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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 134 of 155)
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nation in the exercise of bis rights of property. If a Muhammadan, a
Hindu or a Christian or a member of any other denomination commita
an offence against the Penal Code, the law can be put in force against bim
by the process of the Criminal Court and by that process only. If he
does not commit an offence in exercising bis rights of property the law
does not allow any one to interfere with him in the exercise of those rights,
and people who take upon themselves either to take the law into their own
hands, or to override or exceed the law, must expect the punishment which
the law awards for criminal acts.

We have not the slightest doubt that the persons who took from Pir
Bakhsb, and his companions by force on the 9th of January those

909



15 All. 303 INDIAN DECISIONS, NEW SERIES [Yol.

1893 forty-two head of cattle committed the offence of dacoifcy under s. 395

JULY 14. of the Indian Penal Code. We have the authority of Mr. Justice Tyrrell

for saying that his judgment in the Queen-Empress v. Raghunath Bai (I)

EEVI- was a judgment based solely on the facts found in that case. We

SIGNAL have also his authority for saying [303] that he never ruled that

CRIMINAL ^ ' 8 n k ^ e ^ ^ deprive a man of his property under the influence of

' religious prejudices and that in his opinion such a deprivation is theft, and

IB A. 299= might according to circumstances be dacoity. Mr. Justice Tyrrell informs

13 A.W.N. us that in that case he was dealing with the facts found by the Court

(1893) 142. below and his judgment must be so read-

As to what happned on the 10th of January we have not the slightest
doubt that these men were properly convicted of offences under ss. 147,
325 and 353 of the Indian Penal Code, and further we are satisfied that on
the facts found these men did commit the offence of dacoity under s. 395 of
the Indian Penal Code on the 10th of January, and that they could each
and all of them have been legally sentenced for that offence to transporta-
tion for life. On the 10th of January they took out of the custody of the
police, who were holding them for the benefit of the lawful owners, the
cattle which had been the subject of a dacoity committed on the 9th of
January. The offences which these men committed on the 10th of
January were offences of a most serious description. They were offences,
the repetition of which must be prevented by the strong arm of the law.
On the 10th of January these men were in fact waging a kind of civil war;
they were taking by force from lawful custody cattle which did not
belong feo them, and they were resisting the civil power in the execution of
the duty of that civil power.

The jurisdiction of the Magistrate who decided this case was, by
reason of ss. 32 and 34 of Act No. X of 1882, a limited jurisdiction so far
as the awarding of punishment was concerned, and we sitting here in
revision are limited in our jurisdiction by the jurisdiction which the
Magistrate could himself have exercised. We wish it to be understood
that the sentences which we shall pass in revision here do not in our opinion
adequately represent our sense of the gravity of the offences of which
these men have been convicted. People must be made to know that the
Criminal Courts or the Civil Courts can be applied to for protection or
vindication of their rights and that they must not take the law into their
own hands.

[304] In this case we enhance the sentence for the offence under
s. 353 of the Indian Penal Code to one of two years' rigorous imprison-
ment ; we enhance the sentence for the offence under s. 147 of the
Indian Penal Code to one of one year and nine months' rigorous
imprisonment, and we do not interfere with the sentence of three months'
rigorous imprisonment passed under s. 325 of the Indian Penal Code.
We direct that these sentences shall apply to each of these eight men,
and shall not run concurrently, but shall be consecutive.



(1) 12 A.W.N. (1892) 120,
910



YII] BHAGWATI PRASAD V. R. K. SEWAK PANDE 15 All. 305

13 A. 304 (P,C.)=20 I. A. 108 = 6 Sar. P C.J. 7 = 17 Ind. Jur.'320. 1893

PBIVY COUNCIL. FEB - n -

PRESENT : PRIVY

On the hearing of the appeal : Lords Hobhouse and Macnaghten, '

Sir B. Peacock, Sir R. Couch and Mr. Shand (Lord Shand). 15 A. 304

On the delivery of the judgment : Lords Watson, Hobhouse, Macnaghten (P.C.) =

and Morris and Sir B. Couch. 20 I. A. 108 =

fi SAP P P T

[On Appeal from the High Court at Allahabad.] 7 = 17 Ind

Jur. 320.

BHAGHWATI PRASAD (Plaintiff) v. EADHA KISHEN SEWAK PANDE

AND ANOTHER (Defendants). [20fch November, 1890, and

llth February, 1893.]

Equitable charge on property purchased A charge created in favour of the Under of the
purchase-money.

By the acts of the parties, and tlieir relations to one another, money borrowed
by an agent for a principal for the purchase of property was rendered a charge
upon the latter in the principal's hands, ho being the real purchaser.

The lender of money, which he advanced to the nominal purchaser of property,
who was the acent of the real purchaser, made the advance with the knowledge
that it was for the principal's purposes, the latter only using the agent's name
in the purchase. The nominal purchaser then executed a deed purporting to
hypothecate the property as security for the load. The lender, not having been
paid, obtained a money-decree against the nominal purchaser, and, bringing the
property to a Court sale, bought it himself. He could not, however, obtain
entry of bis name in the collectorate books, on the opposition of the real pur-
chaser, and a suit brought by him for a declaration of his title, and his right to
possession, against the nominal purchaser, was dismissed.

Afterwords, in the present suit, which the lender brought against both the real
and the nominal purchasers, it was held that although, in regard to the previous
[305] judgment, it might be difficult to decide that the deed itself constituted a
valid hypothecation, the facts of the case were sufficient; to show that the lender
of the money was entitled to a declaration that the advance of money for the
purchase formed an equitable charge upon the property against the real purchaser.

[P., and Appr., 13 M.L.J. 529 ; R., 26 M. 686 (725) (F.B.) ; D., 33 C. 985 = 4 C.L.J.
219.]

[N.B. See in this connection 9 A. 681 = 7 A. W.N. (1887) 229, wherecn this appeal
has arisen.]

APPEAL from a decree (3rd June 1887) (1) of the High Courb reversing
a decree (9th September 1885) of the Subordinate Judge of Gorakhpur.

In this appeal an order of revivor was made, the appellant Sarju
Prasad having died, after the hearing, but before the delivery of the
Committee's judgment. The appellant's minor son, Bhagwati Prasad,
under the guardianship of bis mother, Musammat Parbati Bibi, was
substituted by the order, for the deceased, Sarju Prasad. The appeal arose
out of a suit brought by the latter on the 9fch of January 1885 against Bir
Bbaddar Sewak Pande, the respondent's predecessor in estate, with whom
Nandan Tewari was joined as co-defendant. The plaint stated that under
a bond, dated 3rd of December 1871, after a deduction of what had been
already realized, a sum of Rs. 12,336-3-6, consisting of Rs. 7,518-3-0,
principal and Rs. 4,818-0-6. interest was due to the plaintiff ; who was,
by an hypothecation, entitled to a charge to that amount on shares in

{1} 9 A. 681.
911



18 All. 306 INDIAN DECISIONS, NEW SERIES [Yol.

1893 villages purchased by Bir Bhaddar in 1871, the principal having been part
FEB. 11. of the purchase money borrowed from the plaintiff for the occasion.

The right to maintain a charge on the' property was the question on
PRIVY this appeal.

COUNCIL. I Q execution of a money decree, Mewa Ram v. Bir Bhaddar, of the

7th of December, 1864, shares in villages, Kudai Earn and five others, in

13 4. 304 . Gorakhpur were brought to a judicial sale. Before Rg. 5,000, which Bir

(P-C=) Bhaddar borrowed of Sarju, was paid into Court, the shares were sold on

20 I.A. 108= t h 6 20fch of November, 1871. The share in Kudai Ram was bought by the

6 Sar. P.C.J. decree-holder, and the shares in the other villages were bought nominally

7 = 17 Ind. b v Nandan Tewari, who, to pay the purchase-money, borrowed Rs. 9,000

Jur. 320. from Sarju, executing to him a bond and mortgage of the village shares so

bought, dated the 3rd of December, 1871.

[306] The money not having been repaid, Savju obtained against
Nandan an ex parte decree, dated the 20fch of August, 1874, on the docu-
ment of 1871, for Rg. 9,000 DrinciDal, and Rg. 3,314 interest. Meanwhile,
in September, 1873, one Bulram Sewak Pande," bringing a suib for part of
the village shares which Nandan had nominally purchased, paidRs. 6,136
into Court, to the credit of Nandan. This sum Sarju caused to be attached,
and this was all that he obtained as the result of the above transactions.
For, although be got confirmation of the sale to him of the village shares,
which he himself bought at the Court sale that took place in execution of
his decree of the 20bh of August, 1874, he did not get possession of the pro-
perty which he had bought. The Commissioner of revenue, on the ground
that the decree against Nandan was only against a nominal, and not a
real owner of the villages, cancelled the Collector's order for the entry of
Sarju's name in the colleotorate books.

Sarju thereupon sued Nandan for possession of the village, with
cancellation of the order of the Revenue Court. His suit, however, was
dismissed, and the dismissal was confirmed by the High Court on the
10th of May, 1882, the courts regarding the puchase by Nandan as
fictitious.

The present suit followed on the 9th of January, 1885, against both
Bir Bhaddar and Nandan. Bir Bhaddar alleged in defence that as the
plaintiff had obtained a decree against Nandan o:a the document of the
3rd of December, 1871, and bad issued execution on that decree, there
could be no renewal of proceedings in reference to the loan. Also he alleg-
ed that the claim against him was not supported by proof of Nandan's
having had authority to mortgage. Nandan claimed to have the suit held
barred against him under s. 13, Civil Procedure.

The Subordinate Judge, Shah Ahmad-ulla, having fixed issues with
reference to the points in the written statements, held that the suit was
maintainable against Bir Bhaddar alone, against whom he decreed the
claim.

This decision was reversed on an appeal by Bir Bhaddar by a
Division Bench of the High Court, (STRAIGHT and TYRRELL, JJ.).
[307] The reason given in the judgment of the Senior Judge for dismiss-
ing the suit against Bir Bhaddar was that, although he would have been
liable had there been no prior suit upon the document of the 3rd of Dec-
ember, 1871, the plaintiff's having taken proceedings thereupon against
Nandan alone, as the person responsible, had made a difference. Accord-
ing to what was in the Court's opinion the law as to the relative liability
of principal and agent to third parties, the right to sue upon the hypothe-
cation had been merged in the decree of 1874. Having first sued and got

912



YII] BHAGWANTI PRASAD V. R. K. SB WAR PANDB 15 All. 308

a decree against the agent, the plaintiff could not bring a suit against the 1393
principal on the same cause of action. The Judge also adverted to the FEB. 11.
treatment of the bond of 1871, as partly satisfied in execution to the
extent of Es. 6,136, to which amount credit had been given. PRIVY

The judgment is reported in I. L. E., 9 All. 681. COUNCIL.

Mr. W. A. Raikes arrd Mr. J. R. Dunlop Hill, for the appellant,
argued that Bir Bbaddar, the principal defendant, though not actually a * 8 *. 304
party to the document of hypothecation of 1871, was cognizant at the (P.C.) =
time of its having been executed, while there was no doubt that the money 20 I. A. 108=
had been taken for his benfit. The result of the litigation had been that 6 Sap. P.C.J,
Sarju Prasad had not been repaid ; while Bir Bhaddar had obtained both 7 = 17 Ind.
the money and the shares in the village?. On this state of things, not- J u * 320,
withstanding the decision of the 10th of May, 1882, as to the hypotheca-
tion having been ineffective, Bir Bhaddar could not resist the plaintiff's
case that the property had been charged with the debt to him.

They referred to Shib Lalv. Ganga Prasad (1), Kelly Doss Hitter v.
Gobind Chander Paul (2).

The respondents did not appear.

Judgment having been reserved, and afterwards deferred on account
of the decease of the appellant, Sarju Prassad, their Lordships' judgment
was delivered on the llth of February, 1893, by SIR E. GOUOH.

JUDGMENT.

[308] On the 7tb of December, 1864, one Mewa Lai obtained a decree
for money against Bir Bhaddar, the predecessor of the respondents, and
one Sat Narain, in execution of which certain shares in certain villages
were sold on the 20fch of November, 1871, and were purchased by Nandan
Tewari for Es. 12,325, of which Es. 9,000 were borrowed by him from
Sarju Prasad, the father of the appellant, in addition to Es. 5,000 previ-
ously borrowed. By a deed of hypothecation, dated the 3rd of December,
1871, Naodan Tewari mortgaged the purchased shares of the villages to
Sarju Prasad to secure the payment of the Es. 9,000 and interest. The
loan not having been paid, a suit was brought by Sarju Prasad against
Nandan Tewari, and a decree was obtained for payment of the money and
an order that the decree should be executed agiinst the property hypothe-
cated. At a sale by auction in execution of this decree on the 20th
of August 1874, Sarju Prasad became the purchaser of the prpoerty.
He thereupon obtained mutation of names from the Collector of the
district, but the Commissioner on appeal by Bir Bhaddar and two
other persons who were interested reversed this order, and directed
that they should be recorded as the real owners of the property,
the sale to Nandan Tewari being regarded as of an ism farzi character
only. Thereupon Sarju Prasad brought two suits against Bir Bhaddar
and the two other persons to recover possession of the property by cancel-
ment of the Commissioner's order. The record in the present suit is very
imperfect, and contains only the original decree and an appeal in one
suit ; but there is a written statement of Bir Bhaddar, and what is called
a petition, which is apparently a written statement, also by him. Both
are dated the 30th of July, 1880, and are substantially the same. In the
petition Bir Bhaddar states as follows: " Nandan Tewari is my Jcarinda
(agent). When my property was put up for sale in the execution of
Mewa Lai's decree, and the 21st of November, 1871, was fixed for sale,



(1) 6 A. 551. (2) 1 Marshall 569.

913
A VII-115



15 All. 309 INDIAN DECISIONS, NEW SERIES [Yol.



1893 ^' w ^k a view to purchase it, as advised by the plaintiff himself, borrowed

FEE 11 -^ S- 5,000 of the plaintiff on the day of the sale, on a bond dated

_ ' the 18bh of November, 1871, to deposit the earnest money, and'

PRIVY purchased the property in the name of Nandan Tewari. Afterwards,

COUNCIL * n or( ^ er ' deposit the balance of the consideration money, another

- ' [309] bond for Es. 9,000 was executed in plaintiff's favour. As Nandan

13 A. 801 Tewari was a fictitious purchaser, the plaintiff therefore got the last

(P.O.) mentioned document executed in his (Nandan Tewari's) name according

20 I. A. 108 to his choile. Nandan Tewari was never the actual purchaser. Neither

6 Bar. P.C.J. he nor the plaintiff has ever been put in possession."

7=17 Ind. The Lower Court found that Nandan Tewari was only a nominal

Jur. 320, purchaser, and that the real purchaser of the property was Bir Bhaddar,

and dismissed the suit. The High Court, on appeal, being dissatisfied

with the grounds of this judgment, required the Subordinate Judge to

examine Sarju Prasad and submit his evidence to the High Court, which

was done. Thereupon the High Court, in its judgment, held that Sarju

Prasad " was necessarily aware that Nandan Tewari was a sham pur-

chaser only at the auction sale of the 3rd of December, 1871, and that when

he elected to sue him alone as the real and single obligor of the bond for

Es. 9,000, and as the actual owner and representative of the estate bought

with this money, he did so with full kowledge of the true and different

facts of the case, and that therefore his present action to prove that

Nandan Tewari was the real and bona fide purchaser and proprietor must

fail," and it affirmed the decree of the Court below. This judgment waa

given on the 10th of April, 1882.

On the 9th of January, 1885, the present suit was brought by Sarju
Prasad against Bir Bhaddar and Nandan Tewari, seeking to recover
Es. 7,518-3-0 balance of the Es. 9,000, after deducting sums which had been
realized, and Es. 4,818-0-6. interest, from Bir Bhaddar personally, and
also against the property hypothecated in the bond. The first Court
made a decree for Sarju Prasad, which has been reversed on appeal by the
High Court.

After the judgment in the former suit, it might be difficult to hold
that the deed executed by Nandan Tewari. was a valid hypothecation of
the property, and it is not necessary to decide that question. The facts
admitted by Bir Bhaddar and also found by frhe Court in the former suit
between these parties are sufficient 'to show that the appellant, as the
representative of Sarju Prasad, is [310] entitled in equity to have it
declared that the sums claimed with interest are a charge upon the
property.

Their Lordships will humbly advise Her Majesty that an order be
made in terms of the following minutes : Discharge the decrees of both
Courts below. Declare that the sum of Es. 12,336-3-6, together with
interest Es. 864-9-0, awarded by the decree of the Subordinate Judge,
amounting in all to the sum of Es. 13,200-12-6, together with inter-
est on the said sum of Es. 12,336-3-6 at the rate of 8 annas per cent.
per mensem from the date of the decree of the Subordinate Judge, is
well charged upon the properties named at the foot of the plaint in favour
of Sarju Prasad. Liberty for the appellants as the representative of Sarju
Prasad, to apply to the High Court for the realization of the amount due
in respect of the said charge by sale of the said properties charged, in the
event of the said amount not being paid within six months of the date of
Her Majesty's order made hereon. Order the appellant to pay the costs

914



IN THE MATTER OP MACCREA 15 All. 311

of Nandan Tewari in the first Court, and the respondents as the represen- 1893
tatives of Bir Bhaddar to pay to the appellant the costs incurred by Sarju p EB . 11.
Prasad in both Courts below.

The respondents as the representatives of Bir Bhaddar will pay the PRIVY
costs of this appeal. COUNCIL.

Solicitors for the appellants : Messrs. Ochme, Summerhays and Co.

Appeal decreed. * *'

(P.C.)=

20 I. A. 108

15 A. 310 (P,C ) = 20 I. A. 90 = 6 Bar. P.C.J. 3 = 17 Ind. Jut. 430. 6 Sap. P.C.J.

7-17 Ind.
PRIVY COUNCIL. Jur.320.

PRESENT :

The Lord Chancellor, Lords Watson and Morris, Sir Richard Couch
and the Hon'ble George Denman.

Petition for leave to appeal from a judgment of the High Court at Allahabad.



IN THE MATTER OF MACCREA.

[13bh May, 1893.]

Refusal of leave ti appeal from a judgment and conviction under tin Indian Penal Code
General rulz as to refusal of leava to appealin criminal casts Misdirection of a
jury not of itself a ground.

Although in very special and exceptional circumstances, leava to appeal to Her
Majesty in Council rtuy be granted in a criminal case, no countenance was given
to the view that an appeal would ba allowed merely on the ground that the Judge
trying the case had misdirected the jury,

[311] There was no reason to believe that there had been any misdirection
by the Judge, or that he had, as he was alleged by the petitioner to have done,
misconstrued, in charging the jury, a section of the Penal Code. Not only on
the latter ground, but on the broader ground above stated, the petition was
rejected.

[R., 2 A.L.J. 718 ; 2 L.B.R. 237. "J

[N.B. For the early stage of the case, see 15 A. 173 = 13 A.W.N. (1893) 71.]

PETITION for special lea>ve to appeal from a judgment and conviction
(I3bh June, 1892), of the High Court in Criminal Sessions, under ss. 511
and 420, Indian Penal Code.

The petitioner was convicted, on the above date, of (1) an attempt to
cheat and fraudulently induce the Comptroller- General to deliver to him,
or to Asad Ali, a Government Promissory Note for Us. 500, and to pay
the accused interest thereon ; (2) conspiring with Asad Ali with that
object ; (3) abetting an attempt by Asad Ali to cheat. He was sentenced
to two years' rigorous imprisonment.

The High Court refused an application, made on the 1st December,
1892, under s. 32 of the Charter of 1866, that the case might be declared
a fit and proper one for appeal to Her Majesty in Council, on the ground
that the jury had been misdirected, to the effect, that the acts shown in
evidence amounted to an attempt at cheating within the meaning of the
sections above mentioned.

The charge related to a lost Government Note for Rs. 500, No. 9764,
with arrears of interest thereon from 1865, which had been alleged to
belong to the estate of one Mirza Husain Ali, brother of Asad Ali ; it was,
in effect that the petitioner had attempted to cheat, at Lucknow, by

915



15 All. 312 INDIAN DECISIONS, NEW SERIES [Yol.

1893 writing to the Comptroller- General, and doing other acts, between the

MAY 13. 17th of June and the 20fch of October in the year 1891, attempting

dishonestly to induce the Comptroller to pay the accrued interest to the

PRIVY petitioner, or Asad Ali, and to deliver a duplicate of the note to one

COUNCIL, or the other of them.

"I~L ft The petition stated that there was no evidence that an application

- ' had ever been made to the Comptroller, for the arrears of interest, or for

' ''IT the duplicate to be delivered, upon which he could act.

6 Bar P G J> [312] All that was done was, according to the petition, that

344 = 17 Ind. inquiries had been made at the Public Debt Office whether the note was

Jur, $30, outstanding or not : the petitioner had caused letters of administration

to the deceased to be issued, which recited that note No. 9764 belonged

to his estate, and had requested the police to investigate the alleged loss,

producing to them a copy of the lost note, sending also a copy of the

same, as a copy of the letters of administration, to the Exchange Gazette

for publication.

It was stated in the petition that KNOX, J. directed the jury that,
besides being satisfied as to the petitioner's intention to cheat, they must
be satisfied, before they could convict him, that he had done acts towards
cheating sufficiently important, and sufficiently near to the act of cheating
intended and contemplated.

Also that upon this question they must consider whether those acts
were sufficient to excite reasonable apprehension that the act attempted
would be carried out, with the intention to cheat. A subsequent applica-
tion for leave to appeal to the Queen in Council was refused, the Judges
drawing a distinction between the phrase " attempt to commit " used in
the English law in connection with crime, and the word " attempt " as
defined in the Indian Penal Code.

The Court was of opinion that in the s. 511 the word " attempt "
was used in a sense that would comprehend the acts of the accused.

Mr. H. Cowell and. Mr. A. H. Bodkin for the petitioner, submitted
that leave should be granted on the ground that substantial and grave
injustice had been done to him by reason of an erroneous construction
of s. 511 of the Penal Code by the Judge who tried the case. A conviction
had taken place in the absence of any evidence that there had been an
attempt to cheat. The jury should have bfeen instructed to consider
whether there had been any act done by the petitioner which actually
began the execution of an intention to cheet. The Penal Code did not
render a man punishable, under ss. 511 and 420, for acts which merely
tended towards such beginning, or which showed that, unless interrupted,
he might possibly begin such execution. A clear distinction existed and
was [313] recognised by the Code between preparation to cheat, and
attempts to carry it out. See ss. 393, 399, 402', an to the former, and
s. 307, (c) and (d) as to the latter. Even if,as the Judge appeared to have
said the Penal Code used the word " attempt " in a sense different to
that attributed to it by English law, still it was not intended by the Code



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 134 of 155)