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to obliterate the distinction between acts which amounted to preparation
for, and acts which amounted to beginning the .execution of an offence.
So far as what the petitioner had done, went, no act of his had
rendered it possible for the Comptroller- General to deliver up any property
in his control. Many other things would have had to be done before the
delivery would have taken place, and before the offence would have been
completed. As to what constituted attempts reference was made to :

DIG



11] IN THE MATTER OF BtPACCREA 15 All. 315

The Empress v. Biasat Ali (1) ; The Queen-Empress v. Dhundi (2); In 1893

the matter of Francis Cassidy (3) ; R. v. Eagleton (4) ; R. v. Cheeseman (5). MAY 13.

It was submitted that this erroneous construction had the effect of

creating a new offence unknown to the Code ; of general importance ; PRIVY

inasmuch as s. 511 applied to nearly every offence under it. Thus, it was COUNCIL.

contended, there had arisen a case of that substantial and grave injustice,

referred to in their Lordships' judgment in re Abraham Malhry Dillet (6), 15 *' 81

which removed the petition from the effect of the rule forbidding appeals '"C.) 3 "
from ordinary convictions.

Also were cited : \*"' PC j'

Macleod v. The Attorney -General for New South Wales (7). j LI

Attorney-General of N. S. Wales v. Bertrand (8).

Their Lordships' judgment was delivered by LORD HERSCHELL.

JUDGMENT.

THE LORD CHANCELLOR Their Lordships are of opinion that leave
to appeal ought not to be granted in this case.

[314] The ground upon which leave is asked is that the petitioner
being indicted under the 511th section of the Indian Penal Code for an
attempt to cheat, there was no evidence of an attempt to cheat, but only
of preparation for such an attempt.

S. 511 provides that " whoever attempts to commit an offence punish -
able by this Code with transportation or imprisonment, or to cause such
an offence to be committed, and in such attempt does any act towards the
commission of the offence" shall be punished in the manner therein
directed.

The facts are that the petitioner had obtained, with a fraudulent
intent, as must be taken to be the fact after the finding of the jury, letters
of administration to be granted, which recited chat a certain lost Govern-
ment promissory note was the property of one Asad Ali, and that further
he bad with fraudulent intent sent those letters of administration to the
Public Debt Office as the foundation for an application for payment of the
money.

The learned Judge who tried the case laid down in his charge to the
jury ohat in order to convict the prisoner they must be satisfied, not only
that he intended to cheat, buc that he had done an act towards that
cheating, and the learned Judge clearly had in view the distinction between
preparation to commit an offence and acts done towards the commission
of the offence.

The jury found tbe petitioner guilty. Their Loruships see no reason
to believe that there was any misdirection on the part of the learned
Judge, or that there has been a miscarriage of justice. But they do not
desire to dispose of the petition simply upon that ground. If there be
any foundation for this application it rests upon ihis : that the learned
Judge did not in his charge to the jury correctly construe the 511th
section of the Penal Code, or that he left the case to the jury when there
was no evidence to go to the jury. In their Lordships' opinion, if they
were to sanction an appeal in the present case, it would be very difficult
to refuse leave to appeal in all cases in which it could be established that
there had been a misdirection by the Judge who tried tbe case. [315]

(1) 7 C. 352. (2) 8 A. S03. (3) 4 B.H.C.B. Cr. C. 17.

(4) 1 Dearsly 376, 515. (5) Leigh & Cave, 143. (6) 12 Ap. Ca. H.L. 459.

(7) (1891) A..C (8) 4 Moore p.C.N.S. 474.

91?



IS All. 316 INDIAN DECISIONS, NEW SERIES [Vol.

1893 Thore are, no doubfc, very special and exceptional circumstances in which
MAY 13. leave to appeal is granted in criminal cases, but it would ba contrary to
the practice of this Board, and very mischievous, if any countenance were
PRIVY given to the view that an appeal would ba allowed in every case in which
COUNCIL, it could be shown that the learned Judge had misdirected the jury.
18 "7~~ aio Petition rejected.

(P.C.)= Solicitors for the petitioner: Messrs. Ranken Ford, Ford, and

90 LA. 90 Chester.
Sar. P.C.J.

34 Ju = r 1 J30 nd 15 *' 315 = 18 *-W.H. (1893) 108.

APPELLATE CIVIL.
Before Sir John. Edge, Kt., Chief Justice, and Mr. Justice Aikman.



UDIT NARAIN SINGH AND ANOTHER (Defendants) v. JHANDA (Plaintiff-)*

[27th April, 1893.]
Civil Procedure Code, ss. 566, 567 R&fertnw of issues for determination Transfer.

Where an appellate Court has made an order of reference under s. 565 of the
Code of Civil Procedure, the return to such order must be made to the same
Couit, and each Court is not competent to transfer the appeal for disposal
elsewhere.

[F., 10 A.L.J. 89=15 Ind. Cas. 862 (863).]

THE plaintiff in this case sued in the Court of the Munsif of Mahaban
to recover possession of certain immoveable property from the defendants
by redemption of a mortgage given by the plaintiff's predecessor-in-title.
The defendants pleaded that the amount allegedly the plaintiff to be due
on the mortgage was not correct ; that they had been in adverse possession
for more than 12 years ; that the share to which the plaintiff was entitled
was much less than that claimed, and that under the terms of the mort-
gage the suit was premature. The Munsif gave the plaintiff a decree for
redemption of a iih share of the property claimed on payment of a sum
of Es. 200-10-4 with interest. The defendants having appealed, the District
Judge referred to the Court of first instance an issue as to whether it was
a condition of the morgtage that profits were to be taken in lieu of interest,
and directed the Court to take an [316] account of how much was in
fact due by the mortgagor, plaintiff. While this reference was still pending
in the Court of the Munsif, the District Judge transferred the appeal to
the Court of the Subordinate Judge, and he, on return being made by the
Munsif to the District Judge's order of reference, decreed the appeal and
the plaintiff's suit as against the two principal defendants with costs.

From this decree the defendants appealed to the High Court.
Munshi Madho Prasad, for the appellants.

'Mr. D. Banerji, for the respondent.

JUDGMENT.

EDGE, C. J , and AlKMAN. J. The District Judge aching under s. 566
of the Code of Civil Procedure referred to the Court of first instance cer-
tain issues for trial. Before the return to the order was made, the Dis-
trict Judge transferred the appeal to the Court of the Subordinate Judge.

* Second Appeal, No. 1290 of 1890,from*a"decree'of Babu Ganga Saran.Subordinate
Judge of Agra, dated the 20th September 1890, modifying a decree of Babu Raj Nath
Prasad, Munsif of Mahaban, dated the 22nd January 1800.

918



YII]



QUEEN-EMPRESS V. MAKHAN



15 All. 317



The only question which we need determine is whether the District Judge
had under such circumstances power to make that order of transfer. We
are of opinion that he had not. The last paragraph of s. 566 shows that
the return is to be made to the appellate Court, that is, to the appellate
Court which referred the issues for trial. By the first paragraph of s, 567
a memorandum of objections may be presented to the appellate Court and
the last paragraph of s. 567 enacts that " after the expiration of the period
fixed for presenting such memorandum the appellate Court shall proceed to
determine the appeal." There again the appellate Court is the Court
referred in s. 566. It is a very wholesome principle that the Court which
considered it necessary to refer issues for trial under s. 566 should ba the
Court to dispose of the case on the return. We set aside the order of
transfer to the Subordinate Judge and the decree of the Subordinate
Judge on appeal, and wa direct the District Judge to restore the appeal
to the file of pending appeals in his Court and to dispose of it according
to law. Costs here and in the Court of the Subordinate Judge will abide
the result.

Appeal decreed.



15 A. 317 = 13 A.W.N. (1893) 101.
[317] APPELLATE CRIMINAL

Before Mr, Justice Aikman.



QUEEN-EMPRESS v. MAKHAN.*' [29th April, 1893.]

Act.XLVof 1860, s, 411 Dishonest retention of stolen property Property belonging to
different owners Separate convictions.

Where a person was found in possession of stolen property identified as belong-
ing to different owners, but it did not appear that he had reoeived such property
at different times : Held that he oould not properly be tried and convicted under
a. 411 of the Indian Penrxl Code, separately in respect of the property identified
by each owner. Ishan Muchi v. The Queen- Empress (1) approved.

MAKHAN was committed to the Sessions Court at Meerut, charged
with an offence under s. 411 read with s. 75 of the Indian Penal Code
and was convicted under s. 411 and sentenced by the Sessions Judge to
two years' rigorous imprisonment, including three months' solitary
confinement.

It was proved that a theft had occurred in the house of the com-
plainants, Bihari Lai and Sri Bam, and that subsequently, on Makhan's
house being searched by the police, property belonging to these com-
plainants and other persons was found there.

In respect of one piece of the stolen property so found, namely, a shawl
belonging to another complainant, Makhan was tried and convicted by a
Magistrate and was sentenced to nine months' rigorous imprisonment,
which imprisonment he was undergoing at the time of the Sessions trial.

In the present case Makhan was charged with the possession of other
property found on the same occasion in his house.

The prisoner appealed to the High Court on the ground, which he
had pleaded in the Court below, but had failed to substantiate by any



APPEL-
LATE
OIVIL.

15 1. 818 =

18 A.W.N,
(1893) 108.



Criminal Appeal No. 271 of 1893.
(1) 15 0. 511,

919



15 All. 318



INDIAN DECISIONS, NEW SERIES



[Vol.



1893

APRIL 29 -

APPEL-
LATE
CRIMINAL.

15 A. 317 =
13 A.W.N.
(1893) 101,



evidence, that the property in respect of the possession of which he had
been convicted belonged to him.

The Government Pleader (Munshi Bam Prasad), for the Crown.

The appellant was not represented.

JUDGMENT.

[318] AlKMAN, J. The prisoner Makhan appeals against his con-
viction by the learned Sessions Judge of Meerut for an offence punish-
able under s. 411, Indian Penal Code. It appears from the record that
on the 5th of September 1892, the prisoner's house was searched by
the police in the presence of witnesses and certain property found to
have been stolen was found in his possession. Amongst that stolen
property was a shawl. For the dishonest possession of that shawl
the prisoner was convicted by a Magistrate of the first class on the
7th of November 1892, and sentenced to nine months' rigorous
imprisonment under the provisions of R. 411, Indian Penal Code, which
imprisonment he is now undergoing. The conviction against which he
now appeals is in respect of the dishonest possession of certain other
stolen property belonging to a different complainant which was found in
his possession at the same time as the shawl. In my opinion this
second conviction cannot be sustained. The mere fact that property
stolen on two different occasions from different persons is found at one
and the same time in the possession of an accused person is not of itself
sufficient to prove that that accused person has committed two different
offences under s. 411, Indian Panal Code, as it is quite possible that the
property, though stolen on two different occasions, may have been receiv-
ed from the same thief at one time, Vide Ishon Muchi v. The Queen-
Empress (1). I am therefore constrained to allow this appeal. I set aside
the conviction of and the sentence passed on Makhan by the Sessions
Judge on the 22nd of February 1893.



15 A. 318 = 13 A.W.N. (1893) 119.

REVISIONAL CIVIL.
Before Mr. Justice Aikman.



AJODHIA PRASAD AND ANOTHER (Applicants) v. NAND LAL SINGH

AND OTHERS (Opposite parties).* [6th May, 1893.]
Civil Procedure Code, s. 311 Execution o/ decree " Decree-holder."

The term " decree-holder " in s. 311 of the Code of Civil Procedure is not
limited to the decree-holder who instituted the ezeoution prooedings, but [319]
may include a deoree-holder who is ontulcd to come in and share in the proceeds
under s. 295 of the Code. Lakshmi v, Kultunni (2) approved.

[Diei., 4 C. W.N. 542 ; R , 15 Bom. L.R. 244 (-248) ; 19 Ind. Gas. 475 (477).]

THE facts of this case sufficiently appear from the judgment of
Aikman, J.

Pandit Sundar Lai, for the applicants. /
Mr. Scott Howell, for the opposite parties.



* Application No. 55 of 1892, under s, 622 of the Code of Civil Procedure, for
revision of an ordar of H. F. Evans, Esq., District Judge of Shahjahanpur, dated the
13th July 1892. ,

(1) 15 C. 511, (3) 10 M. 57.

920



YII] AJUDHIA PRASAD V. NAND LAL SINGH 15 All. 320

JUDGMENT. 1893

AlKMAN, -J. This is an application under s. 622 of the Code of Civil MAY 6 -
Procedure for revision of an appellate order of tha District Judge of Shah-
jahanpur from which no second appeal lies to this Court. The following
are the facts of the case. The applicants held three decrees against, the SIONAL
property of certain judgment-debtors. One Dharam Das held a decree CIVIL.
against the same property, on which decree he took out execution. The ~ "
applicants have applied for execution of their decrees praying that under '_

s. 295 of the Code the sale-procaeds of the property, after satisfying the , <R8ft * ' '
decree of Dhararn Das, which was passed on a prior incumbrance, might
be given to them. Their application vvaa granted. The property, which is
said to be worth over 1,000 rupees, was sold for less than 300 rupees.
The sale-price was, however, sufficient to nearly satisfy the decree of
Dharam Das,' who also had other security for his money. He was not
therefore interested in setting asido the sale. The applicants, under the
provisions of s. 311 of the Code, moved the Court to set aside the sale on
the ground of material irregularity. If, as is alleged, there was material
irregularity which resulted in the property fetching so low a price that
there was nothing over for the applicants after satisfaction of D*haram
Das's claim, it is quite clear that the applicants did suffer substantial
injury by reason of this irregularity. The Munsif granted the application
and set aside the sale. From this order the auction-purchaser appealed
to the District Judge. The District Judge being of opinion that
the words "the decree-holder" in s. 311 applied solely to the decree-
holder at whose instance the execution proceedings were instituted,
held that the applicants were not entitled to put in an application
under s. 311 of the Code of Civil Procedure, and set aside the
[320] Munsif's order as having been passed without jurisdiction. The
learned District Judge in support of this view relied on a ruling of this
Court, Man Kuar v. Tara Singh (1). The facts of that case were quite
different from those in the present case. In that case the application was
made not by a decree-holder, but by a judgment-debtor, to set aside the
sale of the property of another judgment-debtor, and the Court held,
following the clear words of the section, that only a judgment-debtor
whose property has been sold under Chapter XIX, can apply to set aside
the sale, and as the applicants there were judgment-debtors whose
property had not been sold, the Court held that they were not entitled
to apply under s. 311 of the Code of Civil Procedure. The learned
District Judge speaks of the applicants in the case he relied on as not
having previously applied under s. 295. From this expression it is
clear he has misunderstood the facts of the case. The applicants in that
case being judgment-debtors could not apply under s. 295 which refers
only to applications by decree- holders. It has been held by the Madras
High Court in the case of Lakshmi v. Kuttunni (2), that the words
" decree-holders" in s. 311, indicate any decree-holder who is entitled to
share in the proceeds of a sale under s. 295, and the view of the Madras
High Court is apparently endorsed by the Bombay High Court in the
case of Sorabji Edulji Warden.v. Govind Ramjee (3). I entirely concur in
the view taken by the Madras High Court. I can find nothing in the
wording of the section to limit the meaning of the words the "decree-
holder," in s. 311 to the decree-holders who instituted the execution-
proceedings. In my opinion these words are quite wide enough to cover

(1) 5 A.W.N. (1885) 124. (2) 10 M, 57. (3) 16 B. 91,

921
A VII 116



15 All. 321 INDIAN DECISIONS, NEW SERIES [Yol.

1893 the case of a decree-holder who is entitled 60 come in and share in
MAY 6. the proceeds of the sale under s. 295. It is but just that this should

be so, for whereas the decree-holder who instituted the proceedings might,

BEVI- as in the present case, sustain no substantial injury from an irregularity

SIGNAL in the sale-proceedings, other decree-holders entitled to share in the

CIVIL, proceeds might be most seriously prejudiced, and it would be inequitable

to deny them the power of obtaining relief. For the above [321]

151. 318 reasons, I am of opinion, that the Munsif had jurisdiction to entertain

18 A.W.N. the application of the applicants. I set saide the order of the District

(1893) 119. Judge, and direct him to restore the case to his file and dispose of th

appoai according to law. The costs of this Court will be the costs in

the cause.

Cause remanded.



13 A. 321 = 13 A.W.N, (1893) 109.

APPELLATE CIVIL.
Before Mr. Justice Tyrrell and Mr. Justice Blair.



MUHAMMAD AZIZ-UD-DIN AHMDA KHAN (Defendant) v. THE LEGAL
KEMEMBRANCER TO GOVERNMENT, N.W.P. AND OUDH (Plaintiff)*

[9bh May, 1893.]

Muhammadan Law Sunnis Waqf Relinquishment of possession on the part of the
waqf essential.

According to the law of Sunni Muhammadans it is essential to the validity of
a waqf that the waqf should actually divest himself of possession of the waqf
property.

Hence where a Bunni Muhammadan executed and registered what purported
to be a deed of w.iqf, but never acted upon it and retained possession until his
death of the property dealt with by the deed, which property subsequently passed
to his two sons by inheritance.

Held that no valid waqf of the property mentioned in the siid deed was
constituted,
[Diss., 14 Bom.L.R. 295 = 14 lod.Gas. 988 (989) ; R., 15 Ind.Cas. 36 (38) ; 2 N.L.R,

158 (161).]

THE facts of this case are sufficiently stated in the judgment of the
Court.

Pandit Sundar Lai and Maulvi Ghulam Mujtaba, for the appellant.
The Government Pleader, Munshi Ram Prasad, for the respondent.

JUDGMENT.

TYRRELL and BLAIR, JJ. The apoellant was defendant in a suit
brought under s. 539 of the Code of Civil Procedure in respect of an
alleged endowment made in June 1882, by the defendant's father. The
latter died on the 27th of February 1886. The plaintiff's case was that
under a registered deed made on the 1st of June 1882, the appellant's
father set apart the income of his village Para up to the limit of ninety
rupees a month after the payment of the [322] Government revenue
to be spent on the poor. The dead is No. 63 of the record. It
makes the following statements, that the writer owned the village Para
and had possession of it exclusively, that he had disposing capacity, and
made an endowment (no person being mentioned as the object) of the

* First Appeal No. 8 of 1891 from a decree of H, F. Evans, Esq., District Judge of
Moradabad, dated the 29th September 1890.

922



YIIJI



M. A. AHMED KHAN V. LEGAL REMEMBRANCER 15 All. 323



property fco the extent of ninety rupees a month nett profits for the use of
the poor and the needy. It was provided that if the income fell short of
ninety rupees a month the charity would be limited in proportion, if the
profits exceeded ninety rupees a month the excess was to be credited to
the fund. Now it has been found, and it is not disputed, that the ap-
propriator having registered this deed took it home and never carried his
recorded' intentions into effect. We are told that he destroyed the docu-
ment. It has not been produced on either side at this trial. It has been
found that the appropriator never spent any portion of the
inooma of the village Para under the terms of the deed. He
retained the possession and exclusive enjoyment of Para and all its income
till he died. He never made over possession or use to either of his sons
whom he had designated as mutawallis. In fact the whole transaction
was a paper transaction only. It never took effect. Notwithstanding
these facts and findings, the lower Court decided that, although the
Nawab did not act on or effectuate the provisions of the trust-
deed, " as a question of law I hold that the trust was not in
consequence invalidated or rendered null and void." Therefore the
learned Judge decided on the issue of the revocability of the ivaqf that it
" was not; acted on by the executant, but that it is nevertheless altogether
valid and in force." This is the main issue, and it was argued as such here to-
day. We are not called on therefore to determine whether the deed is not bad
for want of terms of impropriation and for uncertainty as to its objects.
The one question is : Is this deed, as amongst Sunnis, so valid by virtue
of its execution only that this action to compel the execution of the trust
would lie ? The learned Judge below seems not to have considered the effect
of the appropdator's conduct in never giving possession and in making no
change whatever with regard to the property dealt with. We have been refer-
red to authorities for the proposition that seisin, either formal or construc-
tive, is) [323] essential to the validity of the waqf. The point is dealt with on
page 115 of the Tagore Lacfcure on Muhammadan Law, Part II, for 1874,
where the author sums up in the following sentences : " Thus the appro-
priation becomes valid, that is, absolute, according to the various opinions
of the three great lawyers ; according to Abu Hanifa, in consequence of
the appropriations declaration, and the Magistrate's subsequent decree ;
according to Abu Yusuf, by his simple declaration, and, according to
Muhammad, by his declaration and delivery to a procurator. It passes
out of the possession of the appropriator." Again in Hamilton's Hidaya
on page 232 (edition of 1870) it is written that " alienation of the article
appropriated is completed by a decree of the Magistrate and the declara-
tion of the appropriator or the consignment of it to a procurator. It is
reported by Kadooree, from Hanifa, that the appropriator's right of pro-
perty is not extinguished, except where the Magistrate so decrees, or where
the appropriator himself suspends it upon his decease by declaring, 'when
I die this house in appropriated to such purpose,' and so forth. Abu Yusuf
alleges that his right of property is extinguished upon the instant of his say-
ing: - '1 have appropriated' and such also is the opinion of Shafi, because that
is a dereliction of property in the same manner as manumission. Muham-
mad says that it is not extinguished until he appoint a procurator and
deliver it over to him ; and decrees are passed upon this principle." A
case lately came before a Full Bench of the Calcutta High Court, Bikani
Mia v. Shuk Lai Poddar, (1) in which the Comparative authoritive of Abu

(1)-20G. 116.
923



1893

MAY 9.

APPEL-
LATE
CIVIL.

13 A, 321 =
13 A.W.N,
(1893) 109.



15 All. 324



INDIAN DECISIONS, NEW SERIES



[Vol.



1893 Yusuf on questions of Muhammadan law amongst Sunnis is discussed, and
MAY 9. the majority of the Full Bench decided that the authority of Abu Yusuf
is to be postponed to that of Muhammad. This latter's exposition
APPEL- of the law which has just been cited supports the appellant's case,
LATE We find therefore that in respect of this waqf, the income of which
CIVIL. was never employed for the declared purpose, the appropriator having
retained exclusive proprietary possession, which possession passed by
13 A 321= inheritance under the Muhammadan law to his two sons, the defendants,
18 A.W.N. there was never a valid and operative waqf, but an [324] inchoate
(1893) 109. endowment only, which stopped short at the written and registered



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 135 of 155)