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Mohanlal and ors. Vs. Ram Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Regular Second Appeal No. 444 of 1964
Judge
Reported in1972WLN332
AppellantMohanlal and ors.
RespondentRam Prasad and anr.
DispositionAppeal allowed
Cases ReferredAbdulkadir v. State of Kerala
Excerpt:
.....enforced & a duty is enforceable when an action or other legal proceeding civil or criminal will lie for the breach of it. it is a well settled proposition of law that the new law of limitation would not revive a barred right. similarly, it may be taken as equally well settled that the new law of limitation cannot be construed retrospectively so as to destroy altogether the remedy of a litigant to enforce his right in a court of law. xk a is precisely the same. it is a well established principle that in applying the principle in respect of section 6 of the general clauses act and the savings sections of any special enactment, line of enquiry should be not whether the new act expressly keeps alive old right & liabilities whether it manifests an intention to destroy them. 18. before..........act does not require registration of a mortgage of less than rs. 100/- and consequently the suit mortgage though it was unenforceable under the registration law of shahpura acquired immunity subsequent under the indian registration act. learned counsel relied on mahendra prasad and ors. v. state ilr 2 raj. 655, abdulkadir v. state of kerala air 1963 s.c. 922 & public prosecutor, pondichery v. a. a khan : air1970mad311 to reinforce his submission.10. in mahendra prasad and ors. v. state ilr 2 raj. 655, the effect of the extension of indian legal practitioners act (no. xviii of 1879) by part-b states (laws) act on the similar laws of covenanting states about the right of permanent pleaders to continue to practice in rajasthan after the extension of the indian legal practitioners act.....
Judgment:

Kan Singh, J.

1. This is a defendants' appeal arising out of a suit for redemption of a mortgage in respect of a shop.

2. Ram Prasad, respondent No. 1, had brought the suit against the appellants and respondent No. 2 Rambux, alleging that his grand-father and father had mortgaged the suit shop situated in village Kanechhan with the appellants' ancestors for a sum of Rs. 25/- on Savan Sudi 13 of Sumvat 1973. Shri Sheonath, the mortgagee, is alleged to have sub-mortgageed it with Shri Baldeo Ramchandra, ancestors of the appellants here.

3. The suit was contested by the defendants saying that they were the owners of the shop. They denied the mortgage or sub-mortgage as alleged by the plaintiff. Inter alia they claimed that an amount of Rs. 350/- was spent on repairs of the property. They further pleaded that in the former Shahpura State a mortgage deed irrespective of the amount involved was compulsorily registerable and further was required to have been executed on a stamp and if were not registered, it could not be acted upon & no suit could be brought on its basis. The suit was filed in the court of Civil Judge, Shahpura on 25. 11. 1963. The learned Civil Judge framed a number of issues and after recording evidence of the parties, passed a preliminary decree in favour of plaintiff-respondent asking him to pay a sum of Rs. 35/- as mortgage money and Rs. 210/-as cost of repairs by 15.12.63.

4. Aggrieved by that judgment & decree Mohanlal, defendant, filed an appeal to the court of the learned District Judge, Bhilwara. The plaintiffs filed a cross-objection in regard to the amount of Rs. 210/- allowed by the trial court as costs of repairs. It was contended on behalf of Mohanlal before the learned District Judge that the plaintiff-respondent had failed to prove the mortgage in question and the trial court was in error in relying upon Ex. 1, an entry in a Bahi kept by the plaintiffs' ancestors. It was also contended that as the mortgage deed was not a registered one, no suit could be filed on the basis thereof for enforcing the mortgage; such a suit being barred by the provisions for Section 24 of the Registration Act of the former Shahpura State. The learned District Judge held that the mortgage in question was proved. He thought that the provisions of Sub-section (3) of Section 32 of the Evidence Act were attracted and as the entry Ex 1 contained a statement against the pecuniary and proprietary interest of the person making it, it was receivable in evidence. For that he relied on a judgment of this Court in D.B Civil Regular first Appeal No. 3 of 1962 Ratan lal v. Kanwarlal and Ors., decided on 6-9-64.) As regards the maintainability of the suit the learned District Judge observed that even though according to the law of registration of the erstwhile Shahpura State no suit could be brought for enforcing such mortgage in the absence of registration, but that law having been repealed long ago, the present suit filed almost after 13years of the formation of the Rajasthan State was not barred. The learned District Judge also went into the oral evidence of the parties and on the basis of the evidence of plaintiffs' witness Mishrilal P.W. 4, he held that the property was first mortgaged with Shri Sheonath to the ancestors of the defendant. The witness had seen the document. The learned Judge accepted his evidence as trust worthy. In the result, he affirmed the judgment and decree of the first court and dismissed the appeal.

5. It is in these circumstances that the defendants have come up in second appeal to this Court.

6. Learned Counsel for the appellants contested the observations made by the learned District Judge regarding the applicability of Sub-section (3) of Section 32 of the Evidence Act. Learned Counsel argued that the entry cannot be said to be against the pecuniary interest of the maker in as much as by taking upon himself the liability of a paltry amount of Rs. 25/-he would be thereby trying to gain an advantage for himself in respect of the alleged mortgage shop. If that were the only evidence in the case, then perhaps much could be said in support of the point of view presented by learned Counsel for the appellants. One can conceive of cases where a person may take upon himself a comparatively small pecuniary liability and in the next breath claim a substantial property. In such a case one cannot necessarily hold that the statement contained in the entry would be against the pecuniary interest of the maker. But the question whether the statement is really against the pecuniary interest of the maker or not has to be examined in a case where a question of mortgage is involved in the light of the value of the mortgaged property itself. In the present case the transaction had taken place almost 59 years back when the shop which was allegedly mortgaged for a sum of Rs. 25/-may not have been of any substantial value. Any way, this is not the only evidence on which the court below has held that the shop had been mortgaged by the ancestors of the plaintiff with Shri Sheonath and then the latter had sub-mortgaged it with the ancestors of the defendant. Apart from this entry the court below had relied on the evidence of PW 4 Mishrilal who had seen the document itself in possession of the defendants. That being so, it cannot be said that the court below was not justified in reaching the conclusion which it did This is a finding of fact about the existence of mortgage and I am, therefore, not inclined to go behind the concurrent finding of the two courts below.

7. The next question about the maintainability of the suit on account of the mortgage being an un-registered one requires a careful consideration. In Shahpura State there were 'Quwaid Registry of Shahpura' published in October, 1880. Section 1 is about definitions. Then there are sections about the setting up of the Registration Department and for maintenance of records. About documents which were required to be registered there is Section 22 which I may read:

nQk 22 ftu nLrkost dh jftLVjh gksuh ykfte gS osk uhps fy[kh tkrh gS AA

1jguukek oks fd Qkyrukek oks nLrkost cjldVh ckcr tk;nkn xSj eudwyk AA

2cSukek ckcr tk;nkn xSj eudwyk AA

3fgcgukek pkgs tk;nkn eudwyk dk gks ;k xsSj eudwyk dk AA

4eq[rkjukek vke AA

5nLrkost Bsdk tks ikap lky ls tk;nkn ds okLrs fdlh j;;r dh rjQ ls gks AA

6Qj[krh AA

7rdfu;r ukek ;kus xkSn dk dkxt AA

8rDlheukek ckor tk;nkn eudwyk ;k xSj eudwyk A^^

Then Section 23 lays down as to how documents which were required to be registered and which were not registered were to be dealt with. This section reads:

nQk 23 ;gka jftLVjh ds dk;ns lEor~ 1930 ls tkjh gS blfy, laor~ 1930 ;k mlds ckn dh nLrkost fcuk jftLVjh ,slh is'k gks fd ftldh jftLVjh ykfteh FkhA rks mldh fUkLor dk;Zokgh oewftc nQk 24 dh tkosxh AA

The document which were required to be registered and which were not registered were to be dealt with as per Section 24. I may read here Section 24:

nQk 24 ftu nLrkostkr dh jftLVjh gu dk;nh ds eqokfQd ykfteh gS oks fcyk jftLVjh dh gqbZ fdlh vnkyr es fdl eqdnes es xokgh es u yh tk;xh vkSj u mldh cqfu;kn ij dksbZ nkok lquk tk;sxk AA

This section provides two things the first one is that the unregistered documents when registration was compulsory were not to be taken in evidence in any court; and the second thing that is laid down is that no suit shall be heard on their basis. If the suit were brought at the time this law were in force, there is no manner of doubt that the suit would not be entertainable. The question is how the subsequent changes in the law have effected this provision. The Shahpur State first integrated with the United State of Rajasthan formed, with the Maharaja of Kota as Rajpramukh in 1948. That United State of Rajasthan was formed a few months later, with the integration of the former Udaipur State, with the Maharana of Udaipur as its Rajpramukh. The laws that were in force in the ex-covenanting States were continued with certain verbal changes about the authority which has to be considered to have taken the place of the Maharaja of Shahpura and the like. The laws relating to registration in force in the various covenanting States were not unified, Then came the third United State of Rajasthan with effect from 7-4-1949 with the Maharaja of Jaipur as its Rajpramukh Shahpura State was one of the covenanting States in the last mentioned United State of Rajasthan formed on 7-4-1949. The Rajasthan Administration Ordinance, No. 1 of 1949, continued all the laws that were in force in the territory of United State of Raj. with certain verbal modifications. This means that the registration law of Shahpura continued in force in the territory of the former Shahpura State. Then on 24-1-50 the Rajasthan Adaptation of Central Laws Ordinance, 1950, (Ordinance No. IV of 1950) was promulgated by the Rajpramukh It was this Ordinance under which the various central enactments as mentioned in the schedule thereof were applied to Rajasthan with certain modifications. At serial number 143 in the Schedule is the Indian Registration Act, 1908. In other words, the Indian Registration Act, 1908, thus came into force in Rajasthan. Section 10 made provision for repeal & saving. I may read that section:

Section 10. Repeal and Saving.-All laws covered by the Central Laws adapted by or under this Ordinance, in force in the whole or any part of Rajasthan, shall, on the commencement thereof, be repealed:

Provided that anything done or action taken before such commencement under any such law hereby repealed shall, unless specifically superseded or withdrawn, continue and be deemed to have been done or taken, as the case may be, under the corresponding Central Law.

Section 11 lays down that the provisions of the General Clauses Act, 1897 of the Central Legislature shall mutatis mutandis apply so far as may be to this Ordinance and to the Central Laws adapted to Rajasthan thereby or thereunder in the same manner as they apply to a Central Act of the Indian Legislature.

8. Section 6 of the General Clauses Act reads:

Section 6. Effect of repeal.-Where this Act, or any Central Act or Regulation made alter the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.

To complete the legislative history I may refer finally to the Para-B States (Laws) Act, 1951 (Act 111 of 1951), by which certain Central Laws were extended to all Part-B States including Rajasthan. The Indian Registration Act, 1908 is mentioned in the schedule of this Act. Repeal & saving clause of this Act reads as under:

Section 6. Repeal and savings.-If immediately before the appointed day, there is in force in any Part B State any law corresponding to any of the Acts or Ordinances now extended to that State, that law shall, save as otherwise expressly provided in this Act, stand repealed;

Provided that the repeal shall not affect-

(a) the previous operation of any law so repealed or anything duly done or suffered thereunder, or

(b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed, or

(c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed, or

(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed:

Provided further that, subject to the preceding proviso, anything done or any action taken (including any appointment or delegation made, notification, order, instruction or direction issued, rule, regulation, form, bye-law or scheme framed, certificate obtained, patent, permit or licence granted or registration affected under any such law shall be deemed to have been done or taken under the corresponding provision of the Act or Ordinance as now extended to that State, and shall continue to be in force accordingly, unless and until superseded by anything done or any action taken under the said Act or Ordinance.

9. Now the effect of a repealing law namely, the extension of the Indian Registration Act and the repealed law namely, the Shahpura Registration Law has to be examined in the light of Section 6 of the General Clauses Act. According to this unless a different intention appears, the repeal shall not inter alia affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. Now, the short question is whether the provisions of the Shahpura Registration Act created any right or any such liability as would remain unaffected by the repealing law. While learned Counsel for the appellants contends that in accordance with the Shahpura Registration Law a mortgage which was an unregistered one was not valid at all and it did not create any right under the mortgage, learned Counsel for the respondents, on the other hand, has submitted that the provisions of Section 24 of the Shahpura Registration Law only embodied a rule of admissibility of the document in evidence. Learned Counsel pointed out that unlike the provisions of Section 49 of the Registration Act there was no provision in that law that the document required by law to be registered and which has not been registered shall not effect any immovable property comprised therein. In the absence of such a provision, maintains learned Counsel, the transaction of mortgage would not be affected, but only the transaction would not be enforceable. In other words, according to him, the rights of the parties on the foot of the mortgage would be there, but there will be a disability against enforcing such right. Such a disability, according to learned Counsel, could be removed by subsequent legislation replacing that law. In the present case, learned Counsel proceeds to argue, the Indian Registration Act does not require registration of a mortgage of less than Rs. 100/- and consequently the suit mortgage though it was unenforceable under the Registration Law of Shahpura acquired immunity subsequent under the Indian Registration Act. Learned Counsel relied on Mahendra Prasad and Ors. v. State ILR 2 Raj. 655, Abdulkadir v. State of Kerala AIR 1963 S.C. 922 & Public Prosecutor, Pondichery v. A. A Khan : AIR1970Mad311 to reinforce his submission.

10. In Mahendra Prasad and Ors. v. State ILR 2 Raj. 655, the effect of the extension of Indian Legal Practitioners Act (No. XVIII of 1879) by Part-B States (Laws) Act on the similar laws of covenanting States about the right of permanent pleaders to continue to practice in Rajasthan after the extension of the Indian Legal Practitioners Act without the renewal of their Sanads as Pleaders was examined. The learned Judges considered the relevant provisions and in particular the saving and repealing clause and observed that the right given to pleaders by the previous law was quite inconsistent and incompatible with the provisions of the extended Act. They went on to observe that if the right of the pleaders granted by the repealed Adapted Act were to continue even after the coming into force of the Extended Act, certain provisions of the Extended Act namely, Sections, 6, 7 & 10 thereof would be rendered nugatory. According to the learned Judges, the intention of the Extended Act was to do away with the special privileges recognised by the Adapted Act and, therefore, the Extended Act supersedes those provisions of the Adapted Act. The learned Judges eventually held that the right of the permanent Pleaders to practice without fresh enrollment and without renewal of their certificates was lost by the extension of the Indian Legal Practitioners Act in its entirety to Rajasthan. One feature distinguishes this case and it is the future exercise of the right to practice without there being a fresh Sanad. The learned Judges considered the language of the repealed Act and its several provisions & then held that such a right was lost.

11. In the present case the question that falls for consideration is different. Here there was no right in the party to approach a court of law on the foot of a mortgage which was unregistered. Can it, in the circumstances, be said that the new Act would create a right where there was none or will remove the liability if that arose under the repealed law. Unless the intention to do away with old rights is manifest, a new law is not construed to have a retrospective effect so as to affect the past rights or liabilities already incurred.

12. Now, what are the attributes of a legal right. A legal right is such as is justiciable or enforceable in a court of law. Enforceability is are ingredient of a legal right and without that the right would remain imperfect. Salmond has dealt with the Kinds of legal rights in his Jurisprudence Twelfth Edition (1966). I may read the following passage at page 43:

The kinds of legal rights Rights and their correlative duties may be distinguished in various ways.

1. Perfect and imperfect rights-A perfect right is one which corresponds to a perfect duty; and a perfect duty is one which is not merely recognised by the law, but enforced. A duty is enforceable when an action or other legal proceedings, civil or criminal, will lie for the breach of it, and when judgment will be executed against the defendant, if need be, through the physical force of the State. In all ordinary cases, if the law will recognise a right at all, it will enforce it. In all fully developed legal systems, however, there are rights or duties which, though undoubtedly recognised by the law, yet fall short of this typical & perfect form.

13. Every right has a corresponding correlative duty. In other words, if A has a right to recover a loan from B, then B has a corresponding; duty to repay that loan. A perfect right is one which corresponds to perfect duty & a perfect duty is one which is not merely recognised by the law, but enforced & a duty is enforceable when an action or other legal proceeding civil or criminal will lie for the breach of it. Therefore, it is evident that enforceability of a right is not merely a question of procedure, but one about the existence of the right itself. This Court had to deal with a similar question about the effect of the law of limitation on the enforceability of the right of a litigant. In State v. Sangram Singh ILR 11 Raj. 984 it was observed:

It is a well settled proposition of law that the new law of limitation would not revive a barred right. Similarly, it may be taken as equally well settled that the new law of limitation cannot be construed retrospectively so as to destroy altogether the remedy of a litigant to enforce his right in a court of law. In case the remedy to enforce a vested right is altogether barred on the date when the new law comes into force, without providing any breathing time to the litigant, that remedy must continue to be governed by the old law of limitation.

It was also observed that where a subsequent law of procedure comes into force at once without giving any opportunity to the parties affected thereby to seek their remedies under the old law, since curtailed or repealed by the new legislation, it should not be allowed to have retrospective operation, because in that event that legislation would destroy pre-existing right of parties. Giving retrospective effect to legislation in such a case does not amount merely to a change in the rule of procedure, but it leads to forfeiture.

14. Similar was the view taken in an earlier case-Panna and Anr. v. Madanlal ILR 5 Raj. 529. It was observed therein that the general rule relating to law of limitation is that the law applicable is the law which is in force on the day on which the suit or proceeding is instituted notwithstanding that the cause of action arose before such new law came into force. But, where a particular Limitation Act comes into force at once by repealing the old Act with a longer period of limitation and where the suit which is within time according to old Act becomes barred by time if the now Act is applied to it, the suit can be filed within the period prescribed by the old Act; the reason being that if the new Act is applied to such cases, the result would be to destroy the right to sue which was vested in the plaintiff on the date the new Act came into force & even a procedural enactment will not operate retrospectively so as to destroy vested rights.

15. Right to sue is thus held to be a substantive right in contradistinction to a procedural provision. Therefore, if enforceability is one of the ingredients of a legal right, as in my humble view it is, then the effect of Section 6 of the General Clauses Act, 1897, which is to be applied in interpreting Ordinance No. 24 of Rajasthan is that any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed, viz. the registration law of Shahpura shall not be affected. In other words, they remain as they were. It is true, the provisions of Section 24 of the Shahpura Registration Law do not in terms lay down that an unregistered document shall not affect any immovable property comprised therein, but none the less the effect of the words:

u mldh cqfu;kn ij dksbZ nkok lquk tk;xk A

is precisely the same. Section 24 embodies two things; the first is the reception of document in evidence in any court; and the second is about founding of an action thereon. The first one is a rule of admissibility, that is merely a procedural provision, but the second one goes far beyond and deals with the substantive right of a party; enforceability of a right being the ingredient of a legal right. Regarding admissibility the law in force at the time the document is tendered in evidence would be applicable, but regarding the second provision about the founding of a suit thereon the provision cannot be said to be merely a procedural one and it undoubtedly relates to substantive rights of a party. For that the repealed law shall govern the matter in the absence of a clear intention manifested in the repealing law to the contrary which to my mind, is not so.

16. Now, in Abdulkadir v. State of Kerala AIR 1963 S.C. 922, The Cochin Tobacco Act & the Travancore Tobacco Act along with the Rules corresponded to the Central Excises and Salt Act, 1944 were repealed by Section 13(2) thereof. The petitioner in the case filed a writ petition before the High Court even after the abrogation of Rules & sought a declaration about the invalidity of the Rules. Learned Counsel drew attention to the following passage:

Where the Act repealed provides substantially for all matters contained in the Act effecting the repeal there is correspondence between the two Acts within the meaning of Section 13(2) and the earlier Act would thus stand repealed; it is not necessary that there should be complete identity between the repealing Act and the Act repealed in every respect.

Here the question was about the repealed laws of the erstwhile States with the extension of corresponding central law. Where the provision of any central Act or regulation is repealed and re-enacted with or without modification then unless it is otherwise expressly provided any appointment, notification or order forms the law and regulation so far as it is not inconsistent with the provisions are continued in force and be deemed to have been made or issued under the provisions so enacted. In such a case there would be again a question whether there is anything otherwise expressly provided. As I have already observed, the repealing law here does not lay down to the contrary that the previous rights arid liabilities incurred under the repealed law shall stand abrogated. This case is, therefore, in my view, not helpful.

17. In the Madras case : AIR1970Mad311 , the learned Judge was dealing with a question of prosecution in respect of offences under the Companies Act, 1913, long after the Act of 1956 came into force in Pondicherry territory. On consideration of the language of Section 648 of the 1936 Act as also the provisions of Section 6 of the General Clauses Act the learned Judge held that the prosecution under the repealed law could not be initiated after the coming into force of the new Act. It was observed:

It is a well established principle that in applying the principle in respect of Section 6 of the General Clauses Act and the savings sections of any special enactment, line of enquiry should be not whether the new Act expressly keeps alive old right & liabilities whether it manifests an intention to destroy them. It has to be ascertained whether there is any contrary intention in respect of savings in the new legislation.

This principle is unexceptionable. Having considered the same I have not been able to reach the conclusion that a clear intention is manifested in the repealed law to destroy the previous rights & liabilities.

18. Before parting with I may pay tribute to both the learned Counsels for a very persuasive, interesting and a skilful argument.

19. For the reasons mentioned above, I hold that the suit mortgage could not have been enforced.

20. The result is that I allow this appeal set aside the judgment and decree of the court below and hereby dismiss the suit. The parties are left to bear their own costs of this appeal.

21. Learned Counsel for the respondents orally prayed for leave to appeal under Section 18 of the Rajasthan High Court Ordinance, 1949. On account of the importance of the question raised the leave to appeal is granted.


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