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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 126 of 155)
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tion in Calcutta.

On -the above facts the question of law ia, had the prisoner committed
the offence of which he has been convicted ? In support of the appeal
Mr. Banerji relied upon the decisions in Queen- Empress v. Haradhan (1),
Jan Mahomed and Jabar Mahomed v. Queen- Empress (2), Empress v.
Dwarka Prasad (3) and Queen-Empress v. Girdhari Lai (4).

For the Crown Mr. Strachey relied upon the decisions in Queen-
Empress v. Appasami (5), Queen-Empress v. Ganesh Kanderao and Ganesh
Daulat (6) and 'an unreported decision of this Court in the Queen-
Empress v. Bhushan Chandra, decided on the 29bh of July 1890.

In order to ascertain whether the necessary ingredients of an offence
under s. 471 of the Indian Penal Code existed in this case on the facts
found by us, and also by the Oourt below, we must read ss. 470, 464, 463,
29, 25, 24, and 23 of that Code. The document in question, namely that
bearing date the 17th of March 1887, could only have been made with the
object of being used. Ib would be useless, except as a certificate that the
prisoner had from June 1886 to February 1887 attended the law class of
Canning College, and had been present of sixty-three out of seventy-two
. lectures in that law class ; and. the only object for which it could have been
made was that purporting to be a geunine certificate under the hand of the
Principal of Canning College, it would enable the prisoner to avoid the neces-
sity of attending a first year law class and of paying the fees payable for
an attend [216]ance at a first year law class. It was made with the obvious
intention of being presented to the Principal of some College or educational
institution in which students are not allowed to attend a second year law
class unless they have previously attended a first year law class. In our
opinion it was not only " dishonestly " made, as that word is defined in
s. 24 but it was also "fraudulently" made as that word is defined in
s. 25 of the Indian Penal Code. It was made with the intention of causing
wrongful gain to the prisoner and wrongful loss to the Professor of Law,
or to the College authority where it was to be used, by enabling the
prisoner to keep in his own pocket fees which otherwise he would have had
to pay. Such fees would, in our opinion, ba " property " within the
meaning of s. 23. That document was further fraudulently made as hav-
ing been made with the intention that the prisoner should by the use of
it deceive a College authority, and obtain admission to a second year law
class. Illustration (k) to s. 464 of the Indian Penal Code shows that if

(1) 19 C. 380. (2) 10 C. 584. (3) 6 A. 97.

(4) 8 A. 653. (4) 12 M. 151. (6) 13 B. 506.

856



YII] QUEEN-EMPRESS V. SOSHI BHUSHAN 15 All. 218

A without B's authority writes a letter and signs it in B's name, certify- 1893
ing to A's character, intending thereby to obtain employment under Z, A APBIL 29.
commits forgery, inasmuch as he intended to deceive Z by the forged
certificate and thereby to induce Z to enter into an implied or express APPEL-
contract of service. We can see no difference in principle between the LATE
case of a man making a false certificate in order to obtain employment CRIMINAL.
and the case of a man making a false certificate in order to obtain admis-
sion to a law class. In each case the intention is to deceive another 13 A. 210 =
person, and thereby to obtain an advantage, or a privilege, which without 13 A.W.N.
such deception cculd not have been obtained. We ase consequently of (1893)96,
opinion that the document in question was a false document within the
meaning of s. 461 of the Indian Penal Cocie.

The next question is, did the parson who made that false document
commit forgery within the meaning of s. 463 of the Indian Penal Code?
That section is as follows : " Whoever makes any false document or part
of a document with .intent to cause damage or injury to the public, or to
any person, or to support any claim [217] or title, or to cause any person
to part with property or to enter into any express or implied contract, or
with intent to commit fraud or that fraud may be committed, commits
forgery.

We cannot agree with Norris, J., in Queen- Empress v. Haiadhan (1),
that the claim in that section is limited to a claim to property. There
does not appear to us to be anything in the section to so limit the applica-
tion of that word. If the Legislature had intended to limit that word to
a claim to property, we should have expected that the section would have
run thus : " Or to support any claim or title to, or to cause any person
to part with, property."

In our opinion the claim may be a claim to anything, as, for instance,
a claim to a woman as the claimant's wife, a claim to the custody of a
child as being the claimant's child, or a claim to be admitted to attendance
at a law class in a college, or to be admitted to a university or other
examination, or a claim to the possession of immoveable or any other kind
of property. Why should the making of a false document to support a
claim to an old coat, not worth R?. 5, bo a forgery, and the making of a
false document to support a claim to the custody of a child not be a
forgery ? The document dated the 17th of March 1887 was made with
some object. The person who made it must have intended that it should
be used for some purpose which could not have been honest. He must
have made it with the intention that it should be used to deceive some
one into the belief that the prisoner had attended a year's course of law
lectures at Canning College. It is only reasonable to believe that the
document was made with the intention of supporting a claim by the
prisoner to be admitted as a student to a second year law class.

It is possible that it was made with the intention of being used to
obtain ultimately for the prisoner a consolidated certificate. In any case
it must have been made with the intention that by using it the prisoner
might obtain admission to a second year law class. That document was
in our opinion made with the intent to [218] support a claim within tho
meaning of s. 463 of the Indian Penal Code.

There cannot in our opinion be any doubt that a written certificate
is " property " within the meaning of s. 463. If the prisoner had obtain-
ed the certificate which he tried to obtain, and some one had stolen it



A VII 108



(1) 19 G. 380.
857



18 All. 219



INDIAN DECISIONS, NEW SERIES



[Vol.



1893 from him, no one, we imagine, would suggest that the thief could not
APRIL 29. legally be convicted, under s. JjjZE-gf ttre- Indian Penal Code, of the thefb

of the certificate, but if th^e^rtTIjcate was~noFrQyeable " property," the

APPEL- person who dishonestjy'fook the certificate out of the possession of the
LATE prisoner, without ifere prisoner's consent, could not be convicted of a theft
CRIMINAL. * n r 68 ? 60 ' f i fc> fa i g nofi ' ID our opinion necessary to constitute a forgery
under s. 463 fcl/at the " property " with which it is intended that the
15 A. 210= false document [shall cause a person to part, should be in [existence at the
18A.W.N. time when thel false document was made. For example, if A gave an
(1893) 96. order to B to buV the material for making and to make a/silver tea service
for him, and G, before the tea service was made or the .materials for mak-
ing it had been bougtiL were to make a false letter narporting, but falsely,
to be signed by A, autb^rtgiafl B to deli yert^-JJ the tea service when
made, C would have oommlEEeiHorgery wltnm the meaning of 8. 463 by
making that false document with intent to cause B to part with property,
namely, the tea service, when made, We are further of opinion that the
document in question was made with intent that fraud might be com-
mitted.

We entirely agree with the view of the law expressed by Sir Arthur
Collins, C. J , and Parker, 3., in Queen-Empress v. Appasami (1). We
also entirely agree with the view of the law expressed by Jardine and
Candy, JJ., in Queen- Empress v. Ganesh Khanderao and Ganesh Daulat (2),
at pp. 512, 513 and 514 of the report.

Finally we are satisfied that the prisoner committed an offence under
s. 471 of the Indian Penal Code, when in November or December 1891
he used the document which bears date the 17th [219] of March 1887,
by handing that document to the Professor of Law of Queen's, College, as
a genuine certificate signed by the Principal of Canning College, and that
he again committed an offence under s. 471 of the Code when, in Novem-
ber 1892, he handed that document to the head clerk of Queen's College
for the purpose of obtaining the grant to him of a consolidated certificate.
We dismiss this appeal.



(1) 13 M. 151.



(2) 13 B. 506.



858



YII]



KHIALI RAM V. NATHU LAL



15 All. 220



15 A, 219 (F.B,) = 13 A.W.N. (1893) 125.
FULL BENCH.

Before Sir John Edge, Kt., Chief Justice, Mr. Justice Tyrrell,

Mr. Justice Kn*x, Mr. Justice Blair, Mr. Justice Burkitt and

Mr. Justice Aikman.



KHIALI RAM (Plaintiff- Appellant) v. NATHU LAL AND OTHERS
(Defendants- Bespondents.)* [28bh June, 1893.]

Act XII of 1881, ss. 1, 8, 9 Landlord and tenant Ex-proprietary tenant, power of
to sub let Right of occupancy,

An ex-proprietary tenant can sub-let the whole or any part of bis occupancy hold-
lag, and such a sub-letting is not forbidden by s. 9 of Act No. XII of 1881.



[P., 18 A. 354 (356) ; 8 A.L.J, 69j
(342) (F.B.) ; 24 A. 538 ; 26
29 A. 129 (13ii) = 3 A.L J. 731
117; 27 M. 401; 3 A.L.J. 40
(1908). 33 ; 13 A.WN. 177; 13
5 ; 9 Ind. Cas. 217 (218) ; 2 O.G. 1




82 (83) ; R., 16 A. 337
59ts(593) = 24 A.W.N. 132 ;
A\ 335 (336) = 8 A.L.J.
J. 30 (32) = A.W.N-
1 (106); 110P.L.R.
; 20.0.29-2(294).]



THIS was a reference to the Full Bench made at the instance of Knox
and Burkitt, JJ. The facts of the case as stated in the referring order are
as follows : " Khiali Bam, the appellant in this second appeal, was plaint-
iff in the Court of first instance. He is the zemindar of the mahal, and
Nathu Lai, one of the respondents, is an ex-proprietary tenant in the same
mahal. Khiali Earn alleges that Nathu Lai had given a lease for a term of
five years, bearing date the 21st of June 1887, over certain land set out
in the plaint to the respondents Khiali Ram, Dudraj and Baldeo. He
sought to have the lease set aside, to have the lessees ejected, and posses-
sion given to him the zamindar. The ground on which he claims these
reliefs was that the lease was one in contravention of the terms of s. 9 of
Act No. XII of 1881. The Court of first instance held that the prohibi-
tion against the transfer of his holding by an ex-proprietiary tenant refers
to a complete transfer only, and not to a lease for [220] a short period
like five years, and dismissed the plaintiff's claim so far as the ex- proprie-
tary tenure was concerned. The lower appellate Court confirmed the
decree so far, and the appellant now again contends before us thab the
lease is invalid inasmuch as it is opposed to the provisions of the rent law
above cited."

The point arising on these facts was thus referred to the Full Bench :
" Can an ex-proprietary tenant to whom s. 9 of Act No. XII of 1881
applies, sub-let his holding or any part of it ; in other words, is such a
sub-letting forbidden by s. 9 of Act No. XII of 1881 ?

Mr. J. Simeon for the appellant.

Pandit Sundar Lai, for the respondents.

The judgment of the Court was delivered by EDGR, C. J.

JUDGMENT.

The question which has baen referred to the Full Bench is, " Can
an ex-proprietary tenant, to whom s. 9 of Act No. XII of 1881 applies
sub-let his holding or any part of it ; in other word?, is such a sub-letting

* Second Appeal, No. 948 of 1889, from a decree of Rai Banwari Lai, Subordinate
Judge of Sbahjahanpur, dated the 24th of April 1889, confirming a decree of Pandit
Pitambar Joshi, Muusif of Tilhar, dated the 17th of July 1888.



1893

JUNE 28.

FULL
BENCH.

15 A. 219

(F.B.)-
13 A.W.N.
(1893) 125.



15 All. 221



INDIAN DECISIONS, NEW SERIES



[Yol.



1893

JUNE 28.

FULL
BENCH.

15 A. 219

<F.B.) =
13 A W.N,
(1893) 125.



forbidden by s. 9 of Act No. XII of 1881 ?" The reference was rendered
necessary by the conflicting decisions of this Court, some bearing directly
on this question, others applying by analogy.

The sub-letting in this case was by a lease for a term of five years,
by which the lessees "agreed to pay an annual rent of Es. 100, of which
they agreed to pay Us. 40 to the zemindar and Rs. 60 to Nathu Lai,
the ex- proprietary tenant and grantor of the lease. The zemindar, who
was no party to the granting of the lease, is the plaintiff, and has
brought the suit, out of which this reference has arisen, for possession
of the occupancy holding, alleging that the granting of the lease was,
by reason of s. 9 of Act No. XII of 1881, illegal, and had determined
the right of occupancy of his ex-proprietary tenant. Nathu, the ex-
proprietary tenant, and his lessees are the defendants to the suit.

The three sections of Act No. XII e*f1881, which appear to us to be
material to the consideration of the question referred, are ss. 7, 8 and 9.
By the first two paragraphs of s. 7 it is enacted that [221] "Every person who
may hereafter lose or part with his proprietary rights in any mahal, shall
have a right of occupancy in the land held by him as sir in such mahal
at the date of such loss or parting, at a rent wh'ch shall be four annas in
the rupee less than the prevailing rate payable by tenants-at-will for land
of similar quality and with similar advantages.

" Persons having such rights of occupancy shall be called ex-pro-
prietary tenants, and shall have all the rights of occupancy tenants."

S. 8 is as follows :

" Every tenant who has actually occupied or cultivated land con-
tinuously for 12 years has a right of occupancy in the land so occupied or
cultivated by him.

" Such tenants shall be called occupancy tenants. The occupation or
cultivating of the father or other person from whom the tenant inherits
shall be deemed to be the occupation or cultivating of the tenant within
the meaning of this section :

" Provided that no tenant shall acquire, under this section, a right of
occupancy

(a) In land which he holds from an occupancy tenant, or from an

ex-proprietary tenant, or from a tenant as fixed rates ;

" (b) In sir land ;

" (c) In laud held by him in lieu of wages :

" Provided also that, when a tenant actually occupies or cultivates
land under a written lease, without having a right of occupancy in such
land, the period of twelve years necessary for acquiring a right of occu-
pancy therein by him or any one claiming under him shall begin on the
expiration of the term of such lease. It during the currency of such lease
he ceases to occupy the land comprised therein and sub-lets it to another,
no right of occupancy in such land sha'l be acquired by the sub-lessee
during the currency of the lease."

[222] S. 9 is as follows :

" The right of tenants at fixed rates may devolve by succession or be
transferred.

" No other right of occupancy shall be transferable in execution of a
decree or otherwise than by voluntary transfer between persona in favour
of whom as co-sharers such right^originally arose, or who have become by
succession co-sharers therein.

" When any person entitled to such last-mentioned right dies, the
right shall devolve as if it were land : Provided that no collateral relative

860



YII]



KHIALI BAM V. NATHU LAL



15 All. 223



of the deceased who did not then share in the cultivation of his holding
shall be entitled to inherit under this clause."

An " occupancy tenant " under the Act is a person having a " right
of occupancy." As we shall show presently, a " right of occupancy," as
that term is used in the Act, does not imply tbat the "person in whom that
right is vested must himself or by his servants actually occupy or cultivate
the holding in which he has the " right of occupancy."

It will be seen from s. 8 of Act No. XII of 1881, first, that proviso (a)
refers to cases in which a person having no right of occupancy in a
holding in respect of which there is a right of occupancy may hold such
land as a tenant of the occupancy tenant, that is, of the person who has
in such land the right of occupancy, and, secondly, from the hisfe proviso,
that it was contemplated that a sub-lessee not holding under an existing
lease, may, under the earlier part of the section, acquire a right of occu-
pancy in the land held by him after the expiration of the lease to his
immediate landlord who is not an occupancy tenant.

We have thus in s. 8 two classes of sub-tenants recognised, namely,
a tenant of an occupancy tenant and a tenant of a lessee who -holds
under a written lease. The word "tenant" was thus defined by Little-
dale, J., inB. v. Ditcheat (1), "a tenant is a person who holds of another,
he does not necessarily occupy."

[223] The tenant of an occupancy tenant until his tenancy is. deter-
mined either by the determination of the right of occupancy of the
occupancy tenant under whom he is holding, as, for instance, by an eject-
ment under the Act, or by his own ejectment under the Act, has a right
to occupy the land, 'although whilst the right of occupancy of the
occupancy tenant from whom he is holding is subsisting he never can
obtain a right of occupancy in the land. Similarly the sub-tenant of a
tenant holding under a written leasa has a right to occupy the land
held by him as such sub-tenant, although he cannot during the currency
of such written lease obtain any right of occupancy in the land.

These considerations show that a right of occupancy must not be
confounded with a right to occupy. Those two rights may co-exist in the
same person, as when an occupancy tenant himself or by his servants,
cultivates his occupancy holding. Or, those two rights may be vested in
two different persons, the right of occupancy being vested in the occupan-
cy tenant and the right to occupy being vested in hia tenant during the
currency of the latter's tenancy. In the latter case the position is similar
in some respects to the position of a proprietor who lets his land to a
tenant, the proprietary right remaining vested in the landlord and the
right to occupy the land vesting in the tenant. A right of occupancy may
be acquired under s. 8 by a person who has not acquired it under s. 5 as
a tenant at a fixed rate or under s. 7 as an ex-proprietary tenant : b.ufc,
although under s. 9 the right of tenants at fixed rates may devolve or be
transferred, a different limitation is placed by that section on the devolu-
tion or transfer of any other right of occupancy. S. 9 does not prohibit
the transfer of any right to occupy. What the second paragraph of 8. 9
of Act No. XII of 1881 does enact is "No other right of occupancy shall be
transferable, &c,," which is a very different thing from enacting that "no
other right to occupy shall be transferable." The second paragraph of
s. 9 makes all rights of occupancy other than those of tenants at fixed

(1) 9 6. and C. 183,
861



1893

JUNE 28.

FULL
BENCH,

18 A. 219

(F.B.) =
13 A.W.N.
(1893) 123.



15 All. 224 INDIAN DECISIONS, NEW SERIES [Vol.

1893 rates absolutely incapable of being transferred except by voluntary trans-
UNB 28. fer between persons in favour of whom as co sharers such right [224]

originally arose, or who have become by succession co-sharers therein."
FULL The omission to recognise the distinction between " a right of occu-

BENCH. panoy" as those words are used in Acb No. XIT of 1881, and a right to
occupy, and the assumption by some members of the Court in one case
16 A. 219 that a right of occupancy means " Nothing but the right to live on and
(F.B.) cultivate the land as one's own," led to the conflict of authority which
13 A.W.N. exists in the rulings of this Court on the effect of the second paragraph of
(1893) 123. 8 . 9 of Act No. XII of 1881.

We now propose to show that since 1851, except in some decisions
of this Court, to which we shall refer later on, a tenant with a right of
occupancy has always been considered to have enjoyed the power of sub-
letting and that such power has not been interfered with by the Legisla-
ture.

In 1851 the question arose as to whether a maurusi ryot had a right
to sub-let bis holding. The opinion of the Local Government on that sub-
ject .is to be found in the letter from the Secretary to Government, North-
Western Provinces, to the Secretary to the Sudder Board of Revenue, dated
Simla, the 6th October 1851, No. 3580 of 1851, published in Selections
from Government Records: Thomson's Despatches t Vo\. 2, pages 216 and 217.

The third paragraph of that letter is as follows :

" On mature deliberation, the Lieutenant- Governor does not perceive
bow the right of a mouroosee ryot to sub-let bis land can be denied. He
has a right of occupancy so long as he pays according to the pargana rate
for the land in bis occupation. If from any cause be does not cultivate
the land himself, he is at liberty, sooner than throw up any portion of his
land, to provide for itscultivation by others. He continues responsible to
the malguzar for the rent of his land, and so long as he pays it, the
malguzar cannot interfere with him. If ho sub-lets to a great advantage,
presumption exists that the rent he pays is below the pargana usage, and
the malguzar may sue for re-adjustment and increase of rent ; but he
cannot summarily set aside the mouroosee ryot and collect direct from the
[225] under-tenant. That would virtually be to oust the mouroosee
ryot, contrary to the conditions of his tenure, which are continued cul-
tivation and punctual payment of the equitable rent."

S. 6 of Act No. X of 1859 was as follows :

" Every ryot, who has cultivated or held land for a period of twelve
years, has a right of a occupancy in the land so cultivated or held by him,
whether it be held under pottah or not, so long as he pays the rent pay-
able on account of the same ; but this rule does not apply to khomar,
neejjote, or seer land beloning to the proprietor of the estate or tenure
and let by him on lease for a term or year by year, nor (as respects the
actual cultivator) to lands sub-let for a term or year by year by a ryot
having a right of occupancy. The holding of the father, or other person
from whom a ryot inherits, shall be deemed to be the holding of the ryot
within the meaning of this section."

The question whether a ryot having a right of occupancy under s. 6
of Act No. X of 1859 could legally sub-let his holding came before the
High Court at Calcutta on at least two occasions.

In Haran Chundra Paul v. Mookta Soonduree (1) Sir Barnes Peacock,
C. J., and Dwarkanath Hitter, J., in 18GB held that the plaintiff, who was

(1) 10 W.R.C.B. 113.
862



KHIALI BAM V. NATHU LAL 18 All. 227

a tenant with a right of occupancy, "did not transfer any right of occupancy, 1893
if he merely sub-let the land to ryots to hold under him. It is expressly JUNE 38,
provided by s. 6 of Act X of 1859 that the rule therein laid down does not,
as respects the actual cultivator, apply to land sub-let for a term of years FULL
by a ryot having a right of occupancy. It therefore recognises the right BENCH,
of a ryot having a right of occupancy to sub-let the lands which he holds,
although the ryot holding under him does not gain a right of occupancy as * * 2 * 9
against him." (F.B.)-

In Jumser Gazee v. Goneye Mundul (1) the right of a tenant who had I* A.W.H,
a right of occupancy to sub-let by lease was recognised. That case was (1893) 125,
decided under Act No. X of 1859.

[226] In Sadut Ali v. Pundit Hait Ram (2) it was stated in the judg-
ment of the Court that in respect of occupancy tenures sub-letting had been
recognised to be the practice by high authority.

Section 7 of Act NQ, XVIII of 1873 is the same as the first two
paragraphs of s. 7 of Act No. XII of 1881. Sacbion 8 of Act No. XVIII
of 1873 is the same as s. 8 of Act No. XII of 1881. Section 9 of Act
No. XVIII of 1873 is as follows :

" The right of tenants at fixed rates shall be heritable and transfer-
able.

" No other right of occupancy shall be transferable by grant, will,
or otherwise, except as between persons who have become by inheritance
co-sharers in such right.

" When any person entitled to such last mentioned right dies, the
right shall devolve as if it were land : Provided that no collateral relative
of the deceased who did not tbon share in the cultivation of his holding
shall be entitled to inherit under this section."



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 126 of 155)