1. The question referred to this Bench is really whether the decision of the Chief Justice and Mr. Justice Lindsay, in Bishanath v. Bharosa Mis Case No. 634 of 1925 decided on 26th November 1925 is right. The point of law, or rather of interpretation, arises under Section 9 of the Bundelkhand Land Alienation Act. In this case a suit has been brought by a mortgagee of an agricultural tribe, against a mortgagor of the same tribe, that is to say it is a mortgage which is not within the mischief of Section 6. Section 6 forbids a mortgage between a member of an agricultural tribe, where the mortgagee is not a member of the same tribe, or where the mortgagor and mortgagee are not both members of the agricultural tribe, unless it; is in one of the forms prescribed by that section. Section 9(3) provides for the jurisdiction of the Collector in a case of a suit instituted in any civil Court on a mortgage to which Sub-section 1 of Section 9 applies. Sub-section 1 of Section 9 applies to a mortgage made after the commencement of the Act by a member of an agricultural tribe in any manner or form not permitted by or under the Act. Section 6 and Section 10 substantially contain all the matters which are not permitted under the Act. There is nothing in the Act which does not permit an ordinary simple mortgage. The enactment is a prohibitive one, and unless the matter, about which the dispute arises can be shown to be within the prohibition, the prohibition does not apply.
2. In my judgment the matter is quite clear, and the view taken by the Chief Justice and Mr. Justice Lindsay was correct. I would only add two observations. It admitted that the policy of the Act is to keep out, what may be colloquially called outsiders. The interpretation contended for by the plaintiff is to my mind inconsistent with the policy of the Act, and would be difficult to adopt even if there were language in the Act which justified that view. Sections 3, 6, 7, 11 and 15 all indicate that the plan of the Act was to control contracts of attempted alienation, which would have the effect of placing immovable property permanently in the hands of persons not members of the agricultural tribe. It seems to me that the decision, with which I agree, is entirely in accordance with the general scheme of the Act.
3. The further observation which occurs to me is this: The Chief Justice has already dealt with it in the referring order. By reason of the prohibition against the sale under Section 16, which, as my brother Daniels, J., pointed out during the argument, applies equally to simple money decrees, the security cannot be sold.
4. Further it appears that in this case the claim for a simple money debt is barred by statute. We have nothing whatever to do with that. We have only to interpret the language as we find it without regard to the consequences. If there is, as the Chief Justice suggests, a casus omissus in the provisions of the Act, and it is the deliberate policy of the Legislature that no sale should be permitted, the effect would be to put the property to auction; it seems to me, after considering the matter for what it is worth that the difficulty can be got over and a remedy given to the mortgagee by providing for foreclosure in a case of a mortgage between two members of an agricultural tribe that might receive the attention of Government. In my opinion the answer to the reference is in the affirmative, namely that Section 9 does not apply.
5. I concur in the view that Section 9 of the Bundelkhand Land Alienation Act does not apply to a simple mortgage between members of the same agricultural tribe and in the reasoning of my brother Walsh. The words 'a mortgage in any manner form not permitted by or under this Act' in S, 9 can only refer to a mortgage which is contrary to and forbidden by the Act. The Act is not one permitting mortgages which would otherwise be illegal. It is a restrictive Act restricting in the case of members of an agricultural tribe the free right of contract which they would otherwise possess. Now Sections 6 to 8 carefully restrict the mortgages which can be made by a member of an agricultural tribe in favour of an outsider. They do not restrict the mortgages which he can make in favour of a member of the same tribe. Section 10 invalidates a stipulation by way of conditional sale whether in favour of a member of the tribe or of an outsider. There is nothing in the Act to forbid a mortgage such as that which we have to consider. Section 16 takes away the remedy for sale not only in the case of mortgage decrees but in the case of all decrees, and cannot be read as constituting the mortgage illegal. There is undoubtedly a hiatus in the Act which requires the attention of the Legislature, but our business is to interpret the Act as it stands.
6. I therefore agree in the answer proposed.
7. In this case the Additional Subordinate Judge of Banda has referred Suit No. 88 of 1924 for the opinion of this Court under Order 46.
8. The plaintiff sued on the basis of a simple mortgage deed executed after the Bundelkhand Land Alienation Act came into force. His right to a simple money decree was barred by limitation.
9. The Subordinate Judge found that the mortgage was enforceable and that ordinarily the plaintiff would be entitled to a decree for sale; but as both mortgagor and mortgages were members of the same agricultural tribe, he held that under Section 9(3) he could not pass a decree for sale and must refer the case under Section 9 of the Bundelkhand Land Alienation. Act to the Collector for action under Section 9 of the Act.
10. This involved the assumption by the Subordinate Judge that Section 9(1) of the Act was applicable to the case of a simple mortgage between members of the same tribe.
11. The Collector returned the case holding that he had no jurisdiction, and referred to the decision of a Bench of this Court in Bishnath v. Bharosa Mis Case No. 634 of 1925 decided on 26th November 1925.
12. The Subordinate Judge points out that as he, the Judge, reads the Act, if the Collector is right, the creditor has no remedy. He refers to the desirability of safeguarding the rights of such creditors. He remarks that it is the first time that these doubts have been raised and desires to have the proper procedure indicated by this Court.
13. He refers to the decision of a Bench of this Court In Jaswant Rao v. Kashinath Rao, Civil Revision No. 1 of 1924, decided on July 23, 1924, and reported in : AIR1925All253 .
14. The Bench before whom the reference came referred it to a Pull Bench.
15. After the case had been argued before us I took time to consider my judgment as I was not satisfied that on the one hand the Legislature had deliberately inflicted, for some wise reason apparent to it, but not apparent to me, grave hardship on all creditors in the predicament of the present plaintiff, nor, on the other hand, that the Legislature had omitted by oversight to make provision for cases that might so easily arise.
16. It appeared to me that further study of the Act with the scheme of which I was not familiar might disclose reasons within the Act itself justifying an interpretation which would enable us to do that justice which of course nobody had any doubt was contemplated by the Legislature. Only on failure to find ground within the Act for such interpretation could I feel that I was right in throwing on the Legislature the responsibility for the otherwise inevitable injustice. It was for the purpose of thus examining the Act that, as I appreciate the referring order, the case was referred to a Full Bench.
17. Our attention is drawn by the order of reference to the Full Bench to the high rate of interest that is however a matter with which the Collector could and would certainly deal under Section 9(1), if he has the power under Section 9(1) to act at all, and he is the best person to deal with such a matter in the light of local conditions, and if he has no such power the trial Court must deal with it if it has the power to pass a decree. We cannot do so at this stage.
18. Two questions arise:
(1) Is there ground in the Act for believing that the Legislature intended to include in the Act mortgages between members of the same tribe, and, as on that basis Section 10 will be undoubtedly applicable to forbid a sale of the property under a decree or order of the civil Court, has the Collector power under Section 9(1) to re-model the mortgage so as to secure to the mortgagee his money?
(2) Is there ground in the Act for believing that the Legislature intended mortgages between members to be wholly outside the scope of the Act, and is the exclusion of such mortgages from the operative effect of S, 16 a justifiable interpretation?
19. The Legislature must have had one intention or the other, and, as I conceive it, it is our duty to apply, if there is any ambiguity, one or the other of such interpretations as will carry out what at least must have been the certain intention of the Legislature, not to deprive violently the member-mortgagee of more at any rate, of his rights then may be inevitable in securing the object of the Act, the protection of the improvident member borrower.
20. That there is such ambiguity in the effect of the Act is beyond doubt, since the first of the two interpretations above set out has been acted on for 20 years, and by this Court, and a third has recently been given effect to in Bishnath v. Bharosa Mis Case No. 634 of 1925 decided on 26th November 1925, and is as I understand, approved by my brothers Mr. Justice Walsh and Mr. Justice Daniels.
21. As to the first question.-Is there ground in the Act for believing that the Legislature intended to include in the Act mortgages between members of the same tribe, and, as on that basis Section 16 will be undoubtedly applicable to forbid a sale of the property under a decree or order of the civil Court, has the Collector power under Section 9(1) to re-model the mortgage so as to secure to the mortgagee his money
22. Section 6 specifies, first, certain parties to a mortgage and next, certain forms of mortgage. It first lays down that it has no application to where both the parties are members of the same tribe nor to where both parties, being members of different tribes, live in the district where the land is situate.
23. Where the parties do not come within either of these categories, that is where the mortgage is between a member and one who may be described as a stranger, 'the mortgage shall be made in one of the following forms:
24. The present mortgage is between members, and Section 6 has therefore primarily and standing by itself no bearing on the present case, though of course the whole or part of such section may have a bearing if such bearing is indicated by any other section.
25. Sections 7 and 8: Here we have certain conditions which are to attach, or may by agreement attach, when we have a mortgage made between a member and a stranger and made in one of the permitted forms. These two sections therefore appropriately begin by specifically stating they concern 'mortgages made under Section 6.'
26. Next comes Section 9 Clause (1) gives the Collector power to remodel the terms of a mortgage, if three conditions exist:
(a) If it has been made after the commencement of the Act.
(b) If it has been made by 'a member of an agricultural tribe;' and
(c) if the mortgage is 'in any manner or form not permitted by or under this Act.
27. It is contended for the defendant-mortgagor and I understand it to be the view accepted by my brothers Walsh, J. and Daniels, J., that the section only deals with mortgages which are made between parties who are controlled by Section 6 and whose mortgages are required to be made in a particular form, that is to say, which are made between a member and an outsider, and does not govern mortgages which are made between members.
28. It is clear, of course, that it does govern mortgages between a member and an outsider if the mortgages are not in one of the forms required by Section 6.
29. But is its scope limited to such mortgages only?
30. If it were so limited why the striking change in language from that employed in Section 7 and twice in Section 8? Why did the section not begin: In the case of mortgages governed by Section 6 made after the commencement of the Act but not in one of the forms prescribed, the Collector etc. that is the phraseology which must naturally have suggested itself to any draftsman who had just drafted Sections 7 and 8 and had them before him.
31. At the hearing I more then once invited an explanation of this striking change in phraseology. I heard none except the reference made by my brother Daniels, J., to Section 8(2) and Section 10, and a suggestion that those sections also dealt with cases of mortgages in 'form not permitted by the Act' and might account for the omission of any specific mention of Section 6. Section 8(2) is merely a corollary to the preceding provisions including those in Section 6 which call for a particular form. To Section 10 I will refer again presently; its existence seems to support the contrary proposition that Section 9(1) includes mortgages between members. But for the present purpose I only note that it would have been equally easy to say: 'In the case of mortgages governed by Section 6 or S, 10' or a mortgage contravening the provisions of Section 5 or Section 10 or 'a mortgage forbidden by Section 6 or Section 10.'
32. It might, of course, be that, whether or not an alternative phrasing was possible, that actually used equally limits the power of the Collector to remodelling mortgages governed by Section 6 but not in one of the forms prescribed. But that does not appear to be the case.
33. First, the words 'a member of an agricultural tribe makes a mortgage,' while they of course include a mortgage by a member to an outsider are equally inclusive of a mortgage by a member to a member. This is consistent with the wider scope of the section, though it is not, of course, by itself conclusive.
34. Again, such ambiguity, if the phrase is ambiguous and not deliberately used to cover all mortgages by a member, would have been avoided by the use of the phrase to be expected: 'In the of mortgages governed by Section 6.'
35. Next, the words 'in any manner or form not permitted by or under this Act.' The logical and only way of determining the value of this phrase is to ask ourselves: 'What are the manners or forms permitted by or under this Act?' and to put 'all other manners or forms' in the category of 'not permitted by or under this Act.' There is only one section which lays down 'forms permitted by the Act,' that is Section 6(read, of course, with Section 8), which says: 'The mortgage shall be made in one of the following forms.
36. The words 'in any manner or form' clearly in themselves carry no reference whatever to 'parties,' but relate merely to the form of the mortgage; and, as I have noted, the previous words 'a member of an agricultural tribe makes a mortgage' are clearly equally applicable whether the mortgagee is a member or an outsider.
37. Both phrases, taken separately and taken together, indicate that only two conditions are required to make the section applicable to a mortgage made after the commencement of the Act: one that the mortgagor be a member and secondly that the mortgage be not in one of the forms covered by Clauses (a) to (d) of Section 6 read with Section 8.
38. Finally, the action permitted to, not obligatory on, the Collector is in no way inconsistent with the view that the earlier part of the section includes in its scope mortgage between members. If the parties, both members, have included in their mortgage any objectionable terms, including a condition that may involve a sale of the land, he can remodel it on the lines laid down so that the mortgagee be not injured unfairly subject to the land being preserved.
39. I have mentioned above Mr. Justice Daniels' reference to Section 10 and that I would refer to it liter.
40. It was suggested that Section 10 was a case of a form of mortgage 'not permitted' by the Act, that a mortgage containing a condition intended to operate by way of conditional sale, is, as it stands, a mortgage 'not permitted by the Act' because the condition is to be null and void; and that such a mortgage would come within Section 9(1) and accounts for there being no opening specific reference to Section 6. This, in fact, actually supports the contention that Section 9(1) covers mortgages between members, for Section 10 expressly refers to 'any mortgage' cannot possibly be held to be limited to mortgages between a member and a stranger, and if such mortgages as are referred to in Section 10 are to be taken to be included within the scope of Section 9(1), what force can there be left in the suggestion that Section 9(1) deals only with mortgages between a stranger.
41. In this view the broad intention of the Act appearing from its provisions was to require mortgages between a member and a stranger absolutely to be in a particular form but that mortgages between members did not normally require such stringent restrictions; but even such mortgages might require control.
42. Section 9(1) therefore gave the Collector discretionary power to remodel all mortgages made after the commencement of the Act and Section 9(3) ordered the Court to send all such mortgages to him.
43. There was no proper right to be gained for a member of a tribe by making a simple mortgage given by him to another member waste paper so far as the security was concerned by depriving the mortgagee not only of his right to bring to sale but of his right to that sort of security arising out of the land which was being allowed to strangers.
44. The above considerations indicate that there is much ground to justify a finding that mortgages between members can, as the section has been drafted, be remodelled by the Collector under Section 9(1).
45. If in fact it is not clear beyond doubt that the above is the correct interpretation of Section 9(1), can it not at the very least be said that the effect of the section is open to doubt? And if that is so, ought we not give to it that interpretation which will not inflict hardship on anybody, an interpretation which has not been questioned for twenty years (till the decision in Bishanath v. Bharosa Mis Case No. 634 of 1925 decided on 26th November 1925 and more especially so where it may be that scores of persons have believed themselves to have entered into obligation and acquired rights on the faith of such interpretation evidenced by long and common practice.
46. Before turning to the second question I will make some observations on the two cases referred to by the Subordinate Judge, and also mention another case.
47. As to the case Jaswant Rao v. Kashi Nath Rao : AIR1925All253 more cannot be said then that the jurisdiction of the Collector to deal with the case under Section 9(1), and therefore of the civil Court to send the case to him under Section 9(3) was assumed to exist. As the learned Subordinate Judge remarks in this case, it had always for the past twenty years been understood to exist until the refusal by a Collector in 1925 led to the decision in Bishanath v. Bharosa Mis Case No. 634 of 1925 decided on 26th November 1925. But in fact I do not find anything in the report of this case to suggest that the mortgagee was a member of an agricultural tribe. If he was not, the case has not even the slight bearing on this case that it would otherwise have.
48. In Bishanath v. Bharosa Mis Case No. 634 of 1925 decided on 26th November 1925. the decree holder still had in fact left to him his right to a simple money decree, justice was secured for him and there was no serious hardship. It would seem that as there wa3 in that case a means ready to hand for the plaintiff-mortgagee to secure his money there was no necessity for any real contention.
49. A case which does support the applicability of Section 9(1), and which was not brought apparently to the notice of the learned Judges who decided Miscellaneous Case No. 634, doubtless because it had not then been reported, is Bishnath Singh v. Basdeo Singh : AIR1926All136 , decided as recently as 12th June 1925. Mr. Justice Kanhaiya Lal upheld both the findings of both the lower Courts that there was no reason why a case of a simple mortgage between members after the passing of the Act should not be sent to the Collector under Section 9(3) for action under Section 9(1) and even after a decree had been passed. In upholding this decision in a Letters Patent appeal the Bench held that:
We find it impossible to hold that the civil Court ceased to have jurisdiction to act under Section 9(8) as scon as a nominal decree was passed which cannot in fact be executed by sale.
50. I turn now to the second question: Is there ground in the Act for believing that the Legislature intended mortgages between members to be wholly outside the scope of the Act, and is the exclusion of such mortgages from the operative effect of Section 16 a justifiable interpretation?
51. The only direct and unambiguous reference in the whole Act operating on alienations between members of the same tribe is Section 3. There is another section, Section 10, to which I have already referred, on which the expression: 'any mortgage' occurs which is wide enough to include alienations between members, but there is no section which in specific terms refers to such alienations except Section 3. that section enacts that a permanent alienation between members of the same tribe or where both parties are member of agricultural tribes and both residents of the district in which the land is situated is unrestricted. There is no section at all specifically declaring temporary alienations between such parties to be unrestricted, but much the same purpose may be said to be effected by inference by Section 6. The specific provision in Section 3(1)(b) read with Section 3(1)(a) is apparently inserted only in order to prepare the ground for the next provision in Section 3(2) beginning: 'Except in the cases provided for in Sub-section (1) etc.'
52. These considerations indicate that there is good ground in the Act itself to justify a finding that the Act in no way deals with alienations, whether permanent or otherwise, between members of the same tribe.
53. If then that conclusion is justified it is, as I conceive it, our bounden duty to interpret Section 16 as having no bearing on such temporary alienations, so ruling not on the ground that the Legislature did cot mean to include such alienations but because the Act taken as a whole indicates that such alienations are not within its scope and the Act must be given effect to as a whole.
54. In my endeavour to interpret this Act I believe that I am guiding myself only by canons of interpretation that have been constantly approved.
55. Erle, C.J. said in Smurthwaite v. Wilkins (1862) 11 CBN S 842:
The consequences which this would lead to are so monstrous, so manifestly unjust that I should pause before I consented to adopt this construction of the Act of Parliament.
56. Jessel, M.R., said in Taylor v. Corporation of Oldham (1876) 4 Ch D 395.
Whatever I may think of the extraordinary results which are so caused, it is my duty to interpret Acts of Parliament as I find them. I must read them according to the ordinary rules of construction, that is, literally, unless there is something in the context or in the subject to prevent that reading.
57. Lord Wensley dale said in Becke v. Smith 6 LJEx 54:
It is a very useful rule of construction of a statute to adhere to the ordinary meaning of the words used and to the grammatical construction unless that is at variance with the intention of the legislature, to be collected from the statute itself in which case the language may be modified so as to avoid such inconvenience, but no further.
58. Beal (p. 307) quoting Lord Blackburn in River Wear Commissioners v. Adamson 2 AC 743. says:
The Court must in each case apply the admitted rules of interpretation to the case in hand, not deviating from the literal sense of the words without sufficient reason, or more then is justified, yet not adhering slavishly to them where to do so would obviously defeat the intention which may be collected from the whole statute.
59. The second interpretation would give effect to the opinion that even though Section 9(1) can be interpreted as covering mortgages between members, it is not the right interpretation of that section.
60. It is sufficiently obvious that both interpretations cannot represent exactly the intention of the Legislature that they are to some extent dissimilar in effect is to be expected where the one is arrived at upon a strictly literal interpretation of the actual words and the other upon a consideration of the intention of the Legislature and the actual scope of the Act as evidenced by its provisions. The former, while it would not permit the mortgagee to bring the land to sale, would give him security for his money; the latter would give him all his normal rights including the right to bring to sale; but either interpretation would secure him from grave injustice. I may personally feel sure from sources outside the Act as to which is the correct interpretation, but I am bound to be guided by considerations founded upon the Act itself.
61. Guided by the terms of the Act and finding interpretations which would not deprive the mortgagee in this case, and others in a similar situation, of his just rights, it would be my duty to give effect to one or the other of those interpretations. Had I to decide the matter I should be inclined, subject to any further argument that I might hear, to give preference to the second interpretation, if only on the ground that interpretation, justifiable in itself, would mean no interference with the rights of the mortgagee, and he is entitled to claim that there should be no interference unless the law clearly limits his rights.
62. I do not overlook the fact that in the event of the mortgagee in this case bringing the land to sale it might pass into the hands of a stranger not a member of an agricultural tribe; and that thus to hold that mortgages between members do not coma within the scope of the Act at all means in effect to hold that there is one case which the Legislature has overlooked when attempting to prevent land passing to a stranger. But where it is admitted on all sides, and the circumstances under which this case has come before a Full Bench prove, that the Act is defective in one respect or the other, I think that where a reasonable interpretation founded on the Act itself would save the mortgagee's just rights and only indicate that the Legislature had omitted by oversight to stop one channel by which land might get into the hands of a stranger, we ought to adopt that interpretation rather then adopt the view that the Legislature has by similar oversight done a positive and serious injustice.
63. The order of reference by the Division Bench requires us to say not only whether the construction placed upon the Act by the decision in Bishanath v. Bharosa Mis Case No. 634 of 1925 decided on 26th November 1925 was correct, but further,
to return to the Subordinate Judge an answer, which they (the Pull Bench) conceive to be proper in the circumstances, thus finally disposing of each case.
64. The order of reference by the learned Subordinate Judge to this Court asked for a direction as to 'what should be done' and asked this Court
to remove the doubt as to what should be the procedure which should be followed.
65. I would direct the trial Court to proceed under the ordinary law to a decree and, if necessary, to attachment and sale.
66. As I have the misfortune to differ from my learned brothers this judgment is of no value, but it was incumbent on me to give my reasons for being regretfully compelled to differ and for holding that we are not compelled by the Act to deny the plaintiff a remedy.
67. The order of the Court is that Section 9 of the Bundelkhand Land Alienation Act (Act II of 1903) does not apply to the facts of the cases referred to. Let the reference be returned with this answer.