MAHATI v. NILADHRO explained by what has been done under it, and the fact that the 1870 land has been allowed to descend from defendant's grandfather KARUNAKAR to his father, and from him to the defendant, shows that it was intended to be hereditary, although it contains no words to that CHOWDHRY. effect, and the Judge was wrong in laying any stress upon that omission. The principle that the absence of words importing the hereditary character of the tenure may be supplied by evidence of long and uninterrupted enjoyment, and of the descent of the tenure from father to son was laid down by the Privy Council in Baboo Gopal Lall Thakoor v. Teluckchunder Rai (1) and in Rajah Satyasaran Ghosal v. Mahesh Chandra Mitter (2). In both those cases the enjoyment had been much longer than in the present; but the word "istemrari" had not been used as it is here. That word shows an intention that the lease should be perpetual; and if it were so, the hereditary character would follow from it. In Mussamut Lakhu Kowar v. Roy Harikrishna Singh (3), it was held that the words "mokurrari" and "istemrari" in a potta must be taken in themselves to convey an hereditary right in perpetuity. The objection that the rent is not fixed, because there is a provision for a remission, is of no weight, nor can the plaintff, because there has been a new settlement, say that he is not bound by the potta. The new settlement has been made with. him as representing the holder under the former settlement, and he cannot take the benefit of that representation, without taking the burden also. He must, like any other heir, be bound by the acts of the ancestor from whom he derives the estate. But it was also objected that this potta was rendered null and void by Regulation XIV of 1812, section 3, and upon this point we took time to consider our judgment. By that Regulation it is provided that (section 2) "no zemindar or other proprietor "of land in the Ceded and Conquered Provinces shall grant leases "or fix the rent of any land tenure for a term exceeding ten years, or if the term of his own engagement with Government "be less than ten years, extending beyond such less term ;" (section 3)" any evasion of this prohibition by entering into separate 66 (1) 10 Moore's I. A., 191. (2) 2 B. L. R., P. C., 27. (3) 3 B. L. R., A. C., 226. 1870 KARUNAKAR NILADHRO 66 engagements or leases to take effect successively, or by dating an engagement or lease on a day other than that on which it was actually executed, or by any other device, shall be consi"dered as an infringement of it; and every lease or engagement "fixing the rent, which has been or shall be concluded or granted "in opposition to this prohibition, is declared to be null and void." Now it is a rule that the preamble of a Statute may be resorted to in restraint of the generality of the enacting clause, when it would be inconvenient if not restrained. The allowing the grantor of a potta at any time, no matter how long after it was granted, to avail himself of this Regulation to nullify his deliberate act is, we think, an inconvenience which justifies our resorting to the preamble of the Regulation. That says:-" Whereas it "is enacted by section 2, Regulation V of 1812, that proprietors "of lands shall be competent to grant leases for any period "which they may deem most convenient to themselves and ten"ants, and most conducive to the improvement of their estates; "and whereas Regulations IX and X of 1812 contain rules under "which the settlement which had been made in perpetuity in "the Ceded and Conquered Provinces, with the reserve of the "approval of the Honorable the Court of Directors, is subject "to considerable modifications and restrictions; and whereas "these rules consequently create a necessity for limiting the power granted by section 2, Regulation V of 1812, as above "noticed, the following rules have been enacted to be imme"diately in force in the Ceded and Conquered Provinces, includ"ing the territory ceded by His Highness the Peishwa in "Bundlecund, the District of Cuttack, and the pergunnas for"merly dependent on that district, but now annexed to the Zilla "of Midnapore." 66 The reason for making the Regulation is the necessity created by the rules in Regulations IX and X of 1812, and the term of ten years is fixed upon, as the settlement then in force was for ten years. When the period of the settlement had been extended, we find Regulation XIV of 1812 modified accordingly by Act XVI of 1842. The proper construction of the Regulation seems to be that the lease was to be null and void as against the Government, but not as against the lessor. Surnomoyee v. this principle, 1870 MAHATI v. NILADHRO CHOWDHRY. The decision of the Privy Council in Ranee Maharajah Sutteeschunder Roy (1) was upon this principle, KARUNAKAR and the case of the Statute of 1st Eliz., c. XIX, s. 5, referred to in the judgment, is closely applicable to the case now before us. The words of that statute are "shall be utterly "void and of none effect to all intents, constructions, and purposes;" and it was held that the "lease or grant is not void "or voidable by the Bishop himself who made it, but remains good against him during such time as he continues Bishop;" and the reason given is, "because such leases or grants were good at "the common law, and the statutes were made only for the "benefit of the successors, that they should not be bound by "those acts of their predecessors which might turn to their prejudice and disadvantage; but not to give the Bishop himself power to avoid or derogate from his own acts, which would be "against all rules, both of law and equity, and therefore was "not within the meaning of the said statutes; for then he would "be empowered by Act of Parliament to do wrong to other persons, which it cannot be presumed the Parliament intended "to allow"-Bacon's Abridgment, Title Leases and Terms for Years, H). 66 66 We are of opinion that the Judge was wrong in reversing the decision of the Deputy Collector who had held the potta to be valid, and that the Judge's decision must be reversed, and the respondent must pay the costs of this appeal, and of the appeal in the lower Appellate Court. (1) 10 Moore's I. A., 123. Judgment reversed. [FULL BENCH.] 1870 Aug. 23. Before Sir Richard Couch, Kt., Chief Justice, Mr. Justice Bayley, Mr. Justice THE QUEEN v. DHONA BHOOYA AND OTHERS.* (Criminal Procedure Code) Act VIII of 1869, ss. 445A, 445 C-Deputy Commissioner-Appeal. The right of appeal to the High Court given by section 445 C of the Criminal Procedure Code to persons convicted on a trial held by an officer invested with the power described in section 445 A, is confined to cases in which the officer has exercised that power. THIS case was referred to a Full Bench under the following orders by L. S. JACKSON, J.-This is an appeal against a conviction before the Deputy Commissioner of Singbhoom. The prisoners having been found guilty of committing house-trespass by night, in order to the commission of theft, under section 457 of the Indian Penal Code, were sentenced respectively to one year and two years' rigorous imprisonment; in the latter case, corporal punishment was superadded. The appeal of the prisoners has been transmitted to this Court apparently on the ground that the Deputy Commissioner is an officer invested with the powers conferred by section 445 A of the Code of Criminal Procedure amended by Act VIII of 1869. There is nothing upon the record that I can find to show, that the particular Deputy Commissioner is invested with the powers in question, but, assuming that he is so, it appears to me for more than one reason that the appeal does not lie to the High Court. In the first place, in deciding the case of the prisoners, the Deputy Commissioner does not appear to have exercised those powers at all. The case was referred to him by a subordinate Magistrate, under section 277 of the Code of Criminal Procedure, which directs that when a subordinate "Magistrate shall consider * Criminal Appeal, No. 488 of 1870, from an order passed by the Deputy Commissioner of Singbhoom, dated the 6th July 1870. "the offence established against the accused person to call for "a more severe punishment than he is competent to adjudge, he "shall record the finding and submit his proceedings to the Magistrate to whom he is subordinate, and such Magistrate "shall pass such sentence or order in the case as he may deem proper, and as shall be according to law." I apprehend, therefore, that this conviction was made by the Deputy Commissioner in the course of his ordinary jurisdiction and duties as a Magistrate, and that, accordingly, the appeal would lie to the Court of Session. 66 66 But, even if it appeared that he had, in dealing with this case, exercised the jurisdiction specified in section 445A, I should still think that the appeal would not lie to the High Court. Section 445B. provides that "such chief officer shall try as a "Court of Session, offences which, under the schedule hereto annexed, are triable by a Court of Session only, and in such "trials shall be guided by the rules contained in Chapter XXV "of this Code;" and immediately following that is the section 445C which declares that "any person convicted on a trial held "by any officer invested with the power described in section "445A may appeal to the High Court, and no appeal against "such conviction shall lie to the Court of Session." The result of these provisions is that two procedures are provided for an officer exercising the powers in question. One in respect of offences which are triable by a Court of Session only, and in respect of which offences he is required to try the accused as a Court of Session; but in regard to offences in which the Magistrate has concurrent jurisdiction with the Court of Session, apparently he has to try them as a Magistrate, but with the increased powers conferred by section 445A. I incline to think that the words "convicted on a trial" in section 445C, refer, if not to trials held by such officer as a Court of Session, at all events exclusively to cases in which he has exercised the powers conferred by section 445A; and that where he has not acted in the exercise of those powers, but merely in the exercise of his jurisdiction as a Magistrate, the appeal will lie as in the case of other Magistrates to the Court of Session. I am also of opinion that the word "trial" refers to the trials. 1870 QUEEN v. DHONA BHOOYA. |