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P.W. 35 the wood stall keeper Tilakchand, who saw him on his way to pick up his victim, is definite that the appellant was not wear ing a coat at the time. Ratio |
It is difficult to see why he should have donned a coat and got it stained with blood just for murdering a child of five. Ratio |
In our opinion, it would be unsafe to conclude on this evidence that any connection is established between the coat and the sara and the appellant. Ratio |
The furthest point to which this evidence can be pushed is to indicate that the appellant possessed a coat similar to Article X but which was not Article X. Ratio |
We do not ordinarily interfere with a concurrent finding of fact but when the finding omits to notice these two very important points in the accused 's favour which, in our opinion, swing the balance the other way, we are unable to let the finding stand. Ratio |
In our opinion, the nexus between the appellant and the coat and the sara is not established. Ratio |
(7) Motive. Ratio |
This is the last piece of evidence on which the prosecution rely. Ratio |
Both courts hold that the motive is established and there is strong evidence to prove it. Ratio |
We accordingly accept the finding that the appellant had a motive for enmity against Tiwari and that he had expressed a determination to be revenged. Ratio |
The only comment we will make is that other persons who were also dismissed from service had similar motives. Ratio |
What then is the summary of the evidence ? In the appel lant 's favour there are the facts that there is no proof of his having been last seen in the company of 70 542 the deceased. Ratio |
The only evidence of the boy 's movements is that of Krishna (alias Billa) P.W. 9, a boy of seven years, and all he says is that Pritipal asked him to bring Ramesh with him to the Gurudwara that morning about 9 A.M. Ratio |
The boys played about and had some tea and then Pritipal took Ramesh away in the direction of the prostitute 's house. Ratio |
Pritipal later returned without Ramesh. Ratio |
The Sessions Judge thought this witness had been tutored on at least one point. Ratio |
Pritipal 's so called confession has been rejected because, in the first place, it is not a confession at all, for it is exculpatory, and, in the next, the High Court was not able to trust it. Ratio |
Therefore, the only evidence of the boy 's last movements is as above. Ratio |
The next point in the appellant 's favour is that he was seen without a coat shortly before the murder and at a time when he was not in the vicinity of his own house. Ratio |
According to the prosecution, the murderer wore the coat, Article X, and the sara, Article Y. The third point is that the appellant was not seen by anyone in the vicinity of the place of occurrence. Ratio |
The fourth point is that if the prosecution case is true, then it is remarkable that no one saw the appellant and the boy on a cycle through nearly a mile of what the High Court, which made a spot inspection, describes as a crowded locality. Ratio |
The points against the appellant are (1)that he had a motive and that he said he would be revenged, (2) that he was absent from the Gurudwara about the time of the murder long enough to enable him to commit it, and denied the fact, (3) that some twelve hours after the crime he assisted in removing the body from a place... |
In our opinion, it would be unsafe to convict of murder on these facts. Ratio |
543 A number of rulings were cited, including one of the Privy Council, and it was argued that in those cases persons were convicted of murder on similar facts. Ratio |
We do not intend to examine them because no decision can be a. guide on facts. Ratio |
Each case has its own special circumstances and must be decided on its own facts. Ratio |
For example, in most of the cases cited the accused was associated with the disposal of the body very soon after the occurrence and at the scene of the crime. Ratio |
Here, twelve hours had elapsed and the first connection proved with the disposal is at a place over half a mile distant from where the boy is said to have been murdered. Ratio |
Next, the points we have shown in favour of the appellant in this case were not present there. Ratio |
We allow the appeal on the charges of murder, conspiracy and kidnapping and reverse the findings and sentences on those charges and acquit the appellant of them. Ratio |
We however convict the appellant of an offence under section 201, Indian Penal Code, and sentence him to seven years ' rigorous imprisonment. RPC |
The learned Sessions Judge omitted to record a convic tion under section 201 because he was convicting the appel lant of murder. Ratio |
He followed a Nagpur decision which holds that in such a case it would be improper to convict in the alternative. Ratio |
We express no opinion about that; the question does not arise as we have acquitted the appellant of the murder and the cognate charges. Ratio |
The case now falls in line with that of the Privy Council in Begu vs The King Emperor(1) and the conviction and sentence are confined to section 201. Ratio |
(1) (1925) 52 I.A. 191. Ratio |
Appeal No. 167 of 1955. FAC |
section N. Kherdekar, N. K. Kherdekar and A. G. Ratna. FAC |
parkhi, for the appellant. FAC |
N. C. Chatterjee, section A. Sohni and Ganpat Rai, for respondent No. 1. 1960. FAC |
August 23. FAC |
The Judgment of the Court was delivered by KAPUR J. FAC |
This is an appeal by special leave against the judgment and decree of the High Court at Nagpur passed in second appeal No. 1720 of 1945 confirming the decree of the District Judge. FAC |
In the suit out of which this appeal has arisen the appellant was defendant No. 1 and the respondents were the plaintiff and defendant Nos. 2 and 3 and the dispute relates to pre emption on the ground of co occupancy which falls under Ch.XIV of the Berar Land Revenue Code, 1928, hereinafter called the Code. FAC |
On April 10, 1943, D. B. Ghaisas and his mother Ramabai entered into two contracts of sale with the appellant, one in regard to Survey Nos. 5, 14 and 16 for a sum of Rs. 10,000 out of which Rs. 2,000 was paid as earnest money and the other in regard to Survey No. 15/1 for Rs. 8,500 out of which Rs. 500 was paid as earn... |
On April 16, 1943, the vendors executed a registered sale deed in regard to Survey No,%.5, 14 and 16 and the balance of the price 32 250 was paid before the Registrar. FAC |
On April 22, 1943, the vendors executed a lease of Survey No. 15/1 for 14 years in favour of Kisanlal and Sitaram who were defendant Nos. 2 and 3 in the suit and are respondents Nos. 2 and 3 in this appeal. FAC |
On April 24, 1943, the vendors executed a fresh agreement of sale in respect of the same field which according to the agreement was to be diverted to non agricultural purposes and thereafter a sale deed was to be executed when it was so diverted. FAC |
The appellant was to pay the costs of the diversion as well as the premium. FAC |
In pursuance of this agreement the vendors applied to the Deputy Commissioner, Akola, on August 12, 1943, for diver sion under section 58 of the Code and sanction was accorded on January 22, 1944, subject to payment of premium of Rs. 9,222 and other conditions. FAC |
The appellant 's case is that as agreed the vendors were paid this money for deposit and it was deposited in the Treasury under Challan No. 68 but there is no finding in favour of the appellant although the trial court and the District Judge seem to have proceeded on the premises that this amount was deposited but in t... |
On September 11, 1943, i.e., before the sale deed was executed the respondent, Sridhar, brought a suit for pre emption against the appellant on the allegation that he had a co occupancy in the Survey number in dispute being the owner of Survey No. 15/2. FAC |
In the plaint it was alleged that the transaction of contract under the documents of April 10, 1943, and April 24, 1943, constituted a sale and therefore it was subject to respondent Sridhar 's prior right of pre emption. FAC |
It was also alleged that the price was not fixed in good faith. FAC |
These allegations were denied. FAC |
Both the trial court and the District Judge held that respondent Sridhar was entitled to preempt and determined the fair consideration to be Rs. 3,306. RLC |
The suit was therefore decreed by the trial court and on appeal by the District Judge. FAC |
The appellant took an appeal to the 251 High Court which also confirmed the decree of the subordinate courts. FAC |
The decree of the subordinate courts was Confirmed and against that judgment the appellant has come to this court in appeal by special leave. FAC |
The first question for decision is whether a right of pre emption had accrued to respondent Sridbar under the provisions of the Code. Ratio |
Previous to the cession of Berar by the Nizam of Hyderabad to the British Government in 1853, the Mohammedan rule of preemption was, according to one view, in force in the province of Berar and it continued to be so till the Berar Land Revenue Code of 1896 came into operation as from January 1, 1897. Ratio |
On the other hand, according to the view of two writers on the Berar Land Revenue Code of 1896, the Mohammedan law origin of the right of pre emption does not seem to be well founded. Ratio |
In the annotation of the Berar Land Revenue Code of 1896 Mr. E. section Reynolds wrote in 1896 that although the right of pre emption in regard to agricultural land on occupancy tenures bad been recognised in Berar the right was not based on Mohammedan law nor did it appear to be ancient and immemorial custom. Ratio |
According to Hirurkar (Land Revenue Code, pp.126 127) also the right of pre emption was not based on the Mohammedan law and did not originally exist in Berar. Ratio |
It 252 seems to have been brought from the land laws of the Punjab or the North West Provinces. Ratio |
In the Berar Settlement Rules and Berar Sub tenancy Rules of 1866 the right of pre emption attached to relinquishment of shares in the case of ryots of joint holdings and applied to co sharers and this is different from the rule of Mohammedan law. STA |
By section 205 of the Berar Land Revenue Code of 1896 the right of pre emption arose when a co occupant in any Survey number was transferred by sale, foreclosure of mortgage or relinquishment in favour of a specified person for valuable consideration and it vested in every other co occupant of the Survey number. STA |
It will thus be seen that the right of pre emption, which under Mohammedan law attaches to sales only, was also applicable to foreclosure of mortgages and relinquishment for valuable consideration. Ratio |
In the year 1907 the Transfer of Property Act (IV of 1882) was extended to the province of Berar. Ratio |
In 1928, the Code was re enacted and it further extended the provisions in regard to pre emption in Ch. Ratio |
Under section 174 pre emptive rights arise in respect of transfers of unalienated land held for agricultural purposes and before an occupant could transfer the whole or any portion of his interest he had to give notice of his intention to all other occupants. STA |
Under sections 176 to 178, the right of pre emption arises in the case of transfers by way of sale, usufructuary mortgages, by lease for a period exceeding fifteen years or in the case of final decrees for foreclosure in a case of mortgage by conditional sale. STA |
Under a. 183 every occupant in Survey number shall have the right to pre empt the interest transferred by civil suit. Ratio |
Under section 184 the right also arises in the case of an exchange. STA |
Thus it will be seen that the right of pre emption has been by statute extended far beyond what was contemplated under Mohammedan law and also beyond what was recognised in the Berar Settlement Rules, Berar Subtenancy Rules and in the Code of 1896. Ratio |
The High Court held that the word sale in section 176 of the Code had a wider connotation than what it had under section 54 of the Transfer of Property. Ratio |
That 253 was based on the judgment of Vivian Bose, J. (as he then was), in Jainarayan Ramgopal Marwadi vs Balwant Maroti Shingore (1) which had been approved in later judgments of that court. PRE |
It was also of the opinion that the transaction in dispute gave rise to the exercise of the right of pre emption under the rule laid down in Begum vs Mohammad Yakub (2) and as in the instant case there was in reality a sale although a registered sale deed had not been executed the right of pre emption could not be defe... |
According to section 2 of the Transfer of Property Act which at the relevant time was in operation in Berar section 54 is not one of the sections within ch. 2 of that Act and therefore it overrides Mohammedan law and the provisions of that section, being exhaustive as to modes of transfer, govern all sales in that prov... |
Sale is there defined as transfer of ownership for a price paid or promised or part paid or part promised and in the case of sale of tangible immoveable property of Rs. 100/ or more sale can only be made by a registered instrument. Ratio |
That is clear from the language of the section itself where it is stated : Section 54 Sale how made: " Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument ". STA |
It was held by the Privy Council in Immudipattam Thirugnana section O. Kondema Naik vs Peria Dorasami (3) which was a case of a zamindari estate that it could not be transferred except by a registered instrument. PRE |
But it was submitted that sale when used in connection with the general law of pre emption is not to be construed in the narrow sense in which it is used in the Transfer of Property Act and that that had been accepted by the Judicial Committee in Sitaram Bhaurao Deshmukh vs Jiaul Hasan Sirajul Khan(4) where (1) A.I.R. ... |
(3) (1900) 28 I.A. 46. Ratio |
(2) All. 344. Ratio |
(4) (1921) 48 I.A. 475. Ratio |
254 the observations of Sir John Edge, C. J., in Begum vs Mohammad Yakub (1) had been approved. Ratio |
In Sitaram Deshmukh 's case (2) one of the two Mohammedan co sharers in Bombay by an agreement dated October 14, 1908, agreed to sell his share to a Hindu. Ratio |
The agreement was expressly subject to a right 'in the co sharer to pre empt. Ratio |
The vendor informed his co sharer that he had sold his share and the latter thereupon, after the customary formalities on October 15, 1908, claimed to recover the share from the pur chaser. Ratio |
The sale deed was executed on November 9, 1908, and then a suit was filed by the pre emptor. Ratio |
It was held that the co sharer had the right to pre empt in accordance with the intention expressed by the parties to the sale and that intention was to be looked at to determine what system of law was to apply and what was to be taken to be the date of the sale with reference to which the formalities were performed. R... |
The question there really was as to what was to be taken as a sale sufficient to justify the pre emptor in proceeding at once to the ceremonies and it was in that connection that the following observation of Sir John Edge in Begum vs Mohammad Yakub (1) were quoted : " The Chief Justice, Sir John Edge, there observes, i... |
That at all events is in harmony with the conclusion come to by the High Court at Bombay. Ratio |
The conclusion is, that you are to look at the intention of the parties in determining what system of law was to be taken as applying and what was to be taken to be (1) All. 344.(2) (1921) 48 I.A. 475.255 the date of the sale with reference to which the ceremonies were performed " Ratio |
But it was argued for the respondents that the Privy Council had not only approved the observation of Sir John Edge, C. J., in Begum vs Mohammad Yakub(1) but has also approved the view of the Calcutta High Court in Jadu Lal Sahu vs Janki Koer (2). ARG |
That was a case from Bihar where the right of pre emption under Mohammedan Law was judicially recognised in regard to Hindus also. Ratio |
The question whether the sale which was to be preempted was the one under section 54 of the Transfer of Property Act or the one under the principles of Mohmmedan Law does not seem to have been the point raised in that case. Ratio |
In the latter case the kabala was on July 28, 1904 and the ceremonies were performed after that date. Ratio |
In the Allahabad case, Begum vs Mohammad Yakub (1), there was a verbal sale of a house which was followed by possession but there was no registered document. Ratio |
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