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Rakhal Chunder Bose Vs. Bhobo Sundari Debi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal583
AppellantRakhal Chunder Bose
RespondentBhobo Sundari Debi
Cases ReferredPergash Koer v. Mohabir Pershad Narain Singh
Excerpt:
mortgage - foreclosure, suit for - mortgage by conditional sale--regulation xvii of 1806--transfer of property act (iv of 1882), section 2 (clause c.), section 86--procedure. - .....still applies, and the procedure provided by it must be followed. on the other hand, if such right, liability or relief be not affected, the transfer of property act applies. the question in this case depends upon the construction to be placed upon the terms of the second section of the transfer of property act. after repealing, amongst other enactments, regulation xvii of 1806, it runs as follows: 'but nothing herein contained shall be deemed to affect-(a) the provisions of any enactment not hereby expressly repealed:(b) any terms or incidents of any contract or constitution of property which are consistent with the provisions of this act, and are allowed by the law for the time being in force:(c) any right or liability arising out of a legal relation constituted before this act.....
Judgment:

Richard Garth, C.J.

1. I confess I entertain considerable doubt whether, as a matter of strict law, the decision of the Allahabad Court was right.

2. I cannot help thinking that Sub-section (c) of Section 2 of the Transfer of Property Act was intended to apply to such cases as that with which we are now dealing. But as the majority of the Court think differently, and as the balance of convenience would seem to be in favour of that view, I am not disposed to dissent from their decision.

Wilson, J.

3. The words with which we have to deal are these: 'Nothing herein contained shall be deemed to affect any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability.' I am unable to agree with my learned colleagues in thinking that there is anything clear about this language. To me it appears so vague and indefinite that I cannot pretend to put any construction upon it with confidence. But on the whole I agree in the conclusion arrived at, and mainly for the following reasons. It is a general rule in construing Statutes that in matters of substantive right they are not to be so read as to take away vested rights, but that in matters of procedure they are general in their operation. I do not think we ought to conclude that the Legislature in the Transfer of Property Act meant to depart from the settled principle of legislation, unless that intention is shown beyond reasonable doubt. No such intention is in my judgment so shown.

4. Again, a Full Bench of the Allahabad Court has placed a construction upon the words in question, and I should not feel justified in differing from that decision unless I had a decided opinion adverse to it.

Treyelyan, J. (Prinsep, J., concurring).

5. The question which has been referred to us is one of importance, and it is not in our opinion free from difficulty.

6. A Full Bench of the Allahabad High Court has considered it in Ganga Sahai v. Kishen Sahai I.L.R. 6 All. 262 and in at least one case before a Division Bench of this Court Pergash Koer v. Mohabir Pershad Narain Singh I.L.R. 11 Cal. 582 this express question has been raised and decided. After bearing this case argued, I do not think that the decision in the case of Pergash Koer v. Mohabir Pershad Narain Singh is correct.

7. In my opinion we must select either the Regulation or the Act as having application to this case. The procedure in the one and in the other must be respectively taken in its entirety. If the repeal of the Regulation on the introduction of the new procedure in its place can be deemed to affect the right or liability of the mortgagor, or the relief in respect of such right or liability, the Regulation still applies, and the procedure provided by it must be followed. On the other hand, if such right, liability or relief be not affected, the Transfer of Property Act applies. The question in this case depends upon the construction to be placed upon the terms of the second section of the Transfer of Property Act. After repealing, amongst other enactments, Regulation XVII of 1806, it runs as follows: 'But nothing herein contained shall be deemed to affect-

(a) The provisions of any enactment not hereby expressly repealed:

(b) Any terms or incidents of any contract or constitution of property which are consistent with the provisions of this Act, and are allowed by the law for the time being in force:

(c) Any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability.

8. Section (c) is the only portion of this section which has any application to the present case.

9. It is contended before us that, inasmuch as under the Regulation no foreclosure can be complete until the expiration of a year from the date of the notice, and as under the Transfer of Property Act, Sections 86 and 88, it is competent to the mortgagor to redeem only within six months from the date of declaration by a Court of the amount due, the right of the mortgagor, or at any rate the relief in respect of such right, is affected by the change in the law.

10. I am unable to give effect to this contention.

11. It is impossible to say whether a mortgagor will have a longer or a shorter time for redemption under the Regulation than he has under the Act. He has, of course, as of right, the time given to him by the mortgage deed. The time that the Regulation gave him beyond the time given to him by the mortgage depended in reality upon the action of the mortgagee, who could at his pleasure postpone the giving of the notice. Under the Act the further time given to the mortgagor depends partly upon the pleasure of the mortgagee, who has the whole period of 60 years within which to bring a suit, and partly upon the accidents of litigation which may shorten or prolong the period of the pendency of the suit.

12. There is in reality no comparison between the time during which the mortgagor can redeem under the provisions of the Regulation and that given to him by the Act.

13. In my opinion the provisions both of the Regulation and of the Act are provisions of procedure. The question is whether the provisions of the Regulation are saved by the Act? This question depends entirely upon the construction to be placed upon the words 'right,' 'liability,' and 'relief' in the second section of the Transfer of Property Act, and it is necessary to ascertain what, in strictness of language, is the right of the mortgagor--what is his liability, and what is the relief in respect of such right or liability.

14. The right of the mortgagor is to have back his property on payment of the mortgage debt. The liability of the mortgagor is to have his property sold or foreclosed. The relief in respect of the mortgagor's right is the re-conveyance or giving back of his property to him. The relief in respect of the motgagee's right (which is equivalent to the mortgagor's liability) is the payment of the mortgage money, or, in case of non-payment, the foreclosure of the mortgagor's equity of redemption. There is, I think, a clear distinction between relief and the mode or procedure for obtaining such relief. The relief remains unaffected by the change of the procedure. The rights and liabilities of the mortgagor and mortgagee, and the relief in respect of such rights and liabilities, are the same under the Transfer of Property Act as they were before. A different procedure for enforcing such rights and obtaining such relief has, however, been adopted. The procedure for enforcing a right is no portion of that right, nor does it alter or affect it.

15. I agree with the decision of the majority of the Full Bench of the Allahabad Court, and especially approve of the remarks of Mr. Justice Oldfield with reference to the inconvenience which must result from any other decision.

16. In answer to the question put to us, I am of opinion that the provisions contained in the Transfer of Property Act apply to this case.


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