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Online LibraryHenry Meech LoomisThe Indian decisions (New series) : being a reprint of all the decisions of the Privy council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 4) → online text (page 70 of 167)
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(1) 2 A. 857 (863). (2) 3 M. (65). (3)5 M.H.C.R. 198.

486



1Y.] QUEEN-EMPRESS V. ABUMUGA 12 Mad. 197

According to the evidence of those witnesses, a band of twelve or thirteen 1888
men, among whom were the prisoners and witness 4, Solai, made their Nov. 22.
way into the inclosure of the temple of Ganyai Amman near Vepalapat i, tied
the hands of witnesses 1, 2 and 3, unlocked the door of the temple with A.PPEL-
a key which first witness, Gangan Pujari, had, and stole from the temple LATE
cloths, money and other articles worth about Rs. 300. CRIMINAL.

" The men also took some oranments which had been worn by Gangan
Pujari and his mother and sister, who slept at the temple that night. 12 " 198=s
They then fastened up in the temple witnesses 1, 2 [197] and 3 and the 2 Weir. 319.
mother and sister of Gangan Pujari, and then made their escape. The
property before the Oourc has been identified as part of the property stolen
from the temple, and the approver, Solai, has pointed out the two bill- hooks
and one brass pot as having been thrown into a well because none of the
robbers would take them, and the other brass pot as having been taken
by first prisoner. The seventh witness, Head Constable Subramania
Pillai, has deposed that the b ; ll-hooks and brass pot were found in the well.
First witness Gangan identified only prisoners 3 and 4. Witness 2
Virasinnu, and third witness Gurusami identified only prisoners 1 and 3,
and the complicity of prisoners 2 and 5 rests on the evidence of the
approver alone."

The Jury returned a verdict of guilty against all five prisoners, and
the Sessions Judge sentenced them to seven years' rigorous imprison-
ment.

The prisoners preferred this appeal.

Mr. Norton and Anandacharlu, for appellants.

The Acting Government Pleader (Subram~i.nyaAyyar),ior: the Crown.

The Court (COLLINS, C.J., and MUTTUSAMI AYYAB, J.) delivered
the following

JUDGMENT.

It is admitted by the Government Pleader that the case against the
second and fifth prisoners rests substantially on the evidence of the
approver, as the third witness for the prosecution did not mention the
name of fifth prisoner when before the Magistrate.

The Sessions Judge should have cautioned the Jury not to accept
the approver's evidence unless it was corroborated, and in our opinion it
is misdirection not to do so. We set aside the conviction of the second
and fifth prisoners and order them to be discharged.

As regards the first, third and fourth prisoners, there is other evi-
dence corroborating the approver. We therefore confirm the conviction of
the first, third and fourth prisoners, but we reduce the sentence to four
years' rigorous imprisonment.



487



12 Mad. 198 INDIAN DECISIONS, NEW SERIES [YoL

1889 12M. 198 <FB.).

FB _ 5 - [198] APPELLATE CIVIL FULL BENCH.

PULL Before Sir Arthur J.H. Collins, Kt., Chief Justice, Mr. Justice

BENCH Muttusami Ayyar, Mr. Justice Parker and Mr. Justice

Wilkinson.
12 M 198

(F.B.). REFERENCE PROM THE BOARD OP REVENUE UNDHR SECTION 46
OF THE INDIAN STAMP ACT, 1879.* [5th February, 1889.]

Stamp Act Act I of 1879, Section 3(11) Instrument professing to effect a partition
ultra vires of tiie executants -Instrument of partition.

Persons incorrectly purporting to be co-ownera of certain property agreed to
divide it in severally by written documents :

Held, that the arrangement fell within the definition of " instrument of par-
tition" in the Stamp Act, 1879.

CASE stated by the Boird of Revenue and referred to the High Court
under Section 46 of the Stamp Act, 1879.

The documents upon which the case stated arose ran as follows :

"Deed of relinquishment of right executed by Sree Panuganti Sesba-
rayanim Garu in favour of Sree Ravu Venkayamma Garu, wife of Sree
Ravu Gopalaurayanim Garu, and inhabitant of Katrenulai alle, Padmanay-
akavelama (by casbe) and inamdar, dated 22nd June 1887,

"Of the property which was given to your sister (my wife) Sree
Panuganti Lakshmi Venkayamma Garu and to you by your mother, which
was lent out to people, which was jointly held by the late Sree Panuganti
Lakshmi Venkayamma Garu and you, and which consists of the valuable
securities specified in the schedule, viz.. documents, bonds, notes, decrees
and debts, I take the documents, bonds, notes, decrees and debts from No. #4
to No. 179 (both inclusive) shown in the list, and renouncing all rights I
have through her to the remaining documents, bonds, notes, decrees and
debts amounting to (valued at) Rs. 17,290-6-11, from No. 1 to No. 93 (both
inclusive), I execute this deed of release in your favour. In the proceedings
you may adopt [199] to recover the money on the documents, &c., so
relinquished, neither I nor my heirs shall raise dispute of any description
at any time.

" This deed of reliquishment of right is executed with my free will
and consent.

" (Signed) SREE PANUGANTI SESHARAYANIM GARU."

"Deed of relinquishment of right executed by Sree Ravu Venkayamma
Garu in favour of Sree Panuganti Sesharayanim Garu, inhabitant of Ka-
trenulapalle, Padmanayakavelama (by caste), inamdar and son of Sree
Panuganti Butchiah Garu, dated 22nd June 1887.

'' Of the property which was given to my sister (your wife) Sree
Panuganti Lakshmi Venkayamma Garu. and to me by our mother, which
was lent out to people, which was jointly held by me and the late
Sree Panuganti Lakshmi Venkayamma Garu.. and which consists of the
valuable securities specified in the schedule, viz., documents, bonds,
notes, decrees and debts, I take the documents, bonds, notes, decrees and
debts, from item No. 1 to item No. 93, (both inclusive) shown in the list,
and renouncing all rights I have to the remaining documents, bonds, notes,
decrees, debts, amounting to (valued at) Rs. 16,906-9 5, from item No.
94 to item No. 179 as per list, I execute this deed of release in your

Referred Case No. 16 of 1889.
488



IY.] EEPERENCE UNDER STAMP ACT, S. 46 12 Mad. 200

favour. In the proceedings you may adopt to recover the money on the 188&

documents, &c., so relinquished, neither I nor my heirs shall raise dispute FEB. 5,
of any description at any time.

" This deed of relinquishment of right is executed with my free will FULL

and consent. BENCH.
"(Signed) SREK RAVU VENKAYAMMA GARU."

12 M. 19S

The case was stated as follows : tF.B.).

The Board are not. unanimous, and the case will, therefore, be sub-
mitted, under Section 46 of the General Stamp Act, to the Honorable the
Judges of the High Court for decision.

" The facts are briefly as follows : a mother died leaving property to
two daughters, who enjoyed in jointly; one daughter died and her hus-
band quarrelled with the surviving daughter about the property ; to stop
such quarrelling, a division of the property was made between the surviv-
ing daughter and the deceased daughter's husband, whiob is evidenced
by the two documents, the nature and liability of which to duty are the
matters now under discussion.

[200] " The documents are counterparts of each other and run as
follows :

" Deed of relinquishment of right of f my sister and me
the property which was given to 1 my wife and you

, / our ) mother, which waa held f my sister and me [ I UkefromJ 1-93 )
^ ( your J jointly by \ my wife and you j No. ( 94-179 J

on the accompanying list, and renouncing all rights I may have to the
remainder, execute this deed of release in your favour."

^Signed)

" The first question is, can the two documents be read together? The
Board think not.

" The second is, individually, what are they ? On the face of them,,
they are releases, and the Board think that it is only by what tney purport
outwardly to be that they can he judged for purposes of stamp-duty.

" If once the question of their legal validity is entered on, the matter
becomes more complicated ; for the husband having no right to the
property can execute no valid ' release,' and the surviving daughter's
' relinquishment of right ' in his favor becomes a gift.

At the same time each document contains an acceptance as well
as release, and, prima facie, this is a partition ; and it is only when the
legality of the matter is gone into that it is seen that the two parties
are not co-owners.

" Taken together, the two documents evidence a partition ; taken
singly, they evidence a release ; legally, only one of them is of any effect,
and that is as a gift.

" The point, therefore, upon which the Board are in doubt is as to
the extent to which they are justified, for purposes of assessment to
stamp-duty, in going behind the outward purport of a document, and
considering its actual legal validity, whether by itself, or taken in connec-
tion with others, and they accordingly refer, for the decision of the High
Court, the question how the documents ought to be stamped."

The Acting Government Pleader (Subramanya Ayyar), for the Board
of Revenue.

Subba Rau, contra.

489
M IV 62



12 Mad. 201 INDIAN DECISIONS, NEW SERIES [Yol.

1889 [201] The Full Bench (COLLINS, C.J., MUTTUSAMI AYYAB, PARKER

FEB. 5. and WILKINSON, JJ.) delivered the following

FULL JUDGMENT.

BKNCH. Although the documents are styled releases, we are of opinion that

12 M~198 * ney are rea 'ly instruments of partition.

,p B . The parties purport 10 be co-owners of the property and in that

capacity agree to divide the property in Severn Ity.

This arrangement falls within the definition of " instrument of
partition " in Clause 11, Section 3 of the Stamp Act.



12 H. 201.
APPELLATE CRIMINAL.

Before Mr. Justice Muttusami Ayyar and Mr. Justice Parker.



QUEEN-EMPRESS v. SOBHANADRI.* [llth February, 1889.]

Criminal Procedure Code, Section 195 - Sanction to prosecute Registration Act
Act 111 of 1877, Sections 34, 35, 41 Forged document Registered by Sub-
Registrar.

A mortgagor was charged with making a fraudulent alteration in his mortgage-
deed which was then registered by a Sub-Registrar :

Hell, that the sanction of the Sub- Registrar was not necessary for a prose-
cution on a charge of forgery.

Venkatachala, inre (I.L.R., 10 Mad., 154), Queen- Empress v. Subba (I.L.R.,
11 Mad. ,3) explained.

[F., 4 M.L J. 189 (192).]

CASE reported for the orders of the High Court by W. A. Happell,
District Magistrate of Godavari, under Section 438 of the Code of Criminal
Procedure.

Rallabhandi Sobhanadri was charged in the Court of the Sub- Magis-
trate of Kothapetta with committing forgery by fraudulently altering a
mortgage-deed. The mortgage-deed was subsequently registered. The
question arose whether the Magistrate bad jurisdiction to take cognizance
of the offence for want of sanction under Section 195 of the Code of Crimi-
nal Procedure.

The case was stated as follows :

" The complainant, Tadigadapa Gopalakrishnamma, who attested a
mortgage deed executed by the accused Rallabhandi Sobhanadri, on 30th
October 1888, in favour of Vogeti Ramakrishnayya, asserts that, after the
deed was executed, but before it was registered, the [202] accused struck
outthe words'Tadigadapa Gopalakrishnamma Garu's inam ,' and inserted
the words 'my inam field' instead, that he did so with a dishonest inten-
tion, viz., to assert his claim to field 557 which belonged to the complain-
ant, and that he thereby committed forgery. This mortgage-deed has
been registered by the Kothapetta Sub -Registrar ; and if a Sub-Registrar
is a Court within the meaning of Section 195 of the Code of Criminal
Procedure, then the Sub-Magistrate had no power to entertain the com-
plaint without the Sub-Registrar's sanction.

" In 1881 Mr. Justice Innes decided that a Sub-Registrar is not a
Court (see Weir's Criminal Rulings, 1882, page 400). A few years later a



* Criminal Revision Case No. 34 of 1889.

490



IY.] QUEEN-EMPBESS V. SOBHANADRI 12 Mad. 203

Divisional Bench of the High Court in Queen- Empress v. Subba(l) decided 1889
that a Sub-Registrar is not a Court. In 1886, another Divisional Bench of FEB. 11.
the High Court in Venkatachala, in re (2) decided that a Sub-Registrar is a
Court. The latest ruling, however, is that of the Bombay High Court in APPEL-
Queen- Empress v. Tulja (3), and they ruled that a Sub-Registrar is not a LATE
Court within the meaning of Section 195 of the Code of Criminal Procedure. CRIMINAL.

My own opinion is that a Sub-Registrar is not a Court. That was the

opinion I held in 1886 and which I communicated to the Mayavaram Sub-
Magistrate, who, in consequence, committed a certain forgery case to the
Tanjore Sessions ; but that opinion was overruled by Brandt and Parker,
JJ., in in re Venkatachala. Their ruling, though the latest passed by the
Madras High Court is opposed to two previous rulings of the same Court
and to a ruling of the Bombay High Court. I therefore request that the
question be referred to the High Court for an authoritative ruling."

Counsel were not instructed.

The further facts appear from the judgment of the Court (MUTTU-
SAMI AYYAB and PARKEK, JJ.).

JUDGMENT.

The decision of Turner, C. J., and Hutchins, J., now reported in
Queen-Empress v. Subba (1), was not overlooked in the case in re Vencata-
chala (2J, but the ground on which it was distinguished was that in the
earlier case, the Sub-Registrar was acting under part VI (Sections 34-35)
of the Registration Act and in the latter case under part VIII (Section
41).

[203] In the former case, the Sub-Registrar could not determine
whether or not the document was executed, and if execution was denied,
he was obliged to refuse registration. The document could hanily there-
fore be said to be given in evidence before him by a party to any proceed-
ing ; whereas in the latter case (that of a will), Section 41 makes ifc
incumbent upon the Sub-Registrar to satisfy himself that the document
has been really executed by the testator, and the document has to be
given in evidence before him in a proceeding in which the Sub-Registrar
has to determine whether it shall or shall not be registered. A Sub-
Registrar acting under Section 41 is exercising similar powers to a
Registrar acting under Sections 73-75, as to which see High Court
Proceedings, 12th May, 1881, No. 962 (4). We think, therefore, the
Joint- Magistrate is in error in saying that the two rulings of this Court
are in conflict, though we agree with him that in the case under reference,
the sanction of the Sub-Registrar is not necessary. The Bombay case,
Queen-Empress v. Tulja (3), is no doubt in conflict with the Madras deci-
sion in re Venkatachala, it may be well if the point again arises that the
question should be reconsidered.



(1) 11 M. 3. (2) 10 M. 154. (3) 12 B. 36.

(4) Weir's Criminal Rulings, 3rd ed., p. 844

491



12 Mad. 204



INDIAN DECISIONS, NEW SERIES



[YoL



1889
FEB. 15.

FULL

BENCH.

12 M. 203

(F.B.) =
1 Weir 758.



12 H. 203 <P.B) = 1 Weir 758.
APPELLATE CIVIL FULL BENCH.

Before Sir Arthur J. H. Collins, Kt., Chief Justice, Mr. Justice

Muttusami Ayyar, Mr. Justice Parker and

Mr. Justice Wilkinson.



REFERENCE UNDER SECTION 39 OF ACT V OF 1882.*
[llth September, 1888 and 15th February. 1889.]

Forest Act Act V of 1882 (Madras), Section 6 Tree patta Occupier of land.

The holder of a tree patta is a known occupier of land within the meaning of
Section 6 of the Madras Forest Act.

[F., 12 M. 226 (228); R., 21 M. 433 (466) ; 36 M. 148 (149) =22 M L.J. 201 (203) =
10 M L.T. 488 = (1911) 2M.WN. 532.]

CASE stated for the opinion of tbe High Court by G. Mac Watters,
Collector of Salem, under Section 39 of the Madras Forest Act.

This case depended on the construction of the last; clause of Section 6
of the Madras Forest Act. The question referred was whether Madhava
Rau and eleven others, who held a joint patta with him of certain tamarind
trees, were entitled to be served with a notice [204] to the same effect as.
the proclamation made by a Forest Settlement officer on a notification of
Government under Section 4.1

* Referred Case No. 3 of 1887.

t Section 4 : " Whenever it is proposed to constitute any land a resprvel forest, the
Governor-in -Council shall publish a notification in the Fort St. George Gazette and in
the Official Gaaette of tbe district

(a) specifying, as nearly as possible, the situation and limits of suoh land ;
(6) declaring that it is proposed to constitute such land a reserved forest ;
(c) appointing an officer (hereinafter callel the Forest, Settlement officer) to
enquire into and determine the existence, nature and extent of any rights
claimed by, or alleged to exist in favor of, any person in or over any land
comprised within such limits, or to any forest produce of suoh land, and
to deal with the same as provided in this chapter.

The officer appointed under clause (c) of this section shall ordinarily he a person
other than a forest officer ; but a forest officer may be appointed by the Governor in
Council to attend on behalf of Government at the enquiry prescribed by this
chapter."

Stction 6 ; " When a notification has been issued under section 4, the Forest Settle-
ment officer shall publish in the Official Gazttte of tbe district, and at, the bead-quarters
of each taluk in which any portion of the land included in such no'ification is situate
in every town and village in the neighbourhood of such laud, a proclamation

(a) specifying, as nearly as possible, the situation and limits of the land proposed

to be included wir.bin tbe reserved forest ;
(6) setting forth the substance of the provisions of section 7 ;

(c) explaining the consequences which, as hereinafter provided, will ensue on the

reservation of such forest ; and

(d) fixing a period of not less than three months from the date of publishing

such proclamation in the Official Gazette of the district and requiring every
person claiming any right referred to in section 4. either to present to such
officer, within such period, a written notice specifying, or to appear before
him within such period and state the nature of such right, and in either
case to produce all documents in support thereof.

Tbe Forest Settlement officer shall also serve a notice to the same effect on every
known or reputed owner or occupier of any land included in or adjoining tbe land pro-
posed to be constituted a reserved forest, or on his recognized agt-nt or manager. Such
notice may be sent by registered post to persons residing beyond the limits of the
district in which such laud is situate "



492



IT.]



REFERENCE UNDER FOREST ACT, S. 39



12 Mad. 206



The pattadars in question, not having been served as above, did not
assert their claim till after the expiry of the time fixed in the proclamation.
Subsequently, however, the following application was made :

" There is a tree patta for II tamarind trees in Naralapulli village.
These trees were held on patta and enjoyed for the last 6 years by my
brothers Srinivasa Bow and Hanumancha Row, and, after them, by their
sons Vyasamurthi Row and Vencoba Row and were leased for 5 years from
1884 to oue Th;immana Ctietti of Chinna Mekalapully.

[205] " Now I hear that the trees have been included in the
Maharajagadai Reserve, and I was also told by the lessee when I had been
to Maharajagadai a fow days ago, that it was decided by your honor that
the lessee should enjoy the trees until his lease expired, and that then the
tope should be included in the Government reserve. The Government
accounts and village officers will prove that my brothers and others held
the patta, and we enjoyed the trees for the last GO years. I request that
an enquiry be made and the topa in question confirmed as per patta and
excluded from the reserve. I don't know, perhaps, the time for the
preference of a claim expired or did not expire as I was given no notice
in the matter. I only casually came to know of this affair when I had
been to Maharajagadai. I therefore request that my claim may be
admitted under Section 17 of the Forest Act and disposed of in the regular
way."

On the 15th November, 1886, the Forest Settlement Officer passed the
following order :

" Claimant is not entitled to have any notice served on him under
the Forest Act, as he does cot own or occupy land in the reserve. It is
possible that the facts stated in his petition are true, as is partly proved
by the evidence on record in the claim No. 279 of 1886. As the time
for preference of claims has now expired, I cannot entertain his claim ;
he will have to satisfy the Collector or District Forest Officer hereafter
that his claim is a just one, which fact no doubt the village accounts will
prove, but I cannot now entertain the claim. He should also keep this
endorsement."

An appeal against this order was preferred to the Collector of Salem.
who referred for the ooinion of the High Court the question whether "a
notice should have been served on Madhava Rau and his joint pattadars
in respect of the tamarind trees for which they hold a joint patta."

Under this reference the High Court (MUTTUSAMI AYYAR and
BRANDT, JJ.) delivered the following

JUDGMENT.

" The facts of the case are sufficiently stated in the letter of reference.
" Act V of 1882 (Madras), Section 2, explains that ' trees ' include stumps,
" bamboos, and brushwood, and that ' timber ' includes trees when they
" have fallen or have been felled, whether cut up for any purpose or not;
*' but there is no definition of land, or of a tree which continues to derive
" nourishments from the land. The Madras General Clauses Act contains
" no definition of land, and the General Clauses Act, 1868, is in
" [206] terms, applicable only to Acts of the Governor- General in Council.
" One of the objects of the Madras Forest Act is to provide a special
' tribunal and procedure for the adjudication of civil rights of a particular
" class ; and having regard to the provisions of the General Clauses Act,
we have already held that for the purposes of the Code of Civil Procedure

493



1889

FEB. 15.



BENCH.

12 M~203

( p g \ = *
Wejr ?38



12 Mad. 207



INDIAN DECISIONS, NEW SERIES



[Yol.



1889
FEH. 15.

FULL
BENCH.

12 M 203

(F.B.) =

1 Weir 758.



" land includes standing crops (1). We understand the right claimed by
" the petitioner to include a right to the site on which the trees stand as
" well as their produce.

" We are of opinion then that the holder of a tree patta is an owner or
" occupier of land within the meaning of the last clause of Section 6 of the
" Forest Act. We express no opinion as to the effect of the words ' known
" or repute'! ' owner or occupier in that section as they do not form the sub-
" ject as reference."

With regard to the sentence at the end of the first paragraph of the
above judgment the Collector of Salem was directed to explain the matter
more particularly and to make a further reference to the High Court.

These directions were contained in an order of Government (made on
certain proceedings of the Board of Revenue), dated 21st November 1837,
in which it was said :

" In Government Order No. 51, Revenue Department, dated 20bh
January 1887, it was held that the so-called " tree pattadars are mere
lessees of trees and not owners or occupiers of land " and not therefore
entitled to separate notices under Section 6 of the Forest Act.

" Government can give and frequently have given separate pattas to
different persons for the cultivation of the land on which trees stand and
for the enjoyment of the produce of the trees themselves. Under Board's
Standing Order No. 6 (8) the tree pattadar has only a " preferential claim "
to a patta for the land, if applied for by another for cultivation. The
tree patta merely gives the pattadar a right to certain specific " forest
produce," and this, of course, carries with it the right of. access. A right
to forest produce is placed on the same level in the Act (Section 11) as
rights of way, water-course and pasture ; but it has never been contended
that persons having these latter rights are, as [207] such, entitled to sepa-
rate notices. The proclamations in the villages and Gazette are intended
to give them notice."

In his further letter of reference, the Collector .quoted circular orders
of the Board of Revenue, dated 21st April 1858 and 28th April 1859,
respectively, and the proceedings of the Board of Revenue, dated 27th
March 1868, and proceeded to say :

" In Malabar, Tanjore and Tinnevelly the tree patta carries with it
the right to the land on which the trees stand, when in these districts
the tree tax is considered a substitute for the land assessment, and in all
districts, whenerer the tree assessment is nearly equal to or exceeds the



Online LibraryHenry Meech LoomisThe Indian decisions (New series) : being a reprint of all the decisions of the Privy council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 4) → online text (page 70 of 167)