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CHAPTER XXIII.

OF ATTEMPTS TO COMMIT OFFENCES.

ment.

511. Whoever attempts to commit an offence punishable by Punish. this Code with transportation or imprisonment, or to cause

ment for

attempting such an offence to be committed ', and in such attempt ? does to commit

offences any act towards the commission of the offence 3, shall, where

punishno express provision is made by this Code for the punishment able with

transportaof such attempt, be punished with transportation or imprison- tion or ment of any description provided for the offence, for a term of

imprisontransportation or imprisonment which may extend to one-half of the longest term provided for that offence 4, or with such fine as is provided for the offence, or with both 5.

Illustrations. (a) A makes an attempt to steal some jewels by breaking open a box, and finds after so opening the box that there is no jewel in it. He has done an act towards the commission of theft, and therefore is guilty under this section.

(6) A makes an attempt to pick the pocket of 2 by thrusting his hand into Z's pocket. A fails in the attempt in consequence of Z's having nothing in his pocket. A is guilty under this section.

secs. 299 and 300, 4 Bom. H. C., Cr.

Ca. 17.

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P. 46.

This leaves untouched attempts to commit, or to cause to be committed, two classes of offences, (1) offences under special or local laws which are not also offences under the Code, and (2) offences under the following sections of the Code, viz. 137, 154, 155, 156, 278, 283, 290, 294 A.

3 Ben. App. Cr. 57: 4 N. W. There

may be an attempt under this section which does not come within sec. 307. Thus, when a presented an uncapped gun at 2 (believing it to be capped) with the intention of murdering 2, but was prevented from pulling the trigger, he might be convicted upon a charge of simple attempt to commit murder framed under sec. 511 in connexion with

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Accordingly the maximum term of imprisonment for an attempt at rape (sec. 376) is five years' rigorous imprisonment, 1 Ben. App. Cr. 6. That transportation for life must be reckoned as equivalent to transportation for twenty years, see sec. 57.

As to attempts to commit rape see 5 Bom. 403, where the Court (following Reg. v. Lloyd, 7 Car. & Payne, 318) held that a man should not be convicted of such an attempt unless his conduct indicated a determination to gratify his passions at all events and in spite of all resistance.

See further as to Attempt, supra, pp. 67-70.

INTRODUCTION TO THE SUCCESSION ACT.

The Indian Succession Act (X of 1865) is the first part of the body of substantive law framed for India by the Commissioners appointed by Her Majesty for that purpose. It deals with the most important of all universal successions '-the passage of the rights and liabilities of a deceased person to his heirs—and it comprises the law of succession to an intestate generally applicable to all classes domiciled in British India, other than the Hindús, Muhammadans, Buddhists and Pársís, each of which portions of the population has laws of its own on the subject. It also regulates testamentary succession to Europeans, East Indians, Jews", Armenians , Pársís", and Native Christians domiciled in British India, and large portions of it have been since 1 Sept. 1870 applied to the wills of Hindús, Jainas, Sikhs and Buddhists in the Lower Provinces of Bengal and the towns of Madras and Bombay, or relating to immovable property situate in those Provinces or towns. In preparing the Succession Act, the law of England has been the two

chiefdeviaused as a basis; but the Commissioners deviated from that law

tions from in some instances, of which the following are the principal: English

First, the distinction between the devolution of moveable and law. that of immoveable property is abolished. All rights, as under

" It has been thought that two koon, 1 Sevestre, 159: the deed-poll other forms of universal succession are executed in favour of the Armenians recognised by the law of British by the E. I. Company, Morton, 2nd ed. India, viz., confiscation to the State 37: Gregory v. Cochrane, 8 Moo. I. (Penal Code, ss. 62, 121, 122), and A, Ca. 275: Sarkies v. Prosonomoyee, the succession of a trustee or assignee in insolvency to the rights and liabili- • Modee Kaikoodrow Hormusjee v. ties of the insolvent. In the former Cooverbhaee, 6 Moo. I. A. Ca. 448. case, however, the State does not As to the law of husband and wife, see apparently incur the criminal's liabili- Mihirwanjee Nuosherwanjee v. Awan ties, and in the latter the trustee or Baee, 2 Borr. Bom. Rep. 209. assignee only pays debts to the extent 5 Abraham v. Abraham, 9 Moo. of the assets.

I. A. Ca. 195. The discretionary * As to the law relating to Jews, power of retaining the Native law of see Solomon Hayum Musleah v. succession possessed (according to this Ezra Ezechiel Musleah, i Boulpois, decision) by Native converts to Chris234: Musleahy. Musleah, Fulton, 420. tianity and their Christian descend.

* See Aratoon v. Aratoon, 7 S. D. A. ants appears to be done away with by 538 : Stephen v. Hume, Fulton, 420 : the Succession Act, except of course Phanus Johannes, Morton, 2nd ed. 16:

where the Act has been made in. Aratoon v. Johannes, ibid. 19: Emin applicable to such persons. v. Emin, ibid. 242 : Beglar v. Dish.

6 Cal. 794.

the Roman and French · law, devolve ab intestato agreeably to a uniform and coherent scheme. And we thus get rid of the needless distinction between realty and personalty which, as Austin observed, is one prolific source of the intricacy of the system of the law of England.

Secondly, after the 1st January, 1866, no person acquires by marriage any interest in the property of the person whom he or she marries. This abolishes the husband's right to his wife's personalty, his interest in her realty, as tenant by the courtesy, and the wife's right to her husband's land as tenant by dower?. As to her property, it has the effect of a settlement of it to her separate use without restraint on anticipation; and it makes other important changes in the common-law rights, liabilities and disabilities arising out of the relation of husband and wife. Thus, first, as to the effect of marriage on the previous acts and agreements of either party, though it continues to revoke the maker's will", a spinster's submission to arbitration will not be revoked by her marriage before the award; the marriage of a spinster partner will not operate as a dissolution of a partnership at will; and, when a man marries his creditor, the debt will not thereby be released. Then, as the unity of persons

between husband and wife is abolished by sec. 4: when during coverture an estate is conveyed or devised to husband and wife, they will take as joint tenants with equal undivided shares, and each can alienate his or her own moiety in his or her lifetime. At common-law, in such a case, they would take by entireties, and the husband may do what he likes with the rents and profits during coverture. Furthermore, the husband is no longer able, by his indorsement alone, to pass his wife's negotiable instruments", nor can he release or assign her choses in action. Again, as under the Succession Act the husband of an executrix or administratrix is not entitled to administer in his wife's right, he has no power of disposition over the property vested in her as such; and he cannot release debts owing to the estate of the testator or intestate. The only way, then, in which a husband to whom the Succession Act applies becomes, by operation of law, entitled to his wife's estate is as her administrator under sec. 205.

1 La loi ne considère ni la nature ni Except when made under a power l'origine des biens pour en régler la in the case mentioned in sec. 36, infra succession ;' Code Civil, art. 732 (this * i.e. each of them is seised of the had been the law of the 17 nivôse, an whole estate, and neither of a part, and II).

the survivor is entitled to the whole. 3 The Dower Act, 3 & 4 Wm. IV, c. : As to a wife's liability on ber 105, was extended to India by Act promissory note made during coverXXIX of 1839.

ture, see 8 Beng. 372.

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Following the example set by the framers of the Penal Code, Ilustrathe Commissioners have made copious use of illustrations (mostly

tions. taken from the English Equity reports ?), which are not merely examples of the law in operation, but the law itself, showing by examples what it is.' These, as most Indian lawyers admit, have obviated many questions of construction and done much to fix the sense of the law. They certainly get rid of the objections which might justly be made to a Code composed exclusively of abstract propositions. As the Commissioners observe :

The operation of judicial decisions in making law precise is a natural process, and that process is adopted and improved in the use of illustrations. The laws of England, as they exist, are to be found partly in rules and principles, some of which are contained in statutes and some in books not stamped with any legislative or even judicial authority, and partly in the reports of decisions by judicial tribunals. Law framed in the way in which we have endeavoured to frame it also consists of rules and principles combined with decided cases, but with this difference, that the decisions are not made by Judges in trying causes, but by the legislature itself in enacting the law; and though they are an important part of the law, settling points which without them would have been left to be determined by the Judges, yet they are strictly confined to the function of guiding the Judges in their future decisions, and of explaining in what manner the definitions and rules to which they are annexed are to be interpreted and applied.'

The Act contains forty-one chapters (improperly called Parts), Division of which, for the purpose of this Introduction, may be regarded as the subject. falling into seven divisions : I. Preliminary, II. Marriage and Domicile, III. Intestate Succession, IV. Testamentary Succession, V. Executors and Administrators, VI. Legacies, and, VII. Donations

mortis causa.

I. PRELIMINARY. The first, or preliminary, division contains the Short Title (sec. 1); an interpretation clause (sec. 3); and a declaration (sec. 2) that, 'except as provided by this Act' (i.e. by secs. 331, 332), 'or by any other law for the time being in force,' the rules contained in it shall constitute the law of British India applicable to all cases of intestate or testamentary succession. This, it has been

The sources of inost of these illus- in Henderson's The Law of Intestate trations are mentioned in The Indian and Testamentary Succession in India, Succession Act, 1865, with. a com. Calcutta, 1882. mentary, by W. S., Calcutta, 1865, and

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