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The Indian decisions (New series) : being a re-print 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 7) online

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Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print 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 7) → online text (page 102 of 155)
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work of undoubted authority. The passage cited from p. 332. Teheran
edition, of the Jami-ul-Shattat also speaks with no uncertain voice so far
as fcbis question is concerned.

I was at first much pressed by a difficulty raised by the learned Pan-

dit and based on the portion of this extract beginning, " J,o Uj'^l Ul. "
as showing that instances must occur, and occur frequently, in which
there could be no acceptance by the beneficiaries of the waqf, and where
either the doctrine that every waqf was of the nature of a contract, or
else the waqf itself must fail ; but, as my brother Mahmood has pointed
out, the passage becomes quite clear and consistant when compared with
what has been [497] written by the author of the Durus on the same
point in the passage beginning "

I will only now comment briefly on two other arguments addressed
to us by Pandit Sundar Lai for which at first there seemed to be some
fonrriaMon of authority, and which would, if correct, militate against the
doctrine noticed above. The learned Pandit contended at the commence-
ment of his argument that a legal waqf could be constituted under the
Shia law and operation made to depend on the occurrence of an event in
the future if thai event were quite certain and positive. This view seems
to have found favour with the learned author of the Tagore Law Lectures
for 1884 ; but after careful research no sound authority for this view was
adduced, at any rate from the Sharayi-ul-Islam, in fact all the texts of
higher authority say that immediate operation must be given by the
waqif, or appropriator of a waqf, to the waqf. The difficulty also which
the same learned Counsel raised and founded upon the passage from the

****if*Miab " has been well

Jawahir-ul-Ealam beginning-" ^


met by Mr. Karamat Husain in the distinction which he drew in
argument between a wasiyat-bil-tvaqf and a waqf-bii-ivasiyat.

Once the doctrine that according to the Shia law waqf is a
contract is accepted, and of this I have now no doubt left, the answers
to the questions referred to us become clear, and can only in my opinion
be the answers which at the commencement of this judgment I proposed
to give. The reasoning for each step has been so clearly and exhaustively
given by my learned brother that it is needless for me to say anything

The case was then remitted to the Division Bench for disposal.



14 A. 498 = 12 A W.N. (1893) 61. 18 g 2


Before Mr. Justice Tyrrell and Mr. Justice Knox. APPEL-


'(Defendants).* [2nd May, 1892.]

Joint Hindu family Partition to detriment of mir,or Suit by minor on attaining '
majority to recover Jus full share Limitation Act XV of 1677, scTt. ii, arts. 95 ** A.W.H.
and 96. (1892) 61.

Certain members of a joint Hindu family partitioned the family property among
them in such a way as to give one member of the family, who at the time of the
partition was a minor, less than the share to which he was entitled. The minor
was represented in the partition by his uncle, though the uncle was not the
natural guardian of the minor, nor in any other way entitled to deal with the
minor's property. The minor on attaining majority brought a suit for recovery
of the full share to which he was entitled. Held that this was not a'suit for
relief en *>be ground of fraud or mistake, inasmuch as the partition could not
under the circumstances affect in any way the rights of the minor. The suit
was therefore not subject to the limitation of three years prescribed by arts. 95
and 96 of the second schedule of Act No. XV of 1877.

THE facts of this case sufficiently appear from the judgment of the

The Hon'ble Mr. Sfankie and Pandit Sundar Lai, for the appellant.
Munshi Kashi Prasad, for the respondents.


TYRRELL and KNOX, JJ. This was an action brought by a member
of a Hindu family for a declaration of his title to one-quarter of the ances-
tral estate and to obtain possession of the same by partition. The
defendants are the cousins of the plaintiff and his uncle, who during the
plaintiff's minority divided the estate between them in the year 1877. The
plaintiff and the seventh defendant are descendants of Saran Singh, who
was entitled to one moiety of the whole estate ; the defendants one to six
being the sons of Saran Singh's brother, and, as such, entitled to the other
moiety. But in the transaction of 1877 an arrangement was made
between the plaintiff's uncle on the one hand, and the defendants one to six
[499] on the other, under which such estate was divided between them, the
former getting f, the latter i only. It may be taken, though the evidence
on the point is slender, that the plaintiff was 14 years old or thereabouts
when his father, Gajadhar Singh, died in 1877. He was therefore sui juris
in 1881 or 1882. In 1884 he brought a suit in forma pauperis to get the
relief he now seeks. The suit was one which obviously must fail, and he
withdrew it. He brought the present suit in May, 1887, being then aged
about 24 years. He pleaded that he was not bound by his uncle's act in
1877 ; that his uncle bad no authority as his natural guardian or otherwise
to dispose of his title to the estate ; that his uncle's acts, even if they pro-
fessed to have been done on the plaintiff's behalf in 1877, were not and
could not be a bar to the present suit, nor could they of themselves convey
to the defendants one to six a good title to a part of the plaintiff's rights and
interests in the ancestral estate under the Hindu law. The learned Counsel
for the plaintiff referred to the law on the subject as laid down in

* First Appeal, No. 215 of 1889 from a decree of Pandit Bansidhar, Subordinate
Judge of Ghazipur. dated the 12th August. 1869.


All. 500




MA* a.


14 A. 498 =
12 A.W.N.
(1892) 61.

Durga Prasad v. Kesho Per sad Singh (1) and Khetn Karan v. Har Dayal (2)
and contented with force that, except under some express authority
of law, Eup Narain Singh, defendant No. 7, was incompetent to make
any valid disposal of his nephew's estate during his minority. We have
read the learned Subordinate Judge's judgment, and it seems to us* that
his reasons for taking the contrary view are unsound. The learned
vakil who supported the decree below urged that the suit is ba- red by
the three years' limitation of arts. 95 and 96 of sab. ii of Act No. XV
of 1877 and he cited Natha Singh v, Jodha Singh (3) and Baj^i Krishna
v. Pirohand Budharam (4) in support of his contention. Tuose rulings
do not apply to the facts before us. We have no hesitation in agreeing
with the Court below on this issue. Upon this the learned vakil
intimated his assent to an order remanding the case for trial upon the
merits under a. 562 of the Code of Civil Procedure on the basis of the
preliminary finding of law that the plaintiff is not bound in law bv the
arrangement made by the seventh defendant and his uncle in 1877 [500]
with the other defendants, or by the subsequent proceedinga connected
with the alleged arbitration award.

Setting aside the decree below, we order accordingly, costs heretofore
being costs in the cause.

Cause remanded.

14 A. 600 = 12 A.W.N. (1892) 62.

Before Sir John Edge, Kt. t Chief Justice, and Mr. Justice Blair.

(Applicants)* [3rd May, 1892.]

Act XIX of 1873, as. 113 and 114 Partition, a-pvlitanon for Order o* objection ai to
title raised in course of partition proceedings " Ofder " or " decision " Appeal.

A Gollflctor ot Assistant Collector trying a question of title raised ia tho course
of the hearing of an application for partition under the N. W. P. Land Revenue
Act (Act No. XIX of 1873) is not bound to cause a formal decree to be drawn up
embodying the result of his order or decision on such point. An appeal will lie
from the " order " or " decision " of such Collector or Assistant Collector.

[P , 4 O.C. 299.]

IN this case the respondents Abclul Karim Khan and Ibrahim Khan
applied under s. 109 of Act No. XIX of 1873 to the Assistant Collector of
Moradabad for perfect partition of a certain specified area of land. To this
application Musammat Niaz Begam, the appellant, filed an objection to
the effect that a cetain mango grove comprised in the land to which the
above-mentioned application for partition referred was her exclusive pro-
perty, and prayed that it might be exempted from partition. To this
objection the respondents replied by a counter-application denying the
title of the appellant to the grove claimed by her. The Assistant Collector
tried the question of title and disallowed Musammab Miaz Begam's objec-
tion. Musammat Niaz Begam then appealed to the District Judge, who

* Second Appeal, No. 75 of 1990, from a decree of H. F. Evans, Esq., District
Judge of Jhansi, dated the 23rd November, 1889, confirming a decree of Maulvi
Muhammad Fazal Azim, Assistant Collector of Moradabad, dated the 9th August, 1889.

(1) 8 C. 656. (2) 4 A, 37- (3) 6 A. 406, (4) 13 B. 221.




14 All. 502

dismissed bar appeal on the merits. She then appealed to the High Court
and the appeal coming before Mahmood, J., was referred by him to a
Bench of two Judges.

Munshi Kashi Prasad, for the appellant.

Pandit Sundar Lai, for the respondent.


[501] EDGE, G. J., and BLAIR, J. This appeal arose out of a proceed-
ing for the partition of a mahal. The appellant here filed objections raising
a quesr.ioa of title. The Assistant Collector framed an issue on the
point ; took evidence and proceeded during the trial in accordance with
the Code of Civil Procedure. He likewise recorded in accordance with
s. 113 of Act XIX of 1873 a proceeding declaring " the nature, extent,
&o., of the interests of the parties, &c." He rejected the objection
finding that the objector, appellant, had failed to make out title, and
passe i an order disallowing the objection. The objector appealed to
the Court below, and her appeal was dismissed. She has brought this
second appeal It has been contended on the authority of the decision
in Ranjit Singh v. Ilahi Bakhsh (1) that there should have been a formal
decree drawn up by the Assistant Collector. In our opinion the third
clause of s. 113 must be read as it actually is, and it enacts merely,
so far as this point is concerned, that the procedure to be observed
by the Collector of the District or Assistant Collector in trying such
cases shall be that laid down in the Code of Civil Procedure for the trial
of original suits. The important words in that section are " trying " and
" trial." There is not apparently anything in the section to show that
a formal decree, as apart from the "proceeding" of s. 113 and the
" orders " and " decisions " of s. 114, should be prepared, and it is to be
observed that s. 114, which gives the statutory right of appeal, gives ifc
from the "orders" and "decisions" which are to be held to be the decisions
of a Court of Civil Judicature of the first instance. We have here the pro-
ceeding, the order and the decision of the Assistant Collector, which
seems to be all that is required by the Act. In any case, the appellant would
be in a difficulty. If a decree, as distinct from an order and decision, is
necessary, then the appeal below was not brought from such a decree, for
no such decree was drawn up, and the appeal, if it was from the decision,
as we must take it to have been, of the Assistant Collector, could not have
succeeded, as the " decision " could not in itself be wrong merely by
reason of the fact that the decree subsequently to be drawn up was not
drawn up. The appellant [502] has failed to make out her first point.
Her second point is that some witnesses on her behalf were not summoned.
The answer to that is -that she did not pay the talbana along with her
application, or at all. The appeal is dismissed with costs.

Appeal dismissed.


MAY 3.



l*i* 80 m
* 2 A.W.H.
(1892) 62.

(1) 6 A. 520.

A VII-87

14 All. 503



MAY 6.




11 A. 502=
12 A.W.N.

(1892) 95.

** A - 802 = 12 A.W.N. (1892) 99.


Before Sir John Edge, Kt. t Chief Justice, and Mr, Justice Blair.

[6ch May, 1892.]

p r ccedure Code. ss. 233. 231, 537 338, 339. Separate offences, effect of trial
in the same proceeding Evidence, admi^sibility of Pardon, withdrawal of
Trial of person whose pardon has been withdrawn.

In a Criminal trial evidence otherwise admissible is not rendered inadmissible
by tbe fact tbat it discloses tbe commission of an offence other than that in
respect of which the trial is being held. Beg. v. Briggs (1) referred to.

An accused person to whom a tender of pardon haa been made, and who has
given evidence under that pardon against persons who were co-accused with him,
should not, if such pardon is withdrawn, be put back into the dock and tried as if
he had never received a tender of pardon, but his trial should be separate from
and subsequent to that of tha persons oc-aooused with him.

Where four accused were at one and the sama trial tried for offenses of murder
and robbery committed in the course of one transaction and for another robbery
committed two or three hours previously and at a place close to the scene of the
robbery and murder : Held that the trial of these separate offences together,
though an error or irregularity within tbe meaning of s. 537 of the Code of Crimi-
nal Procedure, would not necessarily render the whole trial void,

[F., 23 B 493 (494) ; P. and Expl., 20 A. 529 (532) = 18 A.W.N. 153 ; R., 33 B. 221
(2291 = 10 Bom. L.R. 973 = 9 Cr. L.J 226 = 4 M.L T. 450; 22 C. 50 (69) ; 27 C.
839 (845); 32 M. 173 (176) = 9 Cr. L.J. 571 (574) = 2 Ind. Caa. 343 (344); A.W.N,
(1907) 208 = 6 Cr. L.J. 215 ; 14 Bur. L.R. 306 = 7 Cr. L.J. 245 <246i=U B R.
1907, 4th Qr., Cr. P.O. 7 (8); 2 L.B.R. 10 (12) ; 6 O.C. 236 (237) ', 7 P.R, 1901,
Cr. = 88 P.L.H. 1901.]

THE facts of this case sufficiently appear from the judgment of
the Court.

Mr. 0. C. Dillon, for the appellants.

The Public Prosecutor (the Hon'ble Mr. Spankie), for tbe Crown.


EDGE, C.J., and BLAIR, J. Mulua, Kamraj, Binda, and Suraj Pal
have been convicted under s. 302 of the Indian Penal Code and have been
respectively sentenced to death. They have also been convicted of two
charges under s. 392 of that Code and have [503] been formally sentenced
respectively to seven years' rigorous imprisonment on each charge.

Mr. Dillon has appeared for tbe appellants, and, in addition to
contending that they ought not to have been convicted on the evidence,
he has raised some objections as to the validity of the proceedings and
convictions in the Sessions Court.

The murder was committed, roughly speaking, at about a quarter
past 8 o'clock on the night of the 19th of November 1891, on a road leading
from Batesar fair. A party consisting of women and their attendants
were attacked by four men with the object of robbery. Wbilst the
robbery was being carried out, a chaukidar, attracted by the noise, ran
up shouting " Take care, I am coming." Upon that, according to the
evidence for the prosecution, the four men who were engaged in tbe robbery
ran at the chaukidar and each of them hit him with a lathi. The

Criminal Appeal No. 235 of 1892.
(1) 2 M, and R, 199.



chaukidar died from fractures of the skull, which caused effusion of 1892
blood upon the brain. There can be no doubt that his death was J^AY 6.
caused by lathi blows inflicted by the men, or some of them, who were
engaged in the robbery of Musammat Bijan's party. Of that robbery and APPEE-
that murder these four appellants have been convicted. Now there was LATB
a robbery committed between 5 and 6 o'clock that evening on the same npTur NAr

road at a place from 3 to 3| miles distant from the scene of the murder.

These four appellants were at the same trial charged with, tried for, con- 1$ A. 502
victed of, and sentenced for the robbery committed between 5 and 6 12 A.W.N.
o'clock. (1892) 93.

The first point taken by Mr. Dillon waa that it was illegal for the
Sessions Judge to try the case of the first robbery along with the case of
the subsequent robbery and murder. In our opinion there can be no
doubt that the robbery which took place first, was, within the meaning of
s. 233 of the Code of Criminal Procedure, 1882, a distinct offence from the
offence of murder which was committed in the perpetration of the second
robbery. The first robbery and the murder were not offencas of the
same kind within the meaning of s. 234 of the Code, and in our opinion, in
cases of so serious a nature as that of murder, offences not immediately
[504] connected with the murder ought not, for the purposes of charge
and trial, to be dealt with together. Now the question is whether the
procedure involved more than an irregularity within the meaning of
s. 537 of the Code. We are ot opinion that the trial of the first robbery
and the subsequent! murder together was an error or irregularity within the
meaning of s. 537 of the Code, and was not illegal in the sense which
would make the whole trial void. Still that error or irregularity would
make it necessary for us to set aside the proceedings in the trial below
and order a new trial unless we were satisfied that the error or irregularity
had not occasioned a failure of justice. Giving a wide meaning to
" failure of justice, " and adopting for the purposes of this case only the
contention that Mr. Dillon urges that a failure of justice would have
been occasioned if his clients were prejudiced by the charge for the
first robbery and the charge for the murder being tried at the same
trial, it is necessary to see in what respact these persons could have been
prejudiced. Mr. Dillon contends that they were prejudiced, arguing that
the evidence as to the first robbery which was given in support of that
charge was not admissible in support of the charge relating to the second
robbery and the murder. If that contention is sustainable, no doubt
these men have been prejudiced in their trial, but in our opinion that con-
tention is based upon a misconception of the law of evidence. Of the four
men who were tried and convicted, Mulua had confessed fully to the
robberies and the murder. That confession he made before the Magistrate.
He also pleaded guilty at the Sessions trial. The other three men in their
statements before the committing Magistrate had alleged alibis and had
named witnesses to be summoned on their behalf to prove those alibis at
the Sessions trial ; so that it was manifest that the main contention at the
Sessions trial would, so far as the three men other than Mulua were con-
cerned, be one of identity. It was consequently material and relevant to
show that these men were on that Batesar road on the night in question, and
not beyond the Chambal or elsewhere as their indicated alibis would suggest.
Now, it is quite clear that on the question of identity and also on the ques-
tion of whether or not on that night within two or three hours before the
murder, they were at [505] a place sufficiently near the scene of the mur-
der as not to preclude the possibility that they took part in the murder,



1892 evidence was admissible to show that between 5-30 and 6 o'clock that
MAY 6, evening these men were together on the Batesar road and at the place
where in fact the first robbery occurred. The only question can be as to
APPEL- whether evidence of what they were doing at that particular place was
LATE admissible or not. In our opinion it was clearly admissible. It went to
CRIMINAL. 8DOW * ne opportunities which the persons who spoke to the accused having
taken part in the first robbery had of identifying the persons who took part
14 A. 502= in that robbery with the men in the dock at the trial Evidence
12 A.W.N. of this kind would be clearly admissible in England. Many years
(1892) 95. ago Baron Alderson, who was one of the most careful Judges en the
English Bench in his time, admitted for the purposes of identification evi-
dence to prove that the person whom he was trying for robbery had on
the same night committed a different robbery on a different person in
the neighbourhood. That was in the case of Hegina v. Briggs (1).
It has been established in England by a long course of decisions, of
which the common sense and propriety cannot be doubted, that evidence
otherwise admissible cannot be excluded at a trial merely on the ground
that that evidence shows that the prisoner against whom it is given
has committed some other offence with which he was not charged
at the trial. To confine the evidence as to the presence of these
men at the scene of the first robbery to mere evidence that they
were there and to exclude the circumstances under which attention
was drawn to them would be to emasculate the evidence and to leave
the Judge or the Jury or the Assessors without an opportunity of forming
a judgment as to whether the witnesses who spoke to such identity had
good opportunities of observing the persons whom they were identifying.
We are, consequently, of opinion that, even if these appellants bad
not at this trial been tried for the first robbery, the evidence which was
produced to show that they had taken part in it would have been
extremely relevant and admissible on the question of identity which had
to be determined in the trial for murder. Holding this view of the law
and the facts we are of opinion that the [506] error or irregularity in
trying these appellants for the first robbery and for the second robbery
and murder in the same trial did not occasion a failure of justice and did
not prejudice the appellants to any greater extent than an accused may
be said to be prejudiced by evidence as to his identity being rendered
more conclusive, which could not be said to bo a failure of justice. That
disposes of the first point taken by Mr. Dillon.

The second point was that there were two Assessors and that the
record of the trial before us contains only a rocord of the opinions of one
of those two Assessors. The learned Sessions Judge sbates distinctly in
his judgment that the Assessors unanimously convicted on all three
counts. We are quite certain that he would not have made that state-
ment in his judgment unless he had obtained from them their opinions
and unless they had expressed their opinions that the prisoners before them
were guilty of all three charges. How it is that the record of the trial
contains the record of the opinion of one Assessor only we are unable to
say, and as the learned Sessions Judge is on leave there is no immediate
opportunity of clearing up the subject. If he did not record the opinion
of the second Assessor, he committed an error, an omission and an
irregularity within the meaning of s. 537 of the Code of Criminal Procedure
but it has not occasioned, in our opinion, a failure of justice.

. (1);2 M. and B. 199.



The third poinfc is that Mulua was tendered a pardon under s. 338 of 1892
the Code of Criminal Procedure. He had at the Sessions trial already MAY .
pleaded guilty to all the charges, and two witnesses had been examined when
the Sessions Judge made a tender of the pardon under s. 338. The pardon APPEL-
tendered was a pardon in respect of all the three charges, namely, the LATE
two charges of robbery and the charge of murder. Mulua was put into CRIMINAL,
the witness-box and examined as a witness on the faith of the pardon
tendered to him, and he gave his evidence. At the conclusion of that HA, 502 =
evidence the Sessions Judge formed the opinion that Mulua's evidence 12 l.W.N.
as to the second robbery and the Murder was untrue. He came to that (1892) 95.
conclusion without having heard any witoesses in the case, except the
507] first two witnesses called. Those witnesses proved nothing to show
that Mulua's evidence at the trial was false evidence. The Sessions Judge
had before him, no doubt, the confession made by Mulua before the Magis-
trate, and he had probably also looked at the depositions taken by the
committing Magistrate, and he had further on the Magistrate's record the

Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print 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 7) → online text (page 102 of 155)