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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 60 of 155)
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" The Act XI of 1865 has since been repealed. Under art. (6) of sob. ii
of Act IX of 1887 the jurisdiction of the Small Cause Court is excluded
from trying suits for enforcement of lien as regards immoveable pro-
perty only. Such Court now appears to be competent to dispose of
suits for enforcement of lien against moveable property. The precedent
in re Surajpal v. Jairamgir (1) which was based upon the repealed Act does
not appear to be in force any longer. The effect of the ruling in re Kalka
Prasad v. Chandan Singh (2) would therefore be that a Court of Small
Causes under Act IX Of 1&S7 can try suits for enforcement of lien against
standing crops and can attach the same in execution of its decree, treating
them as moveable property.

"In my humble opinion the case of a tree is distinguishable from
that of standing crops. A tree is generally planted with the intention of
being kept and preserved for ever, though it may be cut off and removed at
pleasure. The case of a tree resembles in all respects that of a house which
may likewise be demolished afc one's will. Both are equally permanently
fastened to the earth and therefore fall equally within tbe definition of
immoveable property under clause (5) of s. 2 of Act I of 1868. Standing crops
are [33] never cultivated with the intention of being kept permanently, bub
they are intended from the very beginning to ba reaped after a few months.
Their case, and particularly grain cropjs when they are in ear, resembles
that of fruit on trees, and, as such, they are moveabie property. It has
been ruled that fruits, even when they are attached to trees which are
permanently fastened to the earth, are moveable property, and suits relating
to them are cognizable in a Small Cause Courb [Nasir Khan v. Karamat
Khan (3)J. It is true that by a wide interpretation of clauses 5 and 6 of
s. 2 of Act I of 1868 everything attached to the earth, whether perma-
nently or temporarily, is immoveable property, so long as it is not severed
from the earth, but, by a qualified and reasonable construction of these
clauses with reference to tbe natural and ordinary course of affairs, the
things which are really moveable shall not be classed with the immoveabla
property simply because they are partially attached to the earth. If the
definition given in clause 5 be strictly construed, every moveable thing,
such as utensils, furniture, clothes, &c., would become immoveable property
if a portion of the same is sunk under the ground. In that case nothing will
ever be attachable in execution of a Small Causa Court decree, as the jndg-
ment-debtors, after being aware of this interpretation, would make every-
thing of their household as immoveable property as soon as they receive
intimation of the issue of writ of attachment. I would therefore find the
issues under reference against the defendant and the judgment-debtor.

" Tbere is, however, a recent ruling of the Madras High Court in
their favour [Madayya v. Venkata (4)J. There the issue? now raised were
directly discussal anl decided after referring to the Allahabid cases in re
Nasir Khan v. Kiramat Khan (3) and Umit Bam v. Daulat Rim (5)
above alluded to, an 1 after considering two other cases, Pandah Gazi v.
Jennuddi (6) ami Sadu v. Sambhu (7), but without any reference to the
ruling in re Kalka Prasad v. Chandan Singh (2) which apparently
enunciates a conflicting view. [34] As the matter is of some importance



1891

AUG. l.

EEVI-
SIONA
CIVIL.

li A. 30 =

11 A.W.N.
(1891) 174,



(1) 7 A. 855.
(5) 5 A, 564.



(2) 10 A. 20.
(6) 4 C. 665.



(3) 3 A. 168.
(7) 6 B. 592.



(4) 11 M. 193.



A VII-50



393



14 All. 33 INDIAN DECISIONS, NEW SERIES [Vol.

1891 and daily occurrence, I consider it desirable to solicit a clear decision of
AUG. 1, our own High Court thereon for my present and future guidance.

It will not be out of place perhaps to mention that according to
the practice that prevails in this Court from several years past, standing
SIGNAL crops are invariably treated as moveable property for the purposes of
ClVIL. attachment and sale. I believe such is the practice in many other Courts

of these Provinces. In regarding them as immoveable property both parties

li A. 30= \vill often be put to great inconvenience and loss in their attachment and
11 A.W.N. gale, as was pointed out in detail by the referring officer in the Madras
(1891) 171, case. In many instances all steps taken under ss. 274, 287 and 289 of
Act XIV of 1882, all delays occurring between ths dates of attachment and
sale and all expenses incurred for an inquiry under the High Court's Circular
Order No. 4. of 1881, for the issue of sale proclamations, and for the
care and custody of the crops since attachment will become useless
when they are ripe enough and reaped long after the attachment, but a
few days before the date fixed for sale ; because after they have been
severed from the ground they will have to be sold as moveable property.
It will be a mere technical procedure and also an anomaly to treat, the
crops as immoveable property so long as they are standing in the fields
and afterwards as moveable property in the course of the same execution
proceeding,"

The reference came before Edge, C. J.,and Tyrrell, J., who gave the
following opinion thereon :

OPINION.

EDGE, C. J., and TYRRELL, J. Our answer to this reference is that
we agree with the opinion expressed by the High Court at Madras in
Madayya v. Yenkata (l), and, we hold that standing crops are immoveable
property in the sense of the General Clauses Act (I of 1868) and of
clause (6) of the second schedule of Act IX of 1887 and. of the Code of
Civil Procedure.

Return the papers.



14 A. 33 = 11 A.W.N. (1891) 192.

[35] APPELLATE CIVIL.

Before Mr. Justice Straight and Mr. Justice Mahmood.



JWALA DEI (Petitioner) v. PlRBHU (Opposite Party)*
[4th August, 1891.]

Guardian and Ward Guardian ad li tern -How long appointment of guardian ad litem
remains in force -Ch inqe of guardian on application of ward Act Vlll of 1890
(Guardian and Wards Act , a. 10.

Where a guardian ad li'em has once been appointed, his appointmpnt enures
for the whole of the Us in the course of which it has been mvip, unless and
until it ib revrked by the Court; but if the person to whom suoh guardian is
appointed prays for bis removal and for the substitution of a guardian named by
the applicant, the Court will appoint the guardian so named in the absence of
any special and valid objection to such person.

[R., 22 M. 187 ; 2 A.L J. 489 ; 5 O.L.J. 434 ; 1 N.L.R, Ii28.]

First Appeal, No. 13 of 1891 from an order of F. E. Eliot, Esq., District Judge of
Allahabad, dated the 16th December 1890.

(1) 11 M. 193.

394



YII]



JWALA DEI V. PIRBHU



14 All. 36



A HINDU boy, named Pirbhu or Eabi Shankar, aged about 15 or 16
years, having become a convert to Christianity, his adoptive mother,
Musammat Jwala Dei, applied to the District Judge under s. 10 of Act
VIII of 1890 to be constituted his legal guardian. The application was
resisted on behalf of the minor and was ultimately refused by the District
Judge. Musammat Jwala Dei, then appealed to the High Court, the
minor being represented by his guardian ad litem in the lower Court, the
Eev. J. M. Alexander. In the High Court, however, the minor completely
changed bis attitude and expressed his readiness to go to his adoptive
mother, Musammat Jwala Dei, and to accept her as his guardian.

Pandit Ajudhia Nath and Kuar Parmanand ; for the appellant,

Mr. C. Ross Alston, for the Eev. J. M. Alexander as guardian ad
litem to the respondent.

JUDGMENT.

STRAIGHT. J. This is an appeal from an order of the District Judge
of Allahabad, dated the 16tb December 1890. The matter before him
originated in an application preferred under the Guardian and Wards Act
of 1890. The mother of one Eabi Shankar, a minor, being the applicant,
she prayed that she might be declared by order of the Court the guardian
of the person of such minor son. At the time that application was filed,
the minor appears to have been under the religious influence of the Eev.
Mr. Alexander, and was [36] in the custody and control of some other
persons. For the purposes of the proceedings before the District Judge,
Mr. Alexander was appointed guardian ad litem, and that proceeding was
contested, and in the result the learned Judge refused to make any
order to appoint the applicant guardian. It is wholly unnecessary for
the purposes of this judgment to enter at length into the reasons given
by the learned Judge. It is enough to say that be found that Eabi
Shankar was a minor, and further tbat he had attained a knowledge and
discretion which entitled him to judge for himself ; that he was well able
to take care of himself, and that it was unnecessary to appoint a
guardian. From that decision of the District Judge an appeal was pre-
ferred to this Court by Musammat Jwala Dei, the mother of the minor,
and it originally came before my brother Mahmood in Single Bench,
and be, being of opinion upon the points raised that it might become
necessary to re-consider the ruling of himself and myself in Sarat Chandra
Chakarbati v. Forman (I L. E,, 12 All. 213), thought it well to guard
against such a contingency by requesting that I should be associated with
him to form a Division Bench to hear the appeal: It has now become
unnecessary to enter into the matter at large. In the proceedings before
the District Judge the minor took up and occupied through his guardian
ad litem a hostile and antagonistic position to his mother, but since those
proceedings closed, he has wholly altered his attitude, and, according to
the terms of a petition filed by him on the 21st March lasfi, which he has
in Court before me admitted to have signed and presents 1 to this Court,
declared his wish that his mother should be appointed his guardian and
tbat he should remain under her custody and control, to which, he further
states, he has now returned.

Mr. Alston has been instructed to appear for the Eev Mr. Alexander,
the guardian ad litem. Some question at first arose as to whether he
could properly be regarded as a party to the present appeal. Mr. Alston's
contention at first being that the appointment of a guardian in a pro-
ceeding of this sort in the Court below only enures for the term of the-
proceeding in that Court.

395



1891

AUQ. 4,

APPBL-"

LATE

CIVIL.

14 A. i5 =

11 A.W.N.
(1891) 192,



All. 37



INDIAN DECISIONS, NEW SERIES



[Vol.



1891
AUG. 4.

APPEL-
LATE
CIVIL.

14 A. 35 =

11 A.W.N.
(1891) 192.



[37] I am strongly indisposed to adopt that view, and indeed the
learned counsel himself has very fairly and properly resiled from that
position, and is now prepared to admit that his client is the respondent
in this appeal as the guardian ad litem of the minor. But I should like
to add this, that where a person is appointed as the guardian of a minor for
the purposes of a lis, that moans of such Us in all its ramifiaafcions, and so
long as it subsists, whether in the Court of first instance or in the Court
of appeal, unless he takes the necessary steps to have himself discharged
from that position which has been put upon him by the Court. If any
other view were to be entertained not only the gravest inconvenience will
be caused, but the interest of the minor might be very seriously imperilled
and prejudiced. Consequently we have, in my opinion, before us a
properly constituted appeal qua the array of appellant and respondent.
Therefore, Mr. Alston appearing for the Rev. Mr. Alexander, the guardian
ad litem, properly represents the interests of the minor, Rabi Shankar.
He does not contest or question the propriety of this appeal, and, as he
very properly observed, it would be absurd for him to do so, in view of
the deliberately expressed wish of the minor, recorded and registered in his
petition filed in this Court of his desire and wish that his mother should
be his guardian and should have the custody and control of his person.
Moreover, in a proceeding of this kind a Court having to deal with
it would, in my opinion, be bound by the wish expressed by a
minor, unless it saw that the guardian he asked to be appointed was an
undesirable and unsuitable person, to give effect to that wish and to invest
with power the person he wished to be his guardian. This appeal there-
fore succeeds and the order of the learned Judge must be set aside, and I
direct that the order do pass declaring that Musammat Jwala Dai is the
guardian of the person Pirbbu alias Rabi Shankar, her minor son, and that
she be invested with all the powers under the Act that appertain and belong
to a person of that kind. The parties will pay their own costs in all the
Courts.

MAHMOOD, J. I am entirely of the same opinion as my brother
Straight, but since he has been good enough to consent to sit with me
38] in this case in consequence of my order of the 20bh April 1891, I
only wish to add that when the case was before me in the Single Bench
upon that day, there appears to have been some confusion in the argu-
ment on behalf of the petitioner when it assailed the concurrent ruling of
my brother Straigat and myself in Sarat Chandra Chakarbati v. Forman (1).
That; was an application under a totally different statute to the one
in this case, namely, the application here appears ' to be such as is con-
templated by Chapter II of Act VIII of 1890. I may say, therefore, that
the ruling to which I have referred has no application to this case. If it
bad, it would be a matter for serious consideration for me, so far as I am
concerned, to alter the view and the rule of law which was laid down in
that case. There are some circumstances in this case which amply go to
indicate that it has no relation to questions of custody in the sansa which
Act IX of 1861 would involve. As a matter of fact, there is no such
question, and as my brother Straight has sail enough to sho<v that, at
any rate, the ruling in Sarat Ghandra-Ohakarbati v. Forman (1) is not one
which applies here, I agree also in the decree which my brother has made.



(1) 12 A, 213.
396



YII] QUEEN-EMPRESS V. NIDDAH 14 All. 39

1* A. 38 = 11 A.W.N. (1891) 176. jggj

APPELLATE CRIMINAL. AUG. 5.

Before Mr. Justice Straight.



QUEEN-EMPRESS v. NIDDAH.*
[5th August, 1891.]

Attempt to ccnimit murder Facts necessary to constitute such attempt Act XLV of
1660, ss. '299, 300. 307, fill.

Section 511 of the Indian Penal Code does not apply to attempts to commit
murder which are fully and exclusively provided for by s. 307 of the said Act.

A person is oriminally responsible for an attempt to commit murder when,
with the intention or knowledge requisite to its commission, he has done the last
proximate act necessary to constitute the completed offence, and when the com-
pletion of the offence is only prevented by some cause independent of his voli
tion.

[P., 9 C.L.J. 432 = 10 Or. L.J. 57 = 2 Ind. Gas, 593 (596); R., 9 O.P.L.R. 14 (17)
Or. ; 30P.R. 1904 (Cr.) ; U.B.B. (18921896), Vol. I, 191.]

THE facts of this case sufficiently appear from the judgment of
Straight;. J.

[39] Mr. 0. Ross Alston (at the request of the Court),for the appellant;.
The Government Pleader, Munshi Ram Prasad, for the Crown.

JUDGMENT.

STRAIGHT, J. This is an appeal from a judgment and sentence of
the learned Judge of Agra, dated the 10th January 1891, under the following
circumstances. Ram Lai and Niddha, Chamar, were absconding criminals
against whom a warrant had been granted for their arrest upon a charge
of dacoity. On the 8th November 1890, certain chaukidars having
received information of the whereabouts of these persons went to a field
accompanied by some other persons for the purpose of taking them
into custody. The following facts are found by the learned Judge, and
they are amply proved by the evidence. He says : " As soon as Ram
Lai and Niddha perceived che men advancing they jumped up, and Ram
Lai fired a gun straight at them. This missed. Niddha then brought
up a sort of blunderbuss he was carrying, a sort of half carbine, half horse
pistol with a bell-mouth, known as a kirabiu, to the hip and pulled the
trigger. The witnesses swear that the cap exploded but the charge did
not go off." Thereupon, after some struggle, into which I need not go,
Niddha was arrested and was subsequently tried for attempted murder.
Ic is in regard to that trial that this appeal has arisen, and it will be
convert ient to set out fully what the. learned Judge had to say with regard
to che legal aspects of the evidence against Niddha. A remarks : " As to
Niddha, the point is raised that even conceding the facts to be correctly
stated, they cannot amount to attempted murder under s. 307, Indian
Penal Code. As to Niddha, the question is, did he, by

pulling the trigger of a gun or pistol which he knew to be loaded, commit
an offence which amounts to an attempt to murder? The witnesses swear
that the hammer fell and there was a distinct detonation of the cap. It is
proved that the karabin was loaded when captured, No cap was found, but
the hammer fitted very imperfectly on the nipple, and in the scuffle the
exploded cap might easily have been knocked off. There is a case in the
Bombay High Court Reports, Vol. IV, p, 17 Crown CaseslRegma v.Francis

Criminal Appeal No, 222 of 1891,
397



14 All. 40 INDIAN DECISIONS, NEW SERIES [Vol.



1891 t^O] Cassidy, in which it was held thai; in order to constitute the offence

AUG. 5- f attempt to murder under s. 307, Indian Penal Code, the act committed

by the prisoner must be an aot capable of causing death in the natural

APPEL- and ordinary course of events. In that case, Francis Cassidy presented an

LATE uncapped rifle, believing it to be capped, at the Drum Major of his corps,

CRIMINAL ^ u * was P reven ' ie( 5 from pulling the trigger. The Court held that he could

_ not be convicted under s. 307, Indian Panal Code, but that a conviction

14 A. 38= would hold 1 good under s. 511 rea,d with as. 299 and 300 of the Indian

11 A, W.N. Penal Code. In this case I have no doubt that the accused Niddha pulled

(1891) 176. the trigger knowing the gun to be loaded and intending it to go off. There

is doubt as to whether it was capped, as the cap was not found, and the

snap of the hammer on the nipple might be mistaken for a detonation.

The Court concurs with the assessors, who find that the accused Niddha

fired, or rather tried to fire, the carbine with intent to cause death or

grievous hurt, but, altering the section from s. 307, Indian Penal Cade, to

s. 511 read with ss. 299 and 300, directs that Niddha be rigorously impri-

soned for five years."

When this appeal came before me and I had looked into the case of
Cassidy, I asked Mr. Alston to argue it on behalf of the appellant, who
was unrepresented, and on a subsequent date I had the great advantage
of hearing an admirable discussion of the points involved on both sides
and have now taken time to consider what view I ought to adopt.

Although in one aspect the case of Queen v. Gassidy (1) does not
necessarily interfere with the conclusions upon the merits at which I have
arrived in this case, in another, it is necessary for m3 to consider whether,
having regard to the language of the Indian Penal Code, it is competent
for me, as the learned Judges who decided that case held it was competent
for them, to convict of attempted murder upon s. 511 taken in connection
with ss. 299 and 300 of the Indian Penal Code. It will be convenient to
consider that oortion of the judgment of the Bombay Court which deals
with that [41] matter first. I am of opinion that s. 307, Indian Penal Code,
is exhaustive, and that within the four corners of that section are to be
found the whole provisions of the law relating to attempts to murder. I
am led to this conclusion by an examination of the terms of s. 511, Indian
Penal Code. They are as follows :

" Whoever attempts to commit an offence punishable 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. " Now it appears to me that the attempts which are- limited by
s. 511 are attempts to commit offences which by theCode itself are punishable
either with " transportation or imprisonment. " It cannot properly be said
that the offence of murder is punishable with either of those things. In
my opinion, if murder, as mentioned in ss. 299 and 300, was intended to
be included, the Legislature would, before the word transportation, hava
inserted the word " death. " But, again, the section goes on and says
that certain things being done, the person who does those acts shall,
"where no express provision is made for the punishment of such attempt,"
be punished in a particular way. As I have pointed out by s. 307, Indian
Penal Code, there is express provision made in the Code itself for the
punishment of an attempt to murder. It seems therefore to me that
when the framers of s. 511 drew it up in the terms that they have drawn
>it up, they especially meant to exclude those attempts to commit offences

(1) 4 B.H.O.R. Or. 17.
398



YII] QUEEN-EMPRESS V. NIDDAH 14 All. 43

which in the various preceding sections of the Code were specifically and 1891
deliberately provided for with punishments enacted in the sections AUG> 5 -
themselves. I have therefore for these reasons come to the conclusion .
that s. 307 is exhaustive, and that no Court has any right to resort to
the provisions of ss. 299 and 300 read with s. 511 for the purpose of LATE
convicting a person of the offence of attempted murder, which, accord- CRIMINAL,
ing to the view of the Court, does not come within the provision ' _
of s. 307, Indian Penal Code. I need only add that the maxim ex- _ ", ~~
presso unius, &c. &c., should be applied in construing a penal statute / 1M1 \ ? '
of this kind, and, apart from that, it is obvious that any other view
would introduce the greatest possible inconvenience and a vast con-
[42]flict of opinion as to what would constitute an attempt to commit
murder within the meaning of the Penal Code.

So far, therefore, I am constrained to say that I differ with the view
expressed by the learned Judges in the case of Queen v. Gassidy (1). But
I have before remarked upon the facts as disclosed in that case, and in
this case I do not think that the view of the learned Judges formed on
those facts would in any way preclude me from adopting the view that I
am about to take in this case, viz., that there was a good attempt to commit;
murder within the meaning of s. 307, Indian Penal Code. In the case of
Cassidy the man presented an uncapped gun at another, he believing it to
be capped. He never pulled the trigger, because he was prevented from
doing so, and in reference to what I am about to say as to the facts of this
case and the view 1 take of the law bearing upon it, I do not feel called upon
to say, one way or the other, whether upon those facts there was a sufficient
attempt. But in the present case the matter is wholly different. The appel-
lants was an absconding criminal in the company of another absconding
criminal. It is obvious, upon the evidence and the finding of the learned
Judge, that he was determined in conjunction with that person to resist his
lawful apprehension, and that for the purpose of doing so he was armed with
a loaded blunderbuss and that in the direction of the persons who were
seeking to arrest him, he presented the weapon, pulled the trigger, the
hammer fell on the nipple, and it was only owing to the circumstance
that the cap did not explode, that the gun failed to go off and consequently
no harm was done.

Now the difficulty is made in the Bombay case to which I have refer-
red by the words of s. 307 which say : "whoever does any act with
such intention or knowledge and under such circumstances that if he by
that act caused death he would be guilty of murder." The learned Judges
of Bombay lay very great stress upon the words "under such circumstances."
With the utmost respect for them, I think they have attached too much
importance to those words. The words " under such circumstances " have
in my opinion no other [43] meaning than this, that the act must be done,
in such a way and with such ingredients that if it succeeded, and death
was caused by it, the legal result would be murder according to ss. 299
and 300. The samo words are used in the section dealing with the attempt
to commit culpable homicide, and I cannot read them as requiring me to



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 60 of 155)