1. I have had the advantage of reading the judgments of my two brothers and need therefore say little, except that I entirely agree with their conclusion.
2. As regards the first question whether the case is one which falls within the scope of Section 115, Civil P.C., in the Full Bench case, Raghubir Singh v. Mulchand : AIR1937All598 , Sulaiman C.J., took the view that where a Court decides a matter without reference to a section of the Act which is applicable to that matter, there is a material irregularity. The position in the present case is that if the Court below based its decision on the Regulation of 1798 then it must necessarily consider Section 5 of the regulation as well as Section 2. If it has come to a conclusion based upon Section 2 which could not have been reached if the existence of Section 5 had been recognised, then the Court below committed a material irregularity in the exercise of its jurisdiction. If, on the other hand the Regulation of 1798 was not applicable at all, then the position is that, whereas the trial Court decided the matter in accordance with law, the lower appellate Court has decided it in the light of nature and in disregard of the existing law on the subject. In so doing, it seems to me that the Court clearly acted with material irregularity. I am not impressed with the argument that the Court could not have acted with material irregularity when it followed the decision of one of the Judges of the Division Bench in Asharfi Lal v. Zamir Fatima Bibi : AIR1940All29 . That was a case in which the two Judges pronounced separate judgments and the learned Judge of the Court below should have observed that the other Judge did not base his conclusion on the Regulation of 1798 at all. It would follow that the remarks of Bennet J. must be obiter and the Judge could scarcely be bound to follow them in the particular circumstances.
3. As regards the question on the merits, I am in entire agreement with the view that Regulation. 1 of 1798 was not substantive law but purely adjective providing a procedure applicable to a particular type of cases. It was not, in any case, applicable to the mortgage by conditional sale effected by the document in suit and more-over on the enactment of the Transfer of Property Act this Regulation ceased to exist entirely. It was not a Regulation by virtue of which any rights came into existence which became vested in the persons for whose benefit it had been enacted. Under the document in suit a certain date was fixed on which the mortgagor must repay the amount of the mortgage. He could not do so before that date. It follows that that date would be the date from which the limitation of 60 years for the redemption of the mortgage would begin to run. As has been pointed out the date fixed was not fixed in an arbitrary fashion but because that was the date which would be convenient for the delivery of possession if the mortgagor were in a position to redeem.
4. In my judgment the application must be allowed and the decree of the Assistant Collector, first class, for redemption of the property in suit be restored with costs throughout.
5. I agree with my learned brother that the application in revision should be allowed, but I would in view of the importance of the question, like to add a few remarks of my own.
6. The first question is whether the claim is barred by limitation.
7. My learned brother, Mathur, has quoted in extenso from the deed. I agree with him that redemption before 22nd June 1880, was not possible. It is now settled law that the right of the, mortgagor to redeem and the right of the mortgagee to foreclose are co-extensive : vide Shiam Lal v. Jagamba Prasad : AIR1928All131 .
8. The learned Counsel for the opposite party contends that 'Ko' (on) means 'Tak' (by) inasmuch as he contends that there is no point in compelling the mortgagor to wait no to 22nd June 188p, and thus imposing a fetter on his right of redemption. Apart from the plain language of the deed, which does not countenance this line of argument, I am of opinion that there is nothing unnatural in such a term. June will invariably fall in the fallow season of the year. It will lead to complications if the mortgagor is allowed redemption at a time when the crops are standing. It may sometimes lead to unnecessary controversy. In Gokul Kalwar v. Chandar Sekhar : AIR1926All665 , Lindsay J. in delivering the judgment of the Court has made this point clear:
It is clear that this mortgage was one of those possessory mortgages in which the defendants were only liable to surrender possession if everything was done by the mortgagors to discharge the mortgage debt by Jeth Sndi Furanmsbi. In a mortgage of this kind the mortgagee can only be called upon to vaoate possession in favour of the mortgagors if all steps necessary to redemption have been taken so as to enable the mortgagee to vacate possession in the fallow season of Jeth. It follows, therefore, that if in one particular year the mortgagors fail to take all the necessary steps to obtain redemption in the fallow season, the mortgagee is entitled, under the terms of the mortgage, to remain in possession till the fallow season of the following year, and it could not, therefore, be said that where the plaintiffs have made default in taking proceedings for redemption in one year the mortgagee is, for the year which follows, in wrongful possession. On the contrary, 'he is in possession in strict accordance with the terms of the mortgage contract.'
9. The case is typical of the complications which generally arise in eases of redemption and has explained the raison d'etre of such transactions. The learned Counsel for the opposite party is, therefore, not right in saying that there is no point or purpose in a condition of this character.
10. The next question which falls for consideration is whether the application in revision is permissible? My learned brother has relied upon Raghubir Singh v. Mulchand : AIR1937All598 . I would like to notice a few Privy Council authorities on this point. In Umed Mal v. Chand Mal 13 A.I.R. 1926 P.C. 142, their Lordships of the Judicial Committee were called upon to discuss the scope of Section 115, Civil P.C. The facts briefly were these: One Mt. Fatima mortgaged a house to Umed Mai and others, who later sued upon the mortgage, obtained a decree, brought the property to sale and purchased it themselves. Subsequently, Umed Mai and others brought the present suit against the defendants, alleging that a certain plot of land appertained to the house had passed to them. The defendants denied this fact. Mt. Fatima was not impleaded in the suit The Subordinate Judge and, on appeal, the District Judge decreed the suit, holding that the disputed plot did appertain to the house and had passed to the plaintiffs under the sale in execution of the mortgage decree. On an application in revision, under Section 115, Civil P.C., the Chief Commissioner of Ajmer held that, on a Comparison of the boundaries with the description in the mortgage deed the plaintiffs had failed to prove that the disputed plot had been mortgaged to them and dismissed the suit. On appeal, their Lordships, at page 64, observe as follows:
But the real question is whether there was jurisdiction to get so far and review what in certain as peats at all events, was a decision on a question of fact. Their Lordships are of opinion that Section 115, Civil P.C., conferred such jurisdiction under the circumstances of this ease. They think that the respondent was entitled to apply for a review on the ground that the lower Courts acted in the exercise of their jurisdiction with material irregularity within the meaning of Section 115(c), Civil P.C. The suit was one in which the plaintiffs claim the bighas in dispute under a mortgage from Mt. Fatima. They asked for a declaration of title and for possession and justice required that they should have made Fatima a defendant. The main question was whether she had included the bighas in the mortgage deed. In their Lordships view it is far from clear that under the terms of the deed she did. There are suits of a class in which a decree of this kind might possibly be made in the absence of the mortgagor for what it is worth. But their Lordships are of opinion that the present is not a suit of such a class. The very question is whether Fatima ever conveyed the bigbas to the alleged mortgagees, and it was a material irregularity to decide it in the absence of Fatima herself. Under the circumstances, the Chief Commissioner had the power to make such order in the case as he thought fit. On consideration of the mortgage deed and the evidence he has held that the appellants, on whom as plaintiffs in ejectment the burden of proof lay, have failed to make out their title. Their Lordships agree with him in thinking that the suit ought to be dismissed. They agree, also, with his direction as to costs, but they think that the respondent is entitled to have the costs of this appeal. Accordingly, they will humbly advise His Majesty that this appeal should be dismissed with costs.
11. The main question before their Lordships was one of fact, whether the mortgage deed included the land in dispute? The findings of the Subordinate Judge and the District Judge were based not upon a reading of the mortgage deed, but upon surmises. The Chief Commissioner based his conclusions upon a consideration of the mortgage deed itself. Their Lordships affirmed the view of the Chief Commissioner. If exclusion from consideration of the most important document in the case was a mistake, within the meaning of Section 115, Civil P.C. exclusion from consideration of a most important provision of law must to my mind, be an irregularity or illegality within the meaning of that provision.
12. A question, though not similar in character, yet involving, on principle, the same consideration, arose in Atma Ram v. Beni Prasad 0049/1935 . The facts were briefly these : A suit was instituted by the Collector of Saharanpur under Section 55, U.P. Court of Wards Act on behalf of two ladies, Jaimala Kuer and Chando Kuer, the surviving widows of a man named Janeshwar Das, for possession against the defendants. The plaint was filed on 20th January 1932, and on 19th April the Collector applied that the case should be struck off as the Board of Revenue had sanctioned the withdrawal of the suit. On the same day, the widows made an application for substitution as plaintiffs and on 9th May the Collector filed his objections to the widows' application on the ground that they were debarred from suing under Section 55, Court of Wards Act. On the same day the widows joined one Beni Prasad, who claimed to be the nearest reversioner of their husband Janeshwar and his brother Badri, and entitled to succeed to their estates on the death of the widows. The Subordinate Judge accepted the Collector's application and rejected the application of the widows and of Beni Prasad. The widows applied in revision to the High Court and made Beni Prasad a party. Subsequently, on his application Beni Prasad was transposed in the array of the applicants. The High Court dismissed the application of the ladies, but allowed that of Beui Prasad. The defendants went in appeal to His Majesty in Council. Say their Lordships at page 1126:
On the merits of Beni Prasad's application, the learned Judges rightly pointed out that the suit tiled on behalf of the widows by the Collector was a representative one in which Beni Prasad as nearest reversioner, was interested and that a decree properly obtained against the widows would be binding on him as next reversioner. This was expressly ruled by this Board in Risa Singh v. BalwnatSingh 5 A.I.R. 1918 P.C. 87. On the other hand if the suit succeeded his right as the next reversioner of the plaintiffs' husband would be established. In these circumstances, in their Lordships' opinion, Beni Prasad had a right ex debito justitiae to be added as a plaintiff, and given an opportunity of continuing the suit if so advised. Their Lordships accordingly find themselves in agreement with the result of the judgment of the High Court on the merits of Beni Prasad's application.
13. In other words, their Lordships were moved by considerations of justice and expediency.
14. The Agriculturists' Relief Act was passed 'for the relief of agriculturists' and, as their Lordships of the Privy Council observe in Raghuraj Singh v. Hari Kishan Das , 'it is a remedial statute.'
15. Although their Lordships were considering a different set of circumstances, in plain words, it only means this : that a party entitled to its benefits should not be lightly deprived of them. It will amount, to my mind, to a negation of justice to hold that although a party has been denied by the Judge a benefit to which he is entitled under the Act, yet this Court will not intervene to redress an obvious wrong. The wrong was due not merely to ignoring but misreading' a provision of the law. This will certainly amount to material irregularity or illegality in the exercise of jurisdiction.
16. The learned Counsel for the applicant has also invited our attention to Abdul Noor v. Brij Mohan Saran : AIR1938All153 . At page 112 their Lordships observe:
The next question for consideration is whether the revision application made before us is competent. We have come to the conclusion that the applicant has made out a case for interference in revision. The Court below had jurisdiction to decide the question as to whether or not the applicant was entitled to claim a reduction of interest, It wrongly interpreted Section 30 and came to the conclusion that that relief could not be granted. It, therefore, acted with material irregularity and, therefore, this Court should interfere in revision. Under the provisions of the Act, the applicant was entitled as a matter of right to claim this relief and it was wrongly refused to him.
17. It is not necessary to go the whole length with their Lordships in this case. It will perhaps be straining the language of Section 115, Civil P.C., to hold that the wrong interpretation of a certain statute amounts in every case to be a material irregularity. It is, however, not necessary to express any opinion on this authority as the applicant is on surer grounds when he contends that the learned Judge has not only misunderstood, but ignored a most important provision of the law.
18. I, therefore, agree with my learned brother that this application in revision must be allowed.
19. This is an application in revision on behalf of the plaintiff, under Section 115, Civil P.C. The plaintiff-applicant instituted a suit under s 12, Agriculturists' Relief Act, on 17-6-1940, to redeem a mortgage dated 16-1-1879, executed by the predecessor-in-interest of the plaintiff in favour of the defendants opposite party. The suit was contested and the main defence was that the suit was barred by limitation as it was brought 60 years after the date of the execution of the mortgage, namely, 16-1-1879. The defendants relied on Section 2 of Regulation I of 1798, according to which a mortgage could be redeemed at any date after the date of its execution and therefore it was urged that the limitation started from that very date. The learned Assistant Collector who originally tried the suit, did not agree with this contention of the defendants and holding that the period of 60 years would run from 22-6-1880, which was the date fixed for the payment of money, came to the conclusion that the suit was not barred by time. The defendants appealed to the District Judge of Benares, who accepted the contention of the defendants and following the observations of Bennet J in 1939 ASHARFI LAL V. ZAMIR FATIMA BIBI : AIR1940All29 held that the suit was barred by time and dismissed the claim. It is contended in this revision application that the view expressed by Bennet J. in the case noted above was only an obiter dictum and was not sound as he did not take into consideration Section 5 of the same Regulation.
20. On behalf of the opposite party a preliminary objection has been taken by Mr Harnandan Prasad that application does not come within the scope of s 115, Civil P. C. It is no doubt true that the counsel for the applicant did not expressly mention in his grounds for revision that the learned District Judge had committed any material irregularity in exercise of his jurisdiction but that is what he now contends. A number of rulings have been cited on both the sides but I think the matter is covered by the Full Bench decision of this Court in Raghubir Singh v. Mulchand : AIR1937All598 . The following observations were made by Sulaiman C.J. who delivered the leading judgment:
It has been laid down by their Lordships of the Privy Council in several oases that where a Court below comes to an erroneous view of the law or decides a case erroneously, it does not act with material irregularity in the exercise of its jurisdiction, nor does it act without jurisdiction and that therefore the High Court has no power in revision at all. But where there is not merely a question of error of law or an erroneous decision, but there has been a material irregularity in the acting of the Court below, while exercising its jurisdiction, it is well settled that a High Court can interfere. In the present case there is not a question of and error of law made by the Court below, but it is a material irregularity in the exercise of jurisdiction because the Court did not at all apply its mind to the objection-raised by the applicant, which had been either conceded or at any rate not disputed on behalf of the decree-holder.
21. In the present case there can be no manner of doubt that the learned District Judge did not at all apply his mind to the provisions of Section 5 of Regulation I of 1798. Thus there was certainly a material irregularity in the exercise of its jurisdiction by the Court below and therefore a revision lies. I therefore, would decide this preliminary point against the opposite party.
22. Coming now to the merits of the case, it is evident that when the Transfer of Property Act (Act IV of 1882) was passed this Regulation I of 1798 was repealed and its provisions can No. longer be applied. Bennet J. in Asharfi Lal v. Zamir Fatima Bibi : AIR1940All29 , however, observed that as that Regulation, was in force when the mortgage under consideration was executed it would be governed by the Regulation. I respectfully be to disagree, as in nay judgment the Bengal Regulation I. of 1798 related only to the procedure which could not be followed after its repeal. If it were a substantive law and any rights had accrued under it the matter would have been different.
23. Assuming for a moment that Bengal Regulation of 1798 was still applicable, I am clearly of opinion that it was confined to a particular variety of mortgage by conditional sale which has been described in the preamble of the Said Regulation in the following manner:
It has been long a prevalent practice in the province of Behar to borrow money on the mortgage and conditional sale of landed property, under a stipulation that if the sum borrowed be not repaid (with or without interest) by a fixed period, the sale shall become absolute. This species of transfer has, in the above province been usually denominated bye-bilwaffa; and the same transaction is common in Bengal, under an instrument termed kut cubbaleh.
24. Suction 2 which lays down the procedure for redemption expressly refers to mortgages described in the preamble:
In all instances of the loan of money on bye-bilwafia, or on the conditional sale of landed property, as explained in the preamble to this regulation, however, denominated, the borrower....
25. It will be clear from the reading of the preamble and Section 2 that the procedure laid down in the Regulation applied to those mortgages alone in which it was provided that if the sum borrowed be not repaid by a fixed period the sale shall become absolute. In all those cases the mortgagor was required to redeem up to the time fixed for payment, and in default the sale was to become absolute. I do not think that Section 2 of the Regulation authorised the mortgagor to redeem at any time when a specific date was fixed for redemption as in the present case. With the greatest respect I would point out that the following remarks occurring in the judgment of Bennet J. do not correctly interpret the said Regulation:
The first reason is that there was a statutory right under the Bengal Regulations No. I of 1798 and No. XVII of 1806 which were in force in 1872 and this statutory right gave the mortgagors the right to redeem within any stipulated period provided in the deed. Therefore even if there had been only a period of two years in the deed, the statutory right executed by which the mortgagors could have redeemed from the date of execution and the suit would therefore be barred by the period of limitation in question under Section 148 of the present Limitation Act.
26. As I have already stated, Section 2 of the Regulation only applied to the mortgage described in the preamble, and a mortgage in which a specific date is fixed for payment was governed by Section 5 which lays down:
Nothing in this regulation-being intended to alter the terms of contract settled between the parties in the transaction to which it refers, the several provisions in it are to be construed accordingly.
27. It will thus be clear that on the terms of the present mortgage the mortgagor could not redeem earlier than Jeth Sudi Puranmashi 1287 P. corresponding to 22-6-1880, and therefore the suit when brought on 17-6-1940 was within 60 years from that date and was not barred by time. In my view the judgment of the learned District Judge was incorrect and should be set aside. I would therefore allow this revision application, set aside the order passed by the learned District Judge of Benares and restore that of the learned Assistant Collector, first class decreeing the plaintiff's claim for redemption with costs throughout.
28. The application in revision is allowed, the decree of the lower appellate Court is set aside and the decree of the trial Court restored. The plaintiff applicant will have his costs of all three Courts.