1. This is a plaintiffs' second appeal in a suit for redemption of a shop situated in the Sadar Mandi, Jaisalmer. The boundaries of the shop are given in the plaint and need not be repeated here. The suit was originally brought by Baboolal son of Chintamandas, but later on Phoolchand and Sujansingh were also impleaded as plaintiffs. The plaintiffs' case was that the said shop was mortgaged by Chintamandas, father of the first plaintiff, with the defendant Nathmal's father Moolchand for Rs. 475/- on Posh Vad 3 Samwat 1981, and he was also placed in possession thereof.
Thereafter, on 9-11-1940, the plaintiff gave a notice to the defendant through the Court for the redemption of the property, but he did hot give any reply. It was therefore prayed that Rs. 475/-which the plaintiffs had deposited in the Court should be given to the defendants and they should be ordered to hand over possession of the property to the plaintiffs.
2. One of the defendants, namely Ramlal presented his written-statement on 26-4-1946, He admitted the fact that Chintamandas had mortgaged his shop with the Firm Moolchand Ramlal for Rs. 475/-. He, however, pleaded that he had separated himself from the said Firm in the Samwat year 1936, and. that all the property and papers relating to the said Firm were in the possession of his brother defendant 2 Nathmal.
It was prayed that he had, therefore, nothing to do with the disputed property and the suit against him should be dismissed. The second defendant Nathmal's reply was that the disputed shop was never mortgaged by Chintamandas with his (defendant's father) that it was his ancestral property and he was in possession thereof for several generations, He raised other objections also on the basis of which the following six issues were framed by the trial Court: --
(1) Whether the shop in dispute belonged to the plaintiffs and was mortgaged with the defendants on Pos Vad 3 Samwat 1981.
(2) If it is mortgaged, then for what amount.
(3) Whether the shop in dispute is the ancestral property of the defendant and the defendant has been in possession as owner for more than 60 years.
(4) Whether the suit is not within time.
(5) Whether the suit cannot be instituted without obtaining a succession certificate.
(6) What reliefs the parties are entitled to?
3. The trial Court decided all the issues in the plaintiffs' favour and decreed the suit on 16-2-1951. Defendant Nathmal went in appeal against this decree. The learned Civil Judge found that the mortgage deed was inadmissible in evidence and inoperative because it was not got verified according to the circular order issued by the Jaisalmer State on 25-4-1920.
It was further remarked that the original mortgage-deed being inadmissible, secondary evidence regarding the terms of mortgage was also inadmissible. He therefore held that specific mortgage was not proved and so the decree of the trial Court was reversed and the suit was dismissed.
4. It is against this judgment and decree dated 3-5-1951 that the plaintiffs have come here in appeal.
5. This appeal was first listed for hearing before a Single Bench of this Court. It was urged by the appellants learned advocate before that Bench that the Circular dated 25-4-1920 issued under the authority of the Diwan of that State could not have the force of law.
The learned Judge considered it to be an important point to be decided by a Division Bench and, therefore, it is on his reference that this case has come before us.
6. The first question which comes for our determination is whether the circular of 25-4-1920 issued under the authority of the Diwan of the Jaisalmer state is a valid piece of legislation.
The said circular purports to have been issued from Mehkma Khas, Home Department, Shri Darbar Jaisalmer on 25-4-1920. It begins with saying that in the case of a sale of immovable property in the Jaisalmer State, the parties to the transaction had to pay Rs. 22/9 per cent on the purchase price to the State.
In order to avoid this duty, people often used to get mortgage-deeds written in place of sale-deeds and this led to future disputes between the parties and also caused loss of revenue to the State. It was, therefore, laid down that the documents should thereafter be verified by Adalat Sadar instead of Daftar Hisab and that Rs. 8/- per cent should be charged in stamps and one rupee per cent for Gadisar and Shri Lakshmi Nathji.
Thus, in all, a duty of Rs. 9/- per cent on the purchase price was levied on the sale of immovable property. In the case of mortgage, it was laid down that a duty of Rs. 2/4 per cent, in total would be charged on the mortgage-money. It was further provided that if the property would not be redeemed within the stipulated period, it would be taken to be a sale after the expiry of that period and a further duty leviable on the same will have to be paid.
The circular proceeds to say that all the mortgage deeds and sale deeds executed before the issue of this circular should also be got verified before 30-4-1921. It was further provided that the documents which would not be verified according to this circular would be considered invalid (najayaj).
It was, however, further provided that in special circumstances, the Department (Home Department), if satisfied, would have the authority to verify the documents even after the expiry of the period. The circular then further proceeds to say that proceedings according to this circular relating to properties in the city of Jaisalmer would take place in the Court and proceedings in the mofussil would take place in Hakumats.
The circular ends by saying that it would come into force on 1-5-1920. Thereafter, there is an order saying that a cone of this circular be sent to the Courts and Hakims, that a few copies thereof should be pasted on public places and that if anybody would contravene this circular, the document would be considered illegal. This order purports to be signed by M. R. Sapat, Diwan, Jaisalmer.
The learned Civil Judge has remarked that this circular was in the nature of Registration Act and since the mortgage-deed in this case was not got verified according to this circular, it was inadmissible in evidence.
It may also be mentioned here that in another case 'Himatram v. Chandmal', Civil First Appeal No. 25 of 1952, D/- 4-1-1954 (Raj) (A), a question was raised before this Court that a mortgage deed was not properly stamped according to this circular and, therefore, it should not be looked into. In that case, it was observed as follows:
'This circular also provides that delay in presentation of old deeds can be excused, and gives power to the Court so far as the properties in the city are concerned. Under these circumstances, we are of opinion that we can admit this document on payment of the necessary fee which comes to Rs. 8/8 in this case.'
7. Thus, the unverified document was held admissible in evidence on payment of the necessary stamp duty. The question of the validity of the circular, however, was not raised in that case. In fact, it was only a copy of the circular which was presented at that time and neither party questioned the validity thereof. That case is, therefore, distinguishable from the present one.
Now, that the question of the validity of this circular has been raised, we have called the original circular from the Collector, Jaisalmer. He has sent to us a file which contains circulars and orders of the Home Department. The disputed circular is also on the file and it is signed by Mr. Sapat, Diwan, Jaisalmer.
8. Learned counsel for the appellants has urged that the sovereign authority in the Jaisalmer State was the Ruler thereof and since this circular does not bear the signature of His Highness the Maha Rawal of Jaisalmer, and since it does not even purport to have been issued by his order, it cannot be taken as a valid piece of legislation.
It is urged that the Diwan of the Jaisalmer State had no authority to make or amend or repeal any law and, therefore, it could not be binding on all the subjects of the State. It is further urged that there is nothing to show if this circular was published in the Gazette or in the manner provided therein.
Lastly, it is contended that there is nothing on the record to show if this law was honoured in its observance or in its breach after the year 1920. It is pointed out that although the learned Civil Judge has mentioned in his judgment that according to his information, a record of such verified documents was kept, he has not disclosed the source of his information and, therefore, this remark should not weigh with this Court.
It is vehemently urged that the subjects of Jaisalmer State could not know about the existence of, such a law when it was not properly published and that the first appellate Court should not have thrown out the secondary evidence on the basis of such a circular of doubtful validity. In support of his contention, learned counsel has referred to 'Harla v. The State of Rajasthan', 1951 SC 467 (AIR V 38) (B).
9. Learned counsel for the respondent has, on the other hand, urged that this circular took the place of Registration Act in the Jaisalmer State and that since the mortgage deed was not got registered, it was inadmissible in evidence. He has also urged that the Diwan of the State could not issue such a circular on his own authority and if it were issued by him without the direction of His Highness, it would have been repealed by the Ruler at once.
It is, therefore, contended that we should presume that this was a valid law made by the Ruler himself and that it was signed by the Diwan according to the practice prevailing in the State.
10. We have given our anxious consideration to the arguments advanced on both the sides. We may point out that we cannot presume without any basis that in the year 1920, the law in the Jaisalmer State was laid down over the signature of the Diwan without making any reference to the order or direction of the Ruler of the State. Our attention has been drawn by learned counsel for the appellants to a circular order of Mahakma Aliya Khas, Jaisalmer, dated 1-3-1946, published in Shree Jaisalmer Rajpatra of the same date.
That circular shows that the Indian Penal Code, the Criminal Procedure Code, Civil Procedure Code, Indian Evidence Act, Transfer of Property Act, Contract Act, Specific Relief Act, Easements Act and Indian Limitation Act were adapted in the Jaisalmer State and it was directed that their provisions should be followed with due adaptation to local conditions in regard to the constitution and powers of Courts and such recognised custom or old practice as was not immoral or opposed to public policy.
This circular was also signed by the then Diwan of Jaisalmer State Shri B. N. Zutshi, but he had also mentioned therein that it was done by command, meaning obviously the command of the Ruler of the State.
We find that in the circular of 25-4-1920, even the words by command of the Ruler are missing, and, therefore, we cannot presume that this law was made by the sovereign authority. The Dewan was certainly not the sovereign authority and unless it is proved that His Highness the Maha Rawal had delegated his authority to him, we cannot take it as a valid piece of legislation.
11. In the case of 'Harla v. The State of Rajasthan', (B), the Ruler of the Jaipur State died on 7-9-1922 and the present Maharaja succeeded him. Since he was a minor at that time, the Crown representative appointed a council of ministers to look after the Government and the administration of the State.
On 11-11-1923 the said Council of Ministers passed a resolution purporting to enact the Jaipur Opium Act, but it was not published in the Gazette. On 19-5-1938, the said Act was amended and it was said that it would come into force from 1-9-1924. The validity of this law came for consideration by their Lordships of the Supreme Court and it was held that
'unless the Opium Act was valid when made, the mere addition of a clause fourteen years later stating that it shall come into force at a date fourteen years earlier would be useless.' It was also observed that 'In the absence of any special law or custom, we are of opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalised by laws of which they had no knowledge and of whichthey could not even with the exercise of reasonable diligence have acquired any knowledge.
Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence.'
It may be remarked that the said case was much stronger than the present case inasmuch as the re-solution was passed by a Council of Ministers which, was appointed by the Crown Representative to look after the Government and administration of the State during the Maharaja's minority. Further, the Jaipur Opium Act was a printed Act and it was acted upon by the Courts from 1923 onwards for a number of years.
12. In the present case, there is not even a, suggestion that His Highness the Maha Rawal of Jaisalmer was suffering from any kind of disability on account of which he could not put his signature or seal on the circular. In the presence of His Highness the Dewan of his State could not have any authority to make, vary or repeal any law.
We have not been pointed out any letter of authority delegating any of his power by the Ruler to the Dewan, Jaisalmer State. The circular does not even mention that this law was promulgated by the command of the Ruler. Learned counsel for the respondent has not shown even subsequent orders of His Highness giving his consent to this piece of legislation.
We cannot presume it to be issued under the command of His Highness simply because the appellant has not been able to show if it was repealed later on. Respondents' learned advocate has not also shown in what manner this circular was acted upon in the Jaisalmer State.
The learned. Civil Judge has certainly remarked that according to his information, a record was maintained and the formalities required by the law of registration were complied with. But he has not disclosed any source of his information and in the absence of any documentary evidence, we cannot place reliance on his personal knowledge whose source has not been disclosed.
We cannot treat this circular as the law of registration because it does not lay down in what, manner the documents were to be presented and within what time, they should have been presented. It appears that the Dewan was more concerned with the revenue than with laying down a proper procedure for the registration of documents. It, also shows that the documents could be produced after any number of years after the date of their execution and if the authorities were satisfied, they could be registered at any time.
Without meaning any disrespect, it may be remarked that this purports to be a very crude form of legislation. At any rate, if this were promulgated by the Ruler himself, we would have certainly I accepted it. But since it was not laid down by the sovereign authority, we find ourselves unable to treat it as a valid law.
We are also doubtful if this circular was sufficiently known by the subjects of Jaisalmer State because the respondent also did not take care to get the document registered and he did not even raise the objection about non-registration of the document by the time the first written statement was presented by him on 21-8-1946.
13. Next, we have to see if secondary evidence produced by the appellant is admissible when the mortgage-deed was not compulsorily registrable inJaisalmer State by the time this suit was instituted. It is enough to say that the mortgage deed must be in the possession of the mortgagee.
The plaintiff had mentioned in his plaint that the document was scribed by Bulidan and attested by Motilal and Jawaharlal and that a note about the execution of such a mortgage deed was made by the mortgagor Chintamandas in his Bahi. He has produced a copy of the said note in the Bahi with the plaint. He later produced P. W. 2 Jawaharlal, one of the attesting witnesses to the document.
Jawaharlal has stated that the disputed shop was first mortgaged by Chintamandas with one Pannalal Sunar for Rs. 325/-, that Chintamandas redeemed that mortgage after paying the money to Pannalal and executed a fresh mortgage deed in favour of the respondents' father Moolchand. He also says that the mortgage deed was written by Bulidan and attested by himself.
It further appears from the record that Pannalal Sunar was examined on behalf of the plaintiff. He has also stated that the disputed shop was mortgaged with him by Chintamandas on Jeth Vad 9 Samwat 1974 for Rs. 325/- and that he got it redeemed later on by paying of this amount. He has verified the contents of Ex. P. W. 1/A which further shows that the shop was mortgaged with him for Rs. 325/- and that it was redeemed on Pos Vad 3 Samwat 1981 after paying off the amount.
The statements of these witnesses clearly show that a mortgage deed was executed in favour of the respondent's father for the disputed shop. That document must be in the possession of the respondent. It was for him to produce that document and since he has failed to do so, the plaintiff is well within his right to produce secondary evidence, not only about the existence of the mortgage deed, but also about its contents.
Learned Civil Judge has found that the appellants were unable to prove the specific mortgage but he has said so because he did not look into the oral evidence produced by the plaintiff. The statements of Jawaharlal and Pannalal read with the entry in the Bahi of the appellants and Ex. P, W. 2/A show that the mortgage deed was executed by Chintamandas in favour of the respondents' father for Rs. 475/-.
14. The respondents plea in the trial Court was that the shop was his own ancestral property and was in his possession for generations. He produced a law witnesses but they have not been believed by the trial Court. We have also gone into that evidence and we find that the trial Court has committed no error in discarding it.
It appears that none of the respondent's witnesses have any personal knowledge about the ownership of the property and some of them, for instance, D. W. 4 has clearly admitted that his evidence is only hearsay. In fact, this evidence should not have been admitted at all.
It is significant that the respondent came into the witness-box after he had exhausted other oral evidence. His own statement shows that he is not speaking the truth. Although he says that the shop had come to his share, he has not produced any partition deed. He has even denied the notice which was given to him. It may be pointed out here that his own brother Ramlal did not support his version that this was his ancestral property.
On the other hand, he admitted the mortgage and still Nathmal did not give any reason in his statement why his brother had said so. There is no evidence worth the name to show that, the disputed property was in the ownership of the respondent's father. Under the circumstances, the trial Court was correct in decreeing the suit.
15. We, therefore, allow the plaintiffs' appeal,set aside the decree of the Civil Judge and restorethat of the trial Court. The appellants will receivetheir costs throughout.