas.545
..... were terms there which do not appear in the present case especially the expression with regard to the jama and the mode in which the jama was described in the contract there.8. the document is of a comparatively recent date. it was executed in 1911 and the suit is brought against, the original tenant. there is no case of succession ..... would be in occupation from generation to generation and that he would be liable to pay any additional sum if levied by the crown. there were other terms of the contract also which influenced the court to hold that the rent was fixed in perpetuity. these terms do not appear in the present lease which must be construed on its own ..... this court in his judgment but it is indisputable that every case of this nature has to be decided on its own facts and upon the peculiar terms of the contract involved in it.3. the kahuliyat in this case opens with the words which if translated will mean that the kabuliyat relates to 'jamijama' which is not transferable with the ..... sukul v. midnapore zamindary co. ltd.  38 c.l.j. 369.5. the question whether the rent is fixed tinder the contract, as i have already said, must be decided on the construction of the terms of the contract itself in each particular case. one important feature in the cases which have held that rent is presumed to be fixed in .....Tag this Judgment!
Court : Kolkata
Decided on : Feb-19-1931
Reported in : AIR1932Cal243
..... of limitation in the technical sense. if the law of limitation is to apply at all upon the footing that the cause of action arose immediately after the contract was broken in the sense that the measurement did not take place at the appointed time then it is obvious that whatever period of limitation might have been appropriate ..... judgment the learned chief justice sir, richard couch said:we think that the suit is barred by the law of limitation. the cause of action arose when the contract that there should be a new measurement was broken. at what precise time in 1269 it may be said to have been broken we need not determine. it ..... been brought under the provisions of section 52, ben. ten. act, 1885. proceedings under that section were, of course, available to the landlord irrespective of any special contract between the parties if proper proceedings were taken; but then it is necessary to make all cosharer landlords parties to the proceedings. the learned advocate for the respondents admits that ..... date of the cause of action, which had expired before the plaintiff made his purchase. there is not a fresh cause of action for every year. the contract is not to measure in 1269 or at any future time when it may be demanded by the tenant, but it is a ..... contract to measure at that time and the omission to do so created a cause of action.13. the learned chief justice then continues thus. but oven .....Tag this Judgment!
Court : Kolkata
Decided on : Jul-22-1931
Reported in : AIR1932Cal524,138Ind.Cas.852
..... said date and without any notice to the borrowers but without prejudice to their right of suit against them, either by public auction or by private contract, absolutely sell or otherwise dispose of the pledged goods. it appears that the plaintiff instituted the present 'suit, in which as already stated he had ..... that case that page was entitled to priority because by taking possession before allen he had used superior diligence. it was argued that a person who contracts for an interest-in-personal property must complete his title by possession, or in the case of a chose in action by giving notice of his ..... give to the buyer of goods a better title to those goods than he himself has is not an inflexible proposition as the exceptions to section 108, contract act, will show. on behalf of the plaintiff, in order to show that the mortgagee should have priority, reliance has been placed upon some other ..... (s. 172). a 'bailment' as defined in the said act is the delivery of goods by one parson to another for some purpose upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them (8. 148). ..... existence in future, and when it has coma into existence equity, treating as clone that which ought to be done, fastens upon that property, and the contract to assign thus becomes a complete assignment: see also holroyd v. marshall  10 h.l. 1917. in the absence of any statutory enactment, this .....Tag this Judgment!
Court : Kolkata
Decided on : May-20-1931
Reported in : AIR1932Cal481
..... to the appeal on its merits, the point that has been raised is that the plaintiff is not entitled to claim specific performance of the contract. this contract, as mentioned already, is contained in a kabuliyat or patta of 15th chaitra 1286. the recital shows that certain reservations were made with regard to ..... the fact that previously plaintiff obtained decrees against the defendant's predecessor-in-interest makes-no difference. defendant himself never complied with this part of the contract, nor was there any previous decree against him, nor has any plea of res judicata been urged in this case.7. for all these reasons, ..... brought to the notice of the learned subordinate judge in the court below and he distinguished it on the ground that, in that case, the contract had not been enforced for 50 years and a plea of waiver was raised. but that makes no difference. the ratio decidendi was what i ..... 5.4. this latter description cannot apply to the prayer in this case. this is clear from a consideration of the contract itself, to which i shall presently refer. but meanwhile i may say that, in the view that i have taken, the preliminary objection that no second ..... farther:'an action' for delivery of a specific chatttel differs from an action for specific performance. since it is based on an allegation, not that a contract to deliver has not been performed, but that the chattel is the property of the plaintiff and is being wrongfully detained by the defendant: ibid., p. .....Tag this Judgment!