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Dasappa and anr. Vs. Jogiah and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 332 and 598 of 1962 and 593 of 1965 and Second Appeal Nos. 563, 564 and 565 o
Judge
Reported inAIR1965Kant54; AIR1965Mys54; ILR1964KAR545; (1964)1MysLJ254
ActsMysore Agriculturists Relief Act, 1928 - Sections 5; Central Evidence Act; Central Transfer of Property Act
AppellantDasappa and anr.
RespondentJogiah and ors.
Excerpt:
.....to the full bench in these cases relate to the effect as well as the validity of section 5 of the mysore agriculturists' relief act, 1928 (mysore act xviii of 1928). (2) one question referred by the common order of reference in the three revision petitions is the same as the first of the two questions referred by the common order of reference in the second appeals. ' (8) the portion of the section cited above, which is the subject of controversy before us, clearly sets out a certain period of time and also contains words necessary and sufficient to clearly locate that period. though the word 'period' may convey different meanings according to the context,-as for example an astronomical period meaning a round of time marked by recurrence of astronomical coincidences or an indefinite yet..........to the full bench in these cases relate to the effect as well as the validity of section 5 of the mysore agriculturists' relief act, 1928 (mysore act xviii of 1928).(2) one question referred by the common order of reference in the three revision petitions is the same as the first of the two questions referred by the common order of reference in the second appeals. the two questions are the following :-'i. whether the provisions of section 5 of the mysore agriculturists' relief act apply only to transactions which took place at any time within a period of six years before the act was extended to the local area concerned or whether those provisions are also applicable to transactions entered into subsequent to such extension? (2) whether the above provisions have ceased to be operative.....
Judgment:

Narayana Pai, J.

(1) The two questions referred to the Full Bench in these cases relate to the effect as well as the validity of Section 5 of the Mysore Agriculturists' Relief Act, 1928 (Mysore Act XVIII of 1928).

(2) One question referred by the common order of reference in the three Revision Petitions is the same as the first of the two questions referred by the common order of reference in the Second Appeals. The two questions are the following :-

'I. Whether the provisions of Section 5 of the Mysore Agriculturists' Relief Act apply only to transactions which took place at any time within a period of six years before the Act was extended to the local area concerned or whether those provisions are also applicable to transactions entered into subsequent to such extension?

(2) Whether the above provisions have ceased to be operative after the introduction of the Central Evidence Act and Central Transfer of Property Act to Mysore, as being contrary to the provisions of those enactments?'

(3) The 5th Section of the Act to which the questions relate reads as follows :

'Whenever it is alleged at any stage of any suit or proceeding to which an agriculturist is a party that any transaction in issue entered into, at any time within a period of six years before this Act is extended to the local area concerned, by such agriculturist or the person, if any, through whom he claims was a transaction of such a nature that the rights and liabilities of the parties thereunder are triable wholly or in part under the Chapter, the Court shall, notwithstanding anything contained in Section 92 of the Indian Evidence Act, 1872, or in any other law for the time being in force, have power to enquire into and determine the real nature of such transaction and decide such suit or proceeding in accordance with such determination and shall be at liberty, notwithstanding anything contained in any law as aforesaid, to admit evidence of any oral agreement or statement with a view to such determination and decision:

Provided that such agriculturist or the person, if any, through whom he claims was an agriculturist at the time of such transaction :

Provided also that, notwithstanding anything contained in the Code of Civil Procedure, 1908, or any other law for the time being in force, a suit for a mere declaration only of the real nature of the transaction shall lie, and that such declaration shall not affect the right to bring a subsequent suit for consequential relief in reference to such transaction.'

(4) The two competing views about the applicability of the provisions of Section 5 with reference to the date of transactions which are postulated in the first question have arisen as a result of two different interpretations sought to be placed on the portion of the section underlined by us reading--'any transaction in issue entered into, at any time within a period of six years before this Act is extended to the local area concerned.'

(5) According to one view, the transactions to which the provisions can be made applicable could only be those entered into before the date on which the Act is brought into force in the area concerned, but not earlier than six years before the Act or after the commencement of the Act can have or be given the benefit of the provisions of this section. The learned counsel contending for this view rely principally on the language employed in the section itself, incidentally pointing out that in cases where the statute intends to deal with matters for both before and after the Act, it has used clear and express terms to indicate such intention,--as for example, in Section 11, 12 and 13 of the Act.

(6) The other view is that though the provisions of the section do not apply to transactions entered into more than six years before the date of commencement of the Act in the area concerned, the applicability of those provisions is not restricted to transactions entered into before such date, but that those provisions will continue to apply to transactions entered into even after such date. The learned counsel contending for this view take up position that the expression indicating the date of transaction to which the section can be applied is intended merely to the limit the retrospective operation of the section to a period of six years before the commencement of the Act, without in any manner affecting or taking away what is described to be the undoubted prospective operation of the Act. They rely principally on the object of the statute indicated not merely by the long title and the preamble but also by the general scheme of the statute and argue that to take a first view and reject the second view would be to defeat the main or dominant purpose of the Act.

(7) Neither side, however, has sought to dispute the indisputable rule of interpretation of statutes that where the language employed in plain and unambiguous, full effect must be given to the language. Those contending for the first view have further relied upon the following observations of the Supreme Court in Nalinakhya Bysack v. Shyam Sunder Haldar, : [1953]4SCR533 :

'It is not competent to any Court to proceed upon the assumption that the Legislature has made a mistake. The Court must proceed on the footing that the Legislature intended what it has said. Even if there is some defect in the phraseology used by the Legislature, the Court cannot............... aid the Legislature's defective phrasing of an Act or add or amend or, by construction make up deficiencies which are left in the Act.'

(8) The portion of the section cited above, which is the subject of controversy before us, clearly sets out a certain period of time and also contains words necessary and sufficient to clearly locate that period. Though the word 'period' may convey different meanings according to the context,--as for example an astronomical period meaning a round of time marked by recurrence of astronomical coincidences or an indefinite yet identifiable portion of time, as for example, a period in the history of a nation described with reference to a particular historical event or a particular dynasty or ruling class exercising political power or a period in the life of a person like infancy, youth, adolescence, middle age, old age, etc., in the context of the section with which we are concerned, it undoubtedly means a definite portion of time. To complete the idea of definiteness of the portion of time it is necessary to give information sufficient to ascertain the length of that period and the two limiting points which stand at the commencement and the close of the period. The section, in our opinion, contains full information on all these aspects. It gives the length of the period to be six years, it indicates the closing point to be the date of commencement of the Act by using the word 'before' and it also indicates the commencement of that period to be a date exactly six years anterior to the date of commencement of the statute by using the word 'within'. 'Within a period of time' clearly means in a time no longer that that period, since the beginning thereof and before its expiration.

(9) The plain language employed in the section therefore is clearly in support of the first view propounded before us.

(10) It has, however, been argued that if regard be had for the main purpose of the statute, viz., that of relieving agricultural classes in the State of Mysore from indebtedness and for the known circumstances that one of the very common methods whereby such classes effect mortgages is by executing documents of ostensible sale and also for the fact that the section is clearly modeled on Section 10-A of the Dekkhan Agriculturists' Relief Act, the conclusion is inescapable that the statute intended to prevent persons like moneylenders taking the benefit of such documents for defeating the known intention of agriculturists executing those documents by relieving the latter of the fetters imposed by the Evidence Act in the matter of proving real nature of the transaction. On the other side, it has been argued that Section 10-A of the Dekkhan Agriculturists Relief Act which the Mysore Act copied in its 5th Section, makes no mention or applicability and that therefore the express limit placed by the Mysore Legislature on the 5th Section of the Mysore Act clearly indicates as intentional departure by the Mysore Legislature and that there is no alternative but to give effect to that intention. Some support for this point of view is also sought to be derived from the following facts:-The bill which ultimately became the Mysore Agriculturists' Relief Act was published on 17th November 1927. The Act received the assent of the Maharaja on 4-7-1928. It was not brought into force at once throughout the erst while State of Mysore; but Section I stated that it would extend only to such districts or parts of districts as may be, from time to time, notified by the State Government in the Official Gazette. By a notification dated 21-12-1928, the Act was brought into force with effect from 1-1-1929 in the taluks of Sagar Koppa and Manjarabad. By a subsequent notification dated 29-12-1933 the Act was brought in to force in the rest of the State with effect from 1-9-1934. The argument on the basis of these facts is that it was contemplated even at the time the Act was passed by the Legislature that it should be brought into force by stages and that it might take about six years to cover the entire State, and the period of six years fixed in Section 5 was intended to prevent dishonest creditors from taking steps to circumvent the provisions of the statute.

(11) It appears to us, however, that in view of the clear statement of law by the Supreme Court in the case cited above, it is not only unnecessary but actually wrong to speculate on what might or might not have been the reasons behind the specification of a period of six years in Section 5 of the Act, when as already pointed out by us, the plain grammatical meaning of the language employed leaves no room for doubt as to the express intention of the Act which is the only object of the enquiry by us.

(12) The last contention in support of the second view is that the Courts in the State of Mysore including the erstwhile High Court of Mysore have always proceeded on the basis that such was the meaning of the Section and that therefore on the principle of stare decisis, we should now take a different view. We find, however that there is no clear decision by the erstwhile High Court of Mysore, on the basis of which course can be had to the principle of stare decisis. Two cases have been cited in support of this position. One is that reported in Channe Gowda v. Mallappa, 25 Mys LJ I in which the provisions of the Section 5 were applied to a transaction entered into on 25-7-1938 after the coming into force of the Act. It is pointed out that though eminent counsel appeared in that case, neither side raised the present question and that both the counsel and the learned judges proceeded on the basis that the provisions of Section 5 were applicable to the transaction concerned in that case. The case is one reported in Rayappa v. Aswathanarayanappa, 53 Mys HCR 416. The learned Judges therein expressly stated that the provisions of Section 5 need be invoked only in cases where the nature of the transaction has been called in question, but that in a case like the one before them in which both sides were agreed as to the nature of the transaction, there was no scope for either invoking or applying the provisions of Section 5. Nevertheless, their Lordships did consider the effect of Section 5 arises in a suit, the section provides that retrospective operation thereof shall not extend to the transaction effected beyond six years prior to the date the Act was extended to the local area. Their Lordships have not expressed any opinion on the question whether Section 5 applies or should be applied to transaction entered into subsequent to the date of commencement of the statute in the area concerned. We do not find therefore any support for the argument on the principle of stare decisis. On the contrary, the only decision brought to our notice of this Court dealing with the point is an unreported judgment dated 14-8-1962 by one of us (Hegde, J.) in Second Appeal No. 92 of 1959 (Mys.), expressing an opinion in support of the first view.

(13) On the first question, therefore, we have to uphold the first view and reject the second view.

(14) The second question is said to arise in consequences of the extension of the Central Acts by virtue of and pursuant to the Part B States Laws Act of 1951 (Act I of 1951). By the amendment to the extent clauses of various Central Acts set out in the Schedule to the said Act, the Indian Evidence Act was extended to the Part B State of Mysore with effect from 1-4-1951. The amendment to the extent clause of the Indian Transfer of Property Act effected by the said Act, merely enabled the State of Mysore to extend the Transfer of Property Act to its territories (sic). It was so extended with effect from 1-10-1951 by a notification No. 2676-Cts-46-51-5 dated 12th September 1951. It may be mentioned that so early as on 27-7-1879, the Indian Evidence Act (Act I of 1872) has been introduced into the Princely State of Mysore by notification of the Chief Commissioner. Such introduction, however, it should be noted, did not have the effect of an extension of the Central Act itself propria vigore but that the Act was given the status of a piece of legislation made by the supreme legislative authority of the Princely State of Mysore. The said two Central Acts so extended to territories of the Part B State of Mysore were continued in force in those territories by Section 119 of the State Reorganisation Act.

(15) The second question as formulated, it will be noticed, suggests that the two Central Acts, viz., the Evidence Act and the Transfer of Property Act, on being extended to this State, had such an overriding effect as to render inoperative the provisions of Section 5 of the Mysore Agriculturists' Relief act to the extent they were inconsistent with the provisions of the Central Acts.

(16) Before dealing with the question of such inconsistency and the alleged legal effect thereof, Mr. Rangaraj contending for the position that the question should be answered in the affirmative made the following preliminary suggestion. According to him the expression in S. 5 of the Mysore Agriculturists' Relief Act reading--'Notwithstanding anything contained in Section 92 of the Indian Evidence Act, 1872 or in any of other law for the time being in force' could at the time the Agriculturists' Relief Act was passed by the Mysore Legislature refer only to laws or Acts in force in the Princely State of Mysore and to no other law. It is not possible to accept this suggestion. So far as the Indian Evidence Act is concerned, it is in terms referred to in Section 5 of the Agriculturists' Relief Act; although at the time it was so mentioned, the Evidence Act did not have the status of a Central Act but as an Act of the Mysore Legislature, the references to it in express terms would in our opinion, continue to be a reference to the said Act even when after the Part B States Laws Act the Central Act itself became operative in this State. Even otherwise, the expression 'any other law for the time being in force' is wide enough to comprehend every law including a law which might be brought into force subsequent to the date of Mysore Agriculturists' Relief Act.

(17) On the main question itself, there are two rulings which are against the contention of Mr. Rangaraj, viz., B.V. Patankar v. C.G. Sastry, : [1961]1SCR591 which had been reported long before the order of reference was made in these Cases and Smt. Byramma v. Appayappa, 1964 (I) Mys LJ 23 rendered on 1-10-1963, about two months after the order of reference.

(18) In the first mentioned case, the Supreme Court, dealing with a similar argument based on inconsistency between certain provisions of the Mysore House Rent and Accommodation Control Orders of 1945 and 1948 and of the Central Transfer of Property Act, repelled the contention that the Control Orders stood repealed by the extension to the State of the Central Transfer of Property Act, pointing out that the Control Orders were an existing law which was saved by Article 372 of the Constitution and retained unaffected by Article 254 of the Constitution. The same principle should apply to the Mysore Agriculturists' Relief Act, because it is also an existing law within the meaning of Clause (10) of the Article 366 of the Constitution saved by Article 372.

(19) In the second mentioned case, the Bench of this Court composed of Somnath Iyer and Gopivallabha Iyengar, JJ. dealt expressly the question whether Section 5 of the Mysore Agriculturists' Relief Act is void being repined to Section 92 of the Evidence Act, referred for the opinion of this Court under Section 113 of the Code of Civil Procedure by the Munsiff of Chickaballapur. Their Lordships held that the Mysore Agriculturists' Relief Act in its pith and substance is a law with respect to relief of agriculturists' indebtedness within the competence of the State Legislature, that the rule in Section 5 for the reception of oral evidence prohibited by Section 92 of the Evidence Act is only a part of the machinery created for the rehabilitation of agriculturists thus promoting the dominant purpose of the Act, and that therefore no question of any repugnancy between those provisions of the Evidence Act can be relied upon to invalidate Section 5 of the Mysore Agriculturists' Relief Act. Their Lordships answered the reference by stating that the said section is not void.

(20) Mr. Rangaraj, however, argued that he was not basing his contention on the doctrine of repugnancy referred to in Article 254 of the Constitution. He conceded that the Mysore Agriculturists' Relief Act is an existing law within the meaning of clause(10) of Article 366 and therefore saved by Article 372 of the Constitution. He however contended that the doctrine of pith and substance, which is the basis of the Bench decision cited above, could have relevancy only when the question of legislative competency is raised and not otherwise, and that his only argument was that when by virtue of the Part B States Laws Act of 1951, the Indian Evidence Act and the Indian Transfer of Property Act got extended to the State of Mysore, they must be regarded as pieces of subsequent parliamentary Legislation impliedly repealing the impugned provisions of Section 5 of the Mysore Agriculturists' Relief Act to the extent they were inconsistent with Section 92 of the Evidence Act and the proviso to Section 58(c) of the Transfer of Property Act.

(21) It is no doubt true that the doctrine of pith and substance is of peculiar and particular relevancy to a question of legislative competency. But we do not think that it is entirely out of place or should be ignored even for the purpose of examining the validity of the argument now addressed before us. It will be noticed that the basis of argument is an inconsistency or repugnancy between the provisions of the Mysore Agriculturists' Relief Act on the one hand and the Indian Transfer of Property Act on the other. If the inconsistency is to be regarded as arising out of the fact that the competing pieces of legislation are those enacted by two different Legislatures, inconsistency will be relevant only if it is shown that the impugned law is beyond the legislative competence of the Legislature which passed it ant trenches into the sphere allotted to the other Legislature. If, on the other hand, inconsistency is said to arise between the laws made by two Legislatures with respect to subject in the Concurrent List in respect of which both the Legislatures have competence, the first question to decide is whether repugnancy arises in respect of a matter which is enumerated in the Concurrent Legislative List. In either event, the purpose of first ascertaining whether the impugned piece of legislation is with respect to a subject enumerated in the list exclusively allotted to the Legislatures which made that law or in the Concurrent List. We do not see therefore any substance in the argument advanced on this basis.

(22) Even the theory of implied repeal is related to the proviso under clause(2) of the Article 254, because the contention is that both the Indian Evidence Act and the Indian Transfer of Property Act must be regarded as subsequent parliamentary legislations. But, as pointed out by the Supreme Court in Tika Ramji v. State of U.P., (S) : [1956]1SCR393 , the power of repeal conferred on the Parliament by that proviso is available only in respect of law of a State Legislature with respect to any matter enumerated in the Concurrent List which is repugnant to the provisions of an earlier law made by the Parliament but validly enacted by obtaining the assent of the President pursuant to clause (2) of Article 254. The Mysore Agriculturists Relief Act is not such a law. It is, already pointed out, an existing law saved by Article 372. Further, it is a law, which as held by the Bench of this Court, is in its pith and substance a law with respect to a matter exclusively within the competence of a State Legislature and not with respect to a matter enumerated in the Concurrent List.

(23)With reference to Section 58(c) of the Transfer of Property Act, Mr. Rangaraj has argued that the provision to the effect that a condition of repurchase must be found stated in the document of mortgage itself as required by the proviso to the clause must be regarded as an element or ingredient of the transaction of mortgage itself and that to the extent Section 5 of the Mysore Agriculturists' Relief Act disregards that ingredient, it must be held to confer a distinct and separate right on an agriculturist in contravention of the Transfer of Property Act. This suggestion is not, in our opinion, correct. The essential ingredients of a transaction of mortgage are a debt and transfer of interest in immovable property as security for that debt. The need for a document, the nature of the recitals, stamp, registration, etc., are all matters which bear upon the mode of executing a mortgage and cannot be regarded as essential ingredients of the transaction of mortgage itself. Further, the topic of transfer of property enumerated in the Concurrent List is exclusive of agricultural land. Apart from all these considerations, the theory of implied repeal cannot be availed of for the reasons already discussed by us, and the question must be held to be clearly concluded by the ruling of the Supreme Court in : [1961]1SCR591 already referred to.

(24) The answer to the second question should therefore be in the negative.

(25) Our answers, therefore, to the questions referred are as follows:

Question No. I. The provisions of Section 5 of the Mysore Agriculturists' Relief Act apply only to the transactions which took place at any time within a period of six years before the Act was extended to the local area concerned, and are not applicable to transactions entered into subsequent to such extension.

Question No. 2. The said provisions have not ceased to be operative after the introduction of the Central Evidence Act and the Central Transfer of Property to the State of Mysore.

(26) Answer accordingly.


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