1. This is a plaintiffs' appeal from an order of remand dated 30-8-1951 passed by the District Judge of Mandi.
2. Mt. Chandi succeeded to malguzari rights in certain land as a Hindu widow on the death of her husband Das. She died on 23-11-1998 B., i.e. sometime in 1941 A.D., and thereupon the then Mandi State took the property by escheat. The plaintiffs made a representation to the ruler of the State, but the latter affirmed the eschea.t so far as the land in dispute in the present litigation is concerned by an order dated 18-2-2005 B., i.e. sometime in 1948 A.D. The present suit was filed against the State on 29-6-1949 for a declaration that the plaintiffs were entitled to succeed to the property on the death of Mt. Chandi as reversioners to the last male holder Das and for possession of that property.
3. On the date of the death of Mt. Chandi in 1998 B., and on the date when the said order was passed in 2005 B., the Mandi Land Revenue Regulation No. 8 of Section 1975 was in force. According to the pedigree set up by the plaintiffs, they professed to be collaterals with a common ancestor Bhagirath who was removed more than four generations from the last male holder Das. In order to be entitled to succeed by inheritance to the rights of the deceased malguzar Das it was, therefore, incumbent on the plaintiffs to prove, under Section 19(1)(a) of the Regulation, that the said common ancestor Bhagirath held the rights. Subsequent to the passing of the said order by the ruler of Mandi but prior to the institution of the present suit, the Central Government passed the Himachal Pradesh (Application of Laws) Order, 1948, which came into force on 25-12-1948. A Schedule of Central and Punjab Acts was appended to this Order. By Section 3 of the Order these enactments were applied to Himachal Pradesh subject to certain modifications. Section 7(1) of the Order laid down as follows :
'Unless otherwise especially provided in the Schedule to this Order, all such laws in force in Himachal Pradesh which correspond to the enactments enumerated in the Schedule and which are continued in force by Section 5, Himachal Pradesh (Administration) Order. 1948, shall cease to have effect save as respects things done or omitted to be done before the commencement of this Order.'
One of the Punjab Acts applied to Himachal Pradesh by means of this Order was the PunjabLand Revenue Act 18 of 1887. The correspondinglaw, as embodied in the said Regulation, therefore,stood repealed from 25-12-1948 under the provisionsof Section 7(1) of the Order. The Punjab Land Revenue Act does not contain any provision corresponding to Section 19 of the Regulation relating to succession to malguzarj rights. The effect of the saidrepeal, therefore, was that from 25-12-1948 succession to malguzari rights was governed by thepersonal law of the party concerned (in thiscase the Hindu Law).
4. The trial Court decreed the suit holding that the case was governed by the new law which came into force on 25-12-1948, i.e. by the Hindu Law. On an appeal by the State, however, the learned District Judge was of the view that the case was governed by Section 19 of the said Regulation, and, as the trial Court had framed no issue as to whether the disputed land was held by the common ancestor Bhagirath, he passed the order which is the subject-matter of the present appeal setting aside the judgment and decree of the trial Court and remanding the case for redecision after framing the necessary issue.
5. The sole question for determination in this Court is whether the case is governed by the aforesaid provisions of the Mandi Land Revenue Regulation of 1975 or by the Hindu Law. The learned counsel for the appellants argued that the case is to be decided according to the Hindu law and not according to the said provisions of the Mandi Regulation. He put forward two reasons in support of this view: (1) that the effect of the repeal was as if the Mandi Regulation never existed, and (2) that the crucial date was the date of the suit, and on that date it was the Hindu law, and not the Mandi Regulation, which was in force. For reasons to be recorded presently, neither of these contentions is sustainable.
6. The learned counsel cited two rulings in support of his contentions. The first was--'Digambar Paul v. Tufazuddi', AIR 1934 Cal 80 (2) (A). That was a suit by occupancy raiyats against an, under raiyat for recovery of arrears of rent for the years 1333, 1334 and 1335 B.S. During the first two years the old Section 48, Bengal Tenancy Act, was in force which imposed a disability on an occupancy raiyat as regards the rate at which he could recover rent from the under-raiyat. Before rent for 1335 B.S. fell due that disability was removed by an amendment of Section 48, Bengal Tenancy Act, by Act 4 of 1928. It was held by Gulia and Hartley, JJ., that as the section as amended could not have a retrospective-effect, the plaintiff's claim for rent for the years-1333 and 1334 was subject to the disability contained in the old section. As regards rent for 1335, they held that the disability under the previous law was removed because the effect of substitution of the new Section 48 for the old Section 4.8 under Act 4 of 1928 was that the old section was repealed. In this connection, following the English case of --'Watson v. Winch', (1916). 1 KB 688 (B), they further observed as follows:
'The effect of repeal of a statute, in the absence of saving clauses, is that it has to be considered as if the statute so repealed had never existed. It ceases to be operative, unless there is any clause in the new statute preserving, the old statute: the underlying principle being, that there cannot be two inconsistent codes in the same matter, and if the previous statute-has to be preserved that must be done expressly.'
7. Par from supporting, the ruling really demolishes the contentions put forward by the learned counsel for the plaintiffs-appellants. Firstly, the date of the institution of the suit was. not taken as the crucial date for determining the applicability of the law. On the contrary, the crucial date was the date on which the cause of action for the recovery of rent of a particular year arose. It was accordingly held that as the cause of action for the claim in respect of the years 1333 and 1334 arose when the old Section 48 was in force, the plaintiff's claim in respect of those years was subject to the disability contained in, that section. It was further held that as the cause of action for the suit for the recovery of rent for the year 1335 arose after the repeal of the old section, the disability imposed by the previous law had been removed and the plaintiff was entitled to recover rent at the contract rate. It as true that in considering the plaintiff's claim for rent for 1335 both the date of the institution of the suit and the date on which the cause of action for the suit arose were mentioned, but a perusal of the entire ruling shows that the determining factor was not the date of the institution of the suit but the date on which the cause of action arose. This will become further evident from the fact that although the new Section 48 as amended by Act 4 of 1928 had come into force before the institution of the suit, the law held: applicable in respect of the claim for the years 1333 and 1334 was the law under the old Section 48. This was done for the specific reason that when cause of action for those two years arose the old law was in force. It is immaterial, therefore, that on the date of the institution of the present suit the Mandi Regulation was no longer in force. The main thing to see, as laid down in the aforesaid ruling cited by the learned counsel for the plaintiffs-appellants himself, is whether there is a saving clause in the repealing enactment. The same view is expressed in The Construction of Deeds and Statutes by Odgers, Third (1952) Edition, at page 262 as follows: 'Similarly rights acquired under a Statute will not be taken away by the repeal of the Statute conferring them. Sometimes a clause to this effect is inserted in the repealing Statute, but this is really unnecessary both by the common law and now by Section 38(2) of the Interpretations Act, 1889.'
Section 6 of our General Clauses Act, 1879, corresponds to Section 38 of the English Interpretations Act, 1889. Since the repealing Act in the present case is a Central Act, the repeal would be deemed to be subject to the savings contained. Section 6 of the General Clauses Act, so that the insertion of any saving clause in the repealing Act was unnecessary. The repeal in the present case purports, however, to be specifically subject to a saving clause in view of the occurrence of the words 'save as respects things done or omitted to be done before the commencement of this Order' in Section 7(1), Hima-chal Pradesh (Application of Laws) Order, 1948. It follows, therefore, that the old law as contained in Section 19 of the Mandi Regulation could not cease to have effect by reason of its repeal in respect of things done or omitted to be done before the commencement of the Himaehal Pradesh (Application of Laws) Order. The question, therefore, is whether there was anything done or omitted to be done before 25-12-1948.
8. The question posed at the end of the next preceding paragraph is easily answered. If the common ancestor Bhagirath did not hold the land in question as a malguzar (a matter depending for its decision on the finding of the issue remanded to the trial Court), the plaintiffs acquired no right, title or interest in the property in suit on the death of Mt. Chandi. That was one thing done before 25-12-1948. Another thing done before that date was that the State of Mandi had taken the property in suit by escheat. That being so, under the said saving clause added to Section 7(1), Himaehal Pradesh (Application of Laws) Order, 1948, the Mandi Regulation did not cease to have effect as respects these things done despite the repeal of the Mandi Regulation by the Order of 1948. In other words, the legality or otherwise of the said things' done continued to be governed by the provisions of Section 19), Mandi Land Revenue Regulation of 1975, despite the repeal and despite the fact that the Hindu law and not the said Regulation was in force on the date of the institution of the present suit.
9. The other ruling cited by the learned counsel for the plaintiffs-appellants was the Pull Bench decision reported as --'Bam Karan Smeth v. Ram Das Singh', AIR 1931 All 635 (C). That ruling lias, however, no application here since St related to a matter of procedure and not, as here, of substantial right. That being so, the new personal law cannot in the present case be said to have any retrospective effect in respect of the previous rights lost by the plaintiffs and acquired by the defendant State. In the result, therefore, I agree with the view of the lower appellate Court that the present case is governed by Section 19, Mandi Land Revenue Regulation of 1975 B.
10. In remanding the case it was observed by the learned District Judge that the onus of proving that the disputed land was held by the common ancestor should be placed on the plaintiffs-appellants. It was argued by their learned counsel in this Court that this onus was wrongly placed. His contention was that in every case where the State claims by escheat the onus lies on the State to show that the last proprietor died heirless. This argument is contrary to the clear provisions of Section 101, Evidence Act, which lays down that whoever desires any Court to give judgment as to any legal right or liability dependent upon the existence of facts which he asserts, must prove that those facts exist. The plaintiffs in the present case desire the Court to give judgment that they are entitled to succeed to the malguzari rights in question as reversioners to the last male holder Das. They must, therefore, prove, within the provisions of Section 19(1) (a) of the said Regulation, that the malguzari rights in question were held by the common' ancestor Bhagirath. The same result will follow by applying the test contained in Section 102, Evidence Act, namely, that the burden of proof in a suit or proceeding lies on that person who would fail it no evidence at all were given, on their side. If no evidence were given on either side in the present case, it is evidently the plaintiffs who would fail. It is noteworthy that the property has. already been taken by the State by escheat, and the plaintiffs are admittedly out of possession. The learned counsel for the piaintiffs-appellants cited the following rulings: --'Girdhari Lall Roy v. the Bengal Government', 12 Moo Ind App 448 (PC) (D); --'Secy of State v. Subraya', AIR 1916 Mad 209 (2) (E);--'Narayan v. Lakshman', AIR 1927 Bom 456 (F);--'Ganpat Rama v. Secy, of State', AIR 1921 Bom 138 (G): and--'Secy. of State v. Kanhaiya Lal', AIR 1941 Oudh 337 (H). It is to be noted, however, that in all these rulings, except the Bombay ruling, the Government was the plaintiff claiming the property by escheat. In the Bombay ruling the Government was not a party but the plaintiff's right of succession was held to be supported by authorities and by the various commentaries on the Mitakshara, and it was, therefore, held that it lay on the defendant to establish the plea set up by him that the property had escheated to the Grown. In none of these rulings, therefore, was the aforesaid rule of onus of proof departed from. I, therefore, hold that the onus of proof has been. rightly directed by the learned District Judge to be placed upon the plaintiffs.
11. The appeal is dismissed with costs and the judgment and order of the learned District Judge are upheld. The .parties are directed to appear in the trial Court oh 16-4-1953.