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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 59 of 155)
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14 All. 22 INDIAN DECISIONS, NEW SERIES [Yol.

1891 colouring they received in her plaint in February 1889, which was drawn

FEB. 16. up by her Shia friend and karinda, Yad Ali. However this may be, the

deed would remain equally divergent from her expressed wishes, whether

APPEL- they referred to a mosque only or to Imambara and Majlis purposes

LATE also. The Court below was wrong in finding that the registration.

CIVIL, endorsement on the deed shows that the contents were read out to

the executant. On the contrary, it shows that the contents of s. 82,

11 A. 8= Act III of 1877, were explained to the executant, which is a very different
11 A.W.N. thing. It is not evident, as the Court below said, " from the testimony
{1891) 213. of Muhammad Hanif, Muhammad Ishaq andFakir Husen that the contents
of the deed were read out to plaintiff, and the purport of the deed was also
explained to her " As I pointed out above, Fakir Husen did nofc prove that
the con- [22] tents were read out to the executant. I explained why I dis-
believe that Muhammad Hanif or Muhammad Ishaq read the paper at all,
and no witness pretended that he or any one else explained the deed to the
plaintiff. The learned Subordinate Judge's remark "that the plaintiff's
object would have been frustrated if she had embodied it in a will instead
of a deed of gift, because a will operates as regards one-third only of the
property," is misleading, because he overlooks the limitation to the rule
in the case of consent of heirs. The Court below derived a further pre-
sumption against the plaintiff from the fact that "she remained silent for
a long time affcer she had come to know that the deed had been executed
contrary to her wishes." But he did not do so. Sometime in October,
probably early in the month, Yad Ali got a hint of the facts of the case
and told his employer, who took the promptest action possible in the
matter by at once ejecting Sakina and her family from her house and
society. She did not do this immediately on her return from Sheikhpur to
her home, as the Court below thought, but sometime afterwards when
her suspicions were roused as to the honesty of the transaction.

It is needless to consider the rest of the judgment upon the legal
aspect of the sort of possession requisite to make a gift good under the Muham-
madan law, as I am satisfied that possession did not pass at all. For
the reasons which I have stated above I hold that the plaintiff should have
got a decree, nob only on the sufficient ground that she had been led into
this deed disposing of her property under suspicious circumstances andwith-
oufc independent advice, but also because she has in my opinion furnish-
ed good reasons for holding that she was deceived into putting her
name to that deed under the impression that its contents were substantially
different from what in fact they are. Allowing the appeal I would reverse
the decree of the Court below and decree the appellant's claim with costs
of both the Courts.

STRAIGHT, J. I entirely concur in the judgment of my brother
Tyrrell.

Appeal decreed.



386



YII]



SABBI V. GANESHI



14 All. 24



14 A. 23 = 11 A W.N. (1891) 205.
[23] APPELLATE OIVIL.
Before Mr. Justice Mahmood.



SABRI (Plaintiff) v. GANESHI (Defendant}* [20bh June, 1891.]

Civil Procedure Code, s. 566 Remand Court to which remand is made not competent
to delegate its functions in reaped of such remand.

When a case is remanded under s. 566 of the Code of Civil Procedure to the
lower appellate Court for findings on certain issues, it is not competent to that
Court to delegate the decision of those issues to a Court subordinate thereto.

[P., 29 A. 660=4 A.L.J. 603=A.W.N. {1907), 209.].

THE facts of this case are as follows :

Oae Hira Lai died in 1881 leaving surviving him a widow, Musammat
Darbo, two daughters, Musammat Sabri and Musammat Ganeshi, and a
daughter-in-law, Musammat Kuar, widow of a deceased son. On his death
his widow, Musammat Darbo got possession of his property and her name
was entered against it on the revenue records. Muaammat Darbo died in
1885, and Musammat Kuar was then put into possession of the property.
Musammat Kuarsold the property on the 23rd December 1887 to one
Eukha. Thereupon Musammat Sabri sued her and her vendee to set aside
the sale of the 23rd Daoember 1887, and toget possession of the property.
In this suit she succeeded, and obtained possession. On the 10th January
1889 Musammat Ganeshi brought this present suit against Musammat
Sabri, claiming exclusive possession of the property in question on tjhe
ground that he was indigent and unprovided for, while her sister, the
defendant, Musammat Sabri, was in good circumstances. The Court of
first instance and the lower appellate Oourt both agreed in holding that
the plaintiff was entitled to succeed. The defendant then appealed to the
High Court. The appeal came before Mahmood, J., who, on the 25th
February 1891, remanded issues as to the respective means of the plaintiff
and the defendant for determination by the lower appellate Court. The
subsequent facts sufficiently appear from the judgment of Mahmood, J.

Mr. W. M. Golvin and Pandit Moti Lai, for the appellant.

Mr. Amir-ud-din and Munshi Siikh Bam, for the respondent.

JUDGMENT.

[24] MAHMOOD, J. For the reasons stated in my order of the 25th
February 1891, this case was remanded under s. 566 of the Code of Civil
Procedure to Che lower appellate Court for clear findings upon certain
issues therein mentioned.

The learned Subordinate Judge of Saharanpur, as the Judge of lower
appellate Court, by his rubkar of the 13th March, 1891, delegated the trial
of the remanded issues to the Munsif of Muzaffarnagar with the consent
of booh the parties.

The Munsif accordingly tried the issues and recorded findings in his
proceedings, dated the 28th March 1891. Upon the issues he came to tha
following conclusions :

" Both the sisters are, in my view of the evidence, possessed of scanty
subsistence, both are unprovided for, and both indigent."

* Second Appeal, No. 1092 of 1899, from a decree of Babu Mata Prasad, Subordinate
Judge of Saharanpur, dated the 28th June, 1889, confirming a deccee of Maulvi Iziat
Rai, Muusif of Saharanpur, dated the 4th March, 1889.

387



1891

JUNE 20.

APPEL-
LATE
CIVIL.

14 A. 23-

11 A. W.N
(1891) 205.



14 All. 25



INDIAN DECISIONS, NEW SERIES



[ol.



1891 These findings of the Munsif appear to have been sent back to the

JUNE 20. Subordinate Judge, who, on the 9th April 1891, fixed the 13th of that

month to hear parties on such findings.

- APPEL- Accordingly on the 13th April 1891 the findings of the Munsif com-

LATE ing on for decision before the Subordinate Judge, that officer contended

CIVIL, himself by simply exuressing the view that he concurred in the opinion

of the Munsif as to the findings recorded in the proceeding, dated the 28th

li A. 23= March 1891, and referred to above.

11 A.W.N. The findings of the Munsif were thus adopted by the Subordinate

(1891) 203. Judge, and it appears that the pleaders for neither parfcy raised any objec-
tion to such a course.

Thereupon the Subordinate Judge, accepting the findings of the
Munsif, has returned those findings 'to this Court, as if they v\ere the
findings of his Court, as the Court of first appeal, to which the case had
been remanded for determination of certain points of facts under s. 566 of
the Code of Civil Procedure.

I am of opinion that the procedure of the learned Subordinate Judge
was entirely erroneous, that the order of this Court of the 25th February
1891, directed as it was to the lower appellate Court, was to be carried
out by that Court, and that the learned Subordi-[25]oate Judge in
delegating bis functions to the Munsif by his order, dated the 13th March
1891, acted ultra vires and without jurisdiction.

I am further of opinion that the findings of the Munsif recorded in
his proceeding, dated the 28th March 1891, did not satisfy the require-
ment of his Court's order of remand, dated the 25th February 1891.

As has already been observed, the Subordinate Judge acted without
jurisdiction, and the whole proceeding is illegal and ultra vires.

Under these circumstances, following the uniform practice and rulings
of this Court, I am constrained to hold that there are no findings such as
would satisfy the remand order of the 25th February 1891, and it is my
duty to remand the case again to the learned Subordinate Judge for clear
findings upon issues mentioned in my order of the 25th February 1891,
with reference to the observations I have made.

I order accordingly. Upon receipt of the findings ten days will be
allowed to the parties for objections.

Cause remanded.



li A. 25 = 11 A.W.N. (1891) 170.
APPELLATE CRIMINAL.
Before Mr. Justice Straight.



QUEEN-EMPRESS v. HUGHES.* [1st August, 1891],

Jury, misdirection of What amounts to misdirection Act XLV of 1860, ss. 361, 366.

In a trial with a jury under s. 366 of the Indian Penal Code the Judge on the
question of intent charged the jury in the following words : " It remains only
to consider the questions of intent. The charge was that; the girl was kidnapped
in order that she might be forced or seduced to illicit intercourse. As to this,
it is sufficient to Bay that no other inference is possible under the circumstances.
When a man carries 06 a young girl at night from her father's house the pre-
sumption is that be did so with the intent indicated above. It would be open to
him, if he bad admitted the kidnapping, to prove that he had some other object,
but no other object is apparent on the face of the facts."

* Criminal Appeal, No. 607 of 1891.
388



YII] . QUEEN-EMPRESS V. HUGHES 14 All. 27

[26] Held, that this amounted to a misdirection of the jury. The question of 1891
intent was a pure question of facfc, but the way in which it had been put to the Ana i
jury left them no option but to adopt the view taken by the Judge.

THE facts of this case sufficiently appear from the judgment of APPEL-
Straight, J. LATE

Babu Parbati Charan Chatnrji for the appellant. CRIMINAL.

The Government Pleader, Munshi Ram Prasad and Mr. J. Simeon,

for the Crown. 14 * 28 =

il A.W.H.
JUDGMENT. (1891) 170 .

STRAIGHT, J. In this case John Michael Hughes was tried in the
Sessions Court before the Sessions Judge and a jury for the offence of
kidnanping one Claudia Caleb, the daughter of John James Caleb, a girl
aged 13 years and 7 months, from the keeping of her lawful guardian, with
the intent that she might be compelled, or in order that she might be
forced or seduced, to illicit intercourse. Along with Hughes was tried
a man of the name of David Baptist who was charged with the abetment
of the above offence. The last-mentioned person was acquitted, but
Hughes was convicted and sentenced to a period of seven years' rigorous
imprisonment. It has boen objected here on appeal that upon the question
of intent the learned Judge misdirected the jury in such a way as to cause
prejudice to the accused, Hughas, and upon that ground I am invited to
set aside the proceedings and direct a new trial.

Now the offence provided for by s. 366 of the Penal Code involves
two ingredients. First, there must be kidnapping or abduction, as defined
in ss. 361 and 362, and next, the act of kidnapping or abduction must be
done with either an intent or a knowledge, or with the object, that certain
things may happen which are mentioned within the four corners of s, 366.
In the present case the intent charged was as I have already indicated,
and it is in reference to the learned Judge's remarks upon that head that
I am invited to intervene. Now I should be the last person to be too
technical as to the language used by a learned Judge in charging a jury. At
the same time it is essential, so long as this latter institution has allocated
to it in certain cases the duty of determining questions of facts, to draw a
very broad line between what the duty of a Judge [27] is and what
the duty of a jury is, and to see that the Judge has not intruded
himself and his views into the province of the jury in such a way as to
lead them to form an opinion expressed by him that that is the only
opinion w;iich could be arrived at from the evidence. In other words,
in this case, for example, it was competent for the learned Judge to
recapitulate the evidence which bore upon the question of intent, and to
express for the gudiance of the jury what 8eemad to be the reasonable
and rational conclusion to be drawn from that evidence. But I have
read the learned Judge's remarks in this case. It does not appear
to me that he left the jury any alternative, and practically what he
told them was that upon the evidence there was only one conclusion
they could arrive at, namely, that the intent charged was proved. It
seems to me that that is going beyond the duty that a Judge has to
discharge. The question of intent was a pure question of fact, and
the mischief that has followed, is that, having very carefully examined
all the evidence in this case, I doubt if there was any satisfactory or proper
proof from which the jury were entitled to draw the inference that the
learned Judge told them they were bound to draw. His remarks were
these : " It remains, only to consider the question of intept. The charge

389



14 All. 28 INDIAN DECISIONS, NEW SEBIES [Yol.



1891 was k h a t *be girl was kidnapped in order that she might be forced or seduc-
IUG. 1. e ^ fco illicit intercourse. As to this, it is sufficient to say that no other
- interference is possible under the circumstances. When a man carries off a
AFPEL- young girl at night from her father's house the presumption is that he did
LATE so w ith the intent indicated above. It would be open to him, if be had
CRIMINAL a ^ m itted the kidnapping, to prove that he had some other object, but no
__ '' other object is apparent on the face of the facss." I differ from the learn-
14 A. 25= ed Judge. I think that upon the facts of this case there was much more
11 A.W.N. reasonable ground for the inference that this man had kidnapped this girl
(1891) 170. for the purpose of going to the father and insulting him by telling him
that he had taken his daughter away and that he might do his worst.
There is not a particle of proof that any indecent words were spoken by
this man either before or at the time he kidnapped the girl, and ifc
is a striking circumstance that after he had sent her away in an
ekka to the Christian village, Beli, he then [28] himself went into
the father's house and told him in specific terms what be had
done, whereupon he was seized by the father and handed over to a
police constable. Another circumstance is that neither at the time of
kidnapping nor subsequently was there slightest act of indecency
practised, or a single word spoken, and in the result the girl was only
absent for a period of about two hours. It is perfectly clear upon the
evidence in this case that there was extremely bad feeling between the
prosecutor on the one hand and this young man on the other. The
appellant had undoubtedly made himself most obnoxious and offensive to
Mr. Caleb, who had had on many occasions to remonstrate with him for his
conduct. I have no doubt that he is one of those ill-conditioned persons
who dislike remonstrance or advice, or warnings at the hands of
persons in the position of Mr. Caleb, the pastor of the Church to
which he belonged. Mr. Caleb's remonstrances with him had very
much aggravated him and he was determined to resent them by doing
something which was most degrading and insulting to Mr. Caleb. But
that falls very far short of supplying that adequate and very satis-
factory proof from which a jury would be entitled to draw the very
serious inference that is required for the purpose of proving the intent,
knowledge, or object contemplated by s. 366. I think myself the
terms of the learned Judge's judgment did amount to a misdirection to the
jury. I further think that that misdirection did prejudice the accused,
and, therefore, the only question which remains is, are the circumstances
such as to constrain me to order a new trial ? I have pointed out that
the offence under s. 366 of the Indian Penal Code involves, first of all, the
offence of kidnapping. Putting aside a great; deal of irrelevant matter that
appears in this record, J am satisfied that, the jury were right in holding that
this man did kidnap this girl, the object being that which I have indicated,
namely, to put the father in great distress of mind and to put a slur and
degradation upon him and subject him to a grave public insult. I think
therefore, I am entitled to hold as the Judge might have left for the jury to
find, had he thought proper to do so. that, although the intent is not proved
as required by s. 366, nevertheless the simple offence of kidnapping
C29] is proved, and it would have been competent for the learned Judge
to have told the jury in this case that, assuming that they were not satis-
fied as to the proof of intent, they might convict the accused of the lesser
offence under s. 361, I therefore shall deal with this case as if that
direction bad been given to the jury, and I shall treat the verdict, to the
extent that it finds kidnapping against the accused, as a good verdict.

390



YII] CHEDA LAL V. MULCHAND 14 All. 80

I then have to consider whether the sentence should be allowed to stand. 1891
or whether I should disturb it. I regret to say that I find upon this record ADO. 1.
some evidence that never ought to have been admitted as to the
character of the prisoner. The prisoner himself never put his character APPEL-
in issue, but, despite that, a witness was allowed to ba examined as LATE
to his being of a bad and dissolute character. It cannot ba too distinctly CRIMINAL.
understood, and I cannot say too emphatically that, where a man is being
tried upon a specific charge, unless within the four corners of the law, W A.2S=
proof of a previous conviction is allowed for the purposes of proving guilty H A-W.N.
knowledge, or whatever it might be, no question ought to be sanctioned (1891) 170.
and no evidence ought to be allowed to show generally that he is a man
of bad and dishoneSt character. That is forbidden by law ; but if an
accused at his trial chooses to put in issue the question of his good
character, it is then competent to rebut that evidence by giving evidence
of general evil reputation. The learned Judge explains the sentence that
he passed upon this man upon the ground that he was generally a person
of bad or dissolute character. We have nothing upon this record, except
the general statement of a witness who gives no details or particulars, to
prove this. We do not know in what direction his character is bad or
dissolute, and I myself wholly object to a Judge allowing his mind to be
influenced by any vague statements of chat kind. If the man had been
charged with and convicted of a criminal offence, such as rape, it may be
that the Judge might have allowed proof of this to be given. But there
is no such allegation here. At the same time, it is quite plain to my mind
from the action of this man in this case that he is a very audacious and
daring person, who deliberately sought to put a grave affront aud indig-
nity upon the pastor of his Church, becausa that pastor had remonstrated
with him as to his behaviour, [30] and had found fault with him for his
conduct generally. I have considered this matter very carefully and I
have come to the conclusion that the proper measure of punishment is
that he be rigorously imprisoned for a term of two years and six months.
I think it right to add that I see no reason to doubt the truth of
Mr. Caleb's statement in the main. In one or two matters there may be
discrepancies, but they are only slight. It does not seem to me that there
is the slightest foundation for the suggestion that he had lent himself
to a false case for the purpose of punishing the appellant.



14 A. 30=11 A.W N. (1891) 174.
REVISIONAL CIVIL.

Before Sir John Elge, Kt., Chief Justice, and Mr. Justice Tyrrell.



CHEDA LAL (Plaintiff} v. MULOHAND (Defendant}.
MINDAI (Judgment-debtor) v. KDNDAN SINGH (Decree-holder).*

[1st August, 1891. j

Attachment Small Cause Court Standing crovs Immove <ble Pr p'-r'ij, Act I of 1868
(Qe wal Cliuses Act) Civil Procedure CoieAct IX of 1887 \3matl Cause Courts
Act), sch it, d (6).

S.aniing crops are immoveable property in the sense of the General Clauses Act

(I of 1868), and of cl.(G) of the second sohedule of the Small Haue Courts Act (Act

IX of 1987), and of the Civil Prooedure Code. Madayya v Yenltati (1) approved.

[P., 15 &. 39l = l3A.W.N. 145; 11C.P.L.B. 89. Rel. on, 9 Ind. Caa. 133 (134); R., 32

0. 877; 14 G.L.J. 515 (524) = 16 C.W.N 540 <547) = 11 Ind Oas. 729 (734).]

* Reference under s. 617 of the Civil Procedure Code, Miscellaneous No. 47 of 1891.

(1) 11 M. 193.



14 All. 31



[Yol.



1891

AUG. 1.

KEVI-

SIONAL

CIVIL.

14 A. 30 -
tl A.W N.
(1891) 174.



THIS was a reference under a. 617 of the Code of Civil Procedure
made by the Hunan of Bareilly, sitting as a Small Cause Courb Judge, in
the following terms:

Suit No. 79 of 1891. Miscellaneous No. 160 of 1891.

CHEDA LAL. Plaintiff MINDAI. Judgment-debtor

v. v.

MuLCHAND. Defendant. KUNDAN SINGH. Decree- holder.

" These are two cases of different nature, but the points at issue, on
which I entertain some doubt, are common to both. They have therefore
been taken up together for the purposes of this reference, which I beg leave
to make to the Honourable the High Court under the provisions of s. 617
of Act XIV of 1882,

[31] " The suit No. 79 is for the recovery of Bs. 36-2 6 due under a
bond bv enforcement of lien on the hypothecated sugarcane crops, which
are still standing in the fields. The defence, inter alia, is that the stand-
ing crops are immoveable property, and that a Court of Small C luaes is
not competent to try a suit for enforcement of lien in respect of the same.

"The Micellaneous Case No. 169 contains an objection on behalf of
a judgment-debtor as to tbe propriety of attachment and sale of certain
standing crops, such as wheat, barley, &c., which were effected under the
provisions of s. 269 of Act XIV of 1882, in the execution of a decree by
order of this Court, on the Small Cause Court side. The judt>m c int-debtor
urges that the procedure laid down in ss. 274, 287 and 289 ibid should
have been followed, as the growing crops are immoveable property, and
that the Small Cause Court had no jurisdiction to proceed agiinst the
same under s. 269. The points for determination are :

1. Whether the standing crops are moveable or immoveable property
for the purposes of the Small Cause Court and the Code of Civil
Procedure ?

2. Can such a Court pass a decree for enforcement of lien against
them?

3. Can it make a valid attachment and sale of the same in execution
of its decree ?

A reference was formerly made by the Small Cause Court Judge
of Agra asking for the opinion of the High Court as to whether- trees
and growing crops could be attached and sold in execution of a decree as
moveable property by a Small Cause Court. The Honourable Court there-
fore gave a decision as regards the trees, but exprewsnd no opinion in
respect of the standing crops. See Umed Ram v. D>iulat Ram (l).
It was there held that trees were 'DQ moveable property within the definition
given in cl. (5) of s. 2 of Act I of 1868, and, as such, were not liable to
sale or attachment bv a Court of Small Causes under Act X[ of 1865,
notwithstanding that [32] they were classed as moveable property in the
late^Acts III of 1877 and IV of 1882.

"A somewhat similar question relating to the standing sugarcane
crops was again raised in the Honourable Court iuKalk i Prasad v.Ch'indan
Singh (2), bub the points there discussed and decided were not exactly like
those involved in the present cases. It appears to have been ruled there
(see pp. 21, 23) that, although the standing crops were moveable property
not only under Act III of 1877 and IV of 1882, but also under cl. (6) of s. 2
of Act I of 1868, yet a suit for enforcement of lien against; such crops was
not cognizable by a Court of Small Causes under Act XI of 1865 with



(1) 5 A. 564.



(2) 10 A. 20.



392



YII]



CHEDA LAL V. MULCHAND



All. 34



reference to a previous ruling in re Surajpal Singh v. Jairam Gir (1), which
laid down that such Court wa3 incompetent to entertain any suit for enfor-
cement of lien against any moveable property whatever.



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 59 of 155)