SING บ. SHEWUKRAM, RAI DURGA 1870 and why yet they should not convey only that meaning for CHATTAR LAL which Mr. Paul contends. We remark that, whether the gift was an absolute gift to Rani Dhan Kunwar, or a restricted gift, first to her, and then to her daughters, and their heirs after them, in either case, there was a restriction in the gift—a restriction to the effect that, as long as the donor lived, he should retain his properties, and transact the business connected with them as heretofore. It is quite possible, therefore, that he may have been providing for a contingency, viz., the contingency of the Rani Dhan Kunwar's deceasing before himself. In that case he might, and very reasonably would, have wished that the daughters of Rani Dhan Kunwar, and any children of theirs, should be heirs and maliks. Rani Dhan Kunwar was not to have the enjoyment of his estates so long as he lived; and if she predeceased him, what was more natural than that he should have wished that in such a case the daughters of the Rani, viz., Dhan Kunwar, and any offspring of theirs should be heirs and maliks. This is, we think, a reasonable explanation of the second paragraph; and when we consider the terms of the first paragraph as compared with the terms of the second, it is certainly a more reasonable explanation than the one on which Mr. Paul relies. If, as we think is the case, the second paragraph has no direct connection with the first, except to the extent above indicated, then it seems to us that there is, in the first paragraph, an absolute gift to the Rani Dhan Kunwar such as would entitle her to alienate the property; for, in so many terms, the testator declares her to be his sole heir and malik (that is, proprietor) and not only declares this, but prays that, in furtherance of this declaration, a step may be taken by which she may be made known to the world as such heir and proprietor; and if, as we believe to be the case, the second part of the sentence places no restriction upon the gift made in the first part, then Rani Dhan Kunwar having, as has been admitted by the plaintiff, come into possession of the entire estate, real and personal, and not being in so many terms restricted from alienating the estate, is not, by the terms of any law or usage which bind a Hindu family, prevented from alienating such estates. There have been, it may be mentioned, several SING v. SHEWUKRAM, alias RAI DURGA PRASAD. cases quoted to us on the one side, and on the other decisions 1870 given by their Lordships in the Privy Council. We have CHATTAR LAL carefully considered the terms of those decisions, and we cannot say that any of them are, to our minds, either directly or indirectly in point, and help us therefore to any right determination of the question before us. In our view of the case, we hold that, by the document relied upon, an absolute gift was, in so many terms, made to Rani Dhan Kunwar of the properties in question; that she enjoyed those properties under the gift; that it was whilst she was in enjoyment of such properties that she alienated a part of them; and that as the gift itself was not, in so many terms, or even indirectly, fettered by any restrictions, so it was a gift which entitled her to alienate the estates to the defendants, appellants before us. In this view of the case, we reverse the decision of the Court below, and dismiss the plaintiff's suit with costs in both the Courts. Appeals, Nos. 237, 239, 245, 247, 255, 257, 259, 260, 264, and 273 are admittedly governed by the decision in this case; therefore, in those cases also we reverse the judgment of the Court below, and dismiss the plaintiffs' suits with costs of both the Courts. [APPELLATE CRIMINAL]. Before Mr. Justice Bayley and Mr. Justice Markby. THE QUEEN v. RAM CHANDRA MOOKERJEE.* Act XXV of 1861, s. 62-Nuisance, Removal of Power of Magistrate. Under section 62 of the Code of Criminal Procedure, a Magistrate has no power to issue an order, ex parte, to cut down trees, on the representation of a party, supported by the report of the Police that the existence of the trees was a nuisance. THE following reference was made by the Judge of the 24-Pergunnas, under section 434 of the Criminal Procedure Code: Reference under Section 434, Act XXV of 1861, from the Sessions Judge of 24-Pergunnas, by his letter No. 57, dated the 30th April 1870. 1870 May 14. 1870 QUEEN V. MOOKERJEE. "I have the honor to submit the papers of a case in which Baboo Sama Charan Chatterjee, the Deputy Magistrate at RAM CHANDRA Bashirhat, has sentenced one Ram Chandra Mookerjee to a fine of rupees 25, or simple imprisonment for one month, for disobeying an order issued under section 62 of the Criminal Procedure Code. I cannot interfere with the sentence, as the Deputy Magistrate has full powers; but in my opinion the order should be set aside. "It appears from the record of the case, that, on the 4th December last, Utam Chandra Chatterjee complained to the Deputy Magistrate that some clumps of bamboos growing close to his house produced sickness by stopping ventilation, and were likely to cause injury to the house. The owner of the bamboos was Ram Chandra Mookerjee, and the petitioner produced a copy of an order passed by the Deputy Magistrate, in September 1866, by which Ram Chandra was desired to remove certain bamboos, growing near the house of the petitioner. On receipt of this petition, the Deputy Magistrate desired the Police to examine the spot, and report the facts. "On the following day the Police reported that the bamboos ought to be removed for police as well as for sanitary purposes; and suggested that the owner might be directed to remove them, receiving compensation from Utam Chandra Chatterjee. "On the 10th January, the Deputy Magistrate issued an order, purporting to be an order under section 62 of the Criminal Procedure Code, directing Ram Chandra to remove the bamboos within a month; and threatening him with punishment in case of disobedience. "On the 28th January, Dinabandhu, the son of Ram Chandra, presented a petition on the part of his father, stated to be sick, in which he prayed that the Deputy Magistrate would visit the spot, and ascertain from personal inspection whether Utam Chandra had any reasonable ground of complaint. The order on this petition is, that the Deputy Magistrate had already visited the spot, and that a second inspection was unnecessary. "On the 11th February, the Deputy Magistrate held a proceeding, in which setting forth the order issued a month previously under section 62, and observing that it had not been obeyed, he directed that a charge should be preferred against Ram Chandra under section 188 of the Penal Code. 1870 QUEEN v. MOOKERJEE, "On the 4th February, that is six days before the date of this RAM CHANDRA proceeding, Dinabandhu had asked for the appointment of arbitrators, and the Deputy Magistrate, observing that the case could not legally be submitted to a jury, yet allowed him as a favour to name jurors. On the 14th he did name jurors, but it does not appear that any jury was appointed; and on the 7th and 16th March, the Deputy Magistrate recorded evidence on the charge under section 188, and on the 23rd March passed sentence. "The Deputy Magistrate had no legal power to order the removal of the bamboos, and therefore he had no power to punish Ram Chandra for disobedience to it. It may be that the bamboos amount to a public nuisance, for I am satisfied that bamboos do injuriously affect the atmosphere under certain circumstances; but it is evident from the order of the 4th February, that the Deputy Magistrate did not consider them to come within the provisions of Chapter XX of the Criminal Procedure Code. On the case, as it appears from this record, the Deputy Magistrate, when he issued the order under section 62, could not have been satisfied that Utam Chandra had reasonable ground for asking for the removal of the bamboos; and might have left it to Utam Chandra to remove his own house, if he found the situation unhealthy. If one man erects a building which intercepts light and air from the dwelling of another, the latter has his remedy in the Civil Court, and not under section 62. Section 62 is a wide and dangerous provision of the law; necessary it may be, but requiring to be watched, that it may not become an engine of oppression. It appears to me that the proceedings of the Deputy Magistrate in this case have been arbitrary and unjust, and I recommend that they be set aside ab initio." The following was the opinion of the High Court: MARKBY, J.--In this case the Deputy Magistrate, having the full powers of a Magistrate, directed one Ram Chandra to cause 1870 QUEEN บ. MOOKERJEE. the removal of certain bamboos, because (as we gather), in the opinion of the Deputy Magistrate, they were injurious to the RAM CHANDRA health of a neighbour who had complained to the Deputy Magistrate. The bamboos were growing on Ram Chandra's own land. Some attempt was subsequently made to induce the Deputy Magistrate to proceed, not under section 62, but under section 308, and to appoint a jury. It is not very clear what steps the Deputy Magistrate took upon that application, but a jury was, in fact, never appointed. Subsequently, the bamboos not having been removed, proceedings for disobedience to the order of the Deputy Magistrate were taken against Ram Chandra, and he was sentenced to pay a fine of rupees 25. The case has been sent up to us by the Sessions Judge for consideration, with a view to its being set aside. The operation of section 62 has already been greatly restricted by the construction which this Court has put upon it in the case of In the matter of Hari Mohan Malo v. Jai Krishna Mookerjee (1). It was there held that, in any of the cases specified in section 308, the Magistrate had no discretion, but was bound to follow the more special directions of that section, which gave to the owner of the property an opportunity of showing cause before it can be removed or affected. The case before us is not one of those specified in section 308; this decision, therefore, does not apply. It is impossible, however, to suppose that the Legislature intended to give to a Magistrate summary power to issue, without hearing the party concerned, an order such as that issued in this case, by which a man's property would be greatly injured, and could not be restored to its original condition, should it afterwards turn out that the Magistrate was wrongly informed, or that he had acted under a wrong impression. We think that the Magistrate has no power, under section 62, to issue any order which is by its very nature irrevocable. All that he has power to compel the owner of property to do is "to take certain order" with it. That does not appear to us to extend to an order to cut down a large quantity of trees. (1) 1 B. L. R., A. Cr., 20. |