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SING

v.

SHEWUKRAM, alias

RAI DURGA

PRASAD.

1870 clusive step to take towards transferring the property from himCHATTAR LAL self to some one else, viz., to Rani Dhan Kunwar, and so we cannot but conclude this petition is a document of a gift of some kind or other to the said Rani. Then what is the nature of the gift? The petitioner first recites the whole of his estates, real and personal, of whatever nature they were, and wherever they might be situated. It then recites that these estates are at the moment in the possession of the petitioner. It further recites that Kalika Prasad, the son of the petitioner, is dead; that certain others, who would have been heirs of the petitioner, are dead, leaving no issue; and that only Rani Dhan Kunwar, the widow of his late son, and her two childless daughters, are living. Having thus recited these particulars, the petitioner goes on to say :-" So I declare her (Rani Dhan Kun"war) my heir; and as with the exception of Rani Dhan "Kunwar I have no other heir or malik, nor can there be any, "and as life is uncertain," so the petitioner requests that the name of Rani Dhan Kunwar, widow of his late son, be registered in the Collectorate mutation book as proprietor and malguzar of his estates in the place of his name. If the petition had stopped there, we do not think that there could have been any doubt as to what was the meaning of the petitioner; but it is contended that the next passage in the petition not only creates a doubt as to the meaning of the first passage, but actually restricts the gift which was made in the first passage to Rani Dhan Kunwar. The words relied upon by the learned counsel, Mr. Paul, for the respondent, are these:-"Further, as of Rani Dhan "Kunwar, there are two daughters, who, after marriage, by the blessings of Providence, may be blessed with children; they "and their children, therefore, are and will be heirs and maliks. "But as long as I live, I shall keep the management of my house"hold affairs in my own hands, and look after all the transac"tions of dihat, &c., myself as heretofore." Upon the strength of this passage, Mr. Paul contends that the gift was to Rani Dhan Kunwar for her life only; and that on her death, it was to descend to her two daughters; and after their death, to their heir, viz., the present plaintiff.

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On the other hand, Baboo Anukul Chandra Mookerjee, for

SING

v.

SHEWUKRAM,

ans

RAI DURGA
PRASAD.

the appellants, contends that the last part of the document was 1870 nothing more than an expression at the best of the wishes and CHATTAR LAL intentions of the testator-wishes and intentions which it was in the power of Rani Dhan Kunwar, by the first part of the testamentary disposition, to defeat; and further, Baboo Anukul Chandra contends that, in truth, the passage is nothing more, upon a grammatical construction of it, and upon a comparison of it with its context, than an indication of who were the heirs, not of the testator, but of Rani Dhan Kunwar. If the testator had used words expressly declaring that Rani Dhan Kunwar's two daughters and children were and should be "his" heirs and maliks, some part of the difficulty of the sentence would have been explained; but the words literally translated are these " are and will be heirs and maliks," so that the testator does not in so many terms declare whether he was referring to those daughters and their possible issues as "his" heirs and maliks, or as Rani Dhan Kunwar's heirs. Neither, on the other hand, does he in so many terms speak of these persons as Rani Dhan Kunwar's heirs and maliks, so that the passage, taken by itself, cannot be interpreted in favor of or against either the one contending party or the other. But Baboo Anukul Chandra contends that, when the testator had, in so many terms, in the first part of the testament, said that Rani Dhan Kunwar was his heir, and that with the exception of the said Rani he had no other heir or malik, nor could he have any, then it is impossible to say, when he spoke immediately afterwards of the daughters of Rani Dhan Kunwar and any possible offspring of theirs, that he could have been supposed to be speaking of them as his heirs and maliks. It seems almost impossible to get over the difficulty thus presented. We had thought, when we first looked at the second sentence, that is the one on which Mr. Paul relies, that, as there must have been some intention in it, and as no other intention but the one for which Mr. Paul contended seemed to be obvious on the face of it, so the absolute gift of the first sentence must be held to be governed by what would then be the restriction in the second sentence; but, on further consideration, we think there exists in fact a good reason why the words should be there,

SING

บ.

SHEWUKRAM,
alias

RAI DURGA
PRASAD.

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 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

1870

SING

v.

SHEWUKRAM,
alias
RAI DURGA
PRASAD.

cases quoted to us on the one side, and on the other decisions 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.

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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

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