Mohanlal v. Ram Prasad — 1972 DIGILAW 90 (RAJ)

KAN SINGH, J.—-This is a defendants appeal arising out of a suit for redemption of a martgage 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 Samvat 1970. Shri Shri Sheonath, the mortgagee, is alleged to have sub-mortgaged 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 mortage or sub mortgage as alleged by the plaintiff. Inter alia they claimed that an amount of Rs. Rs. 350/- was spent on repairs of the property. They further pleaded that in the former Shahpura State a mortage deed irrespective of the amount involved was compulsorily registrable and further was required to have been executed on a stamp and if it were not registered it could not be acted upon and no suit could be brought on its basis. 4. The suit was filed in the court of Civil Judge, Shahpura on 26-11-63. 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.25/- as mortage money and Rs. 210/- as costs of repairs by 151263. 5. Aggrieved by that judgment and 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. 6. 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 mortage 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 of sec. 24 of the Registration Act of the former Shahpura State. The learned District Judge held that the mortgage in question was proved. It was also contended that as the mortage 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 of sec. 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-sec. (3) of section (3) of sec. 32 of the Evidence Act were attracted and as the entry Ex. 1 contained a statement 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 8 of 1962—Ratanlal vs. Kanwarlal and others, decided on 6-9-54). 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 13 years 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 thai the property was first mortgaged with Shri Sheonath and thereafter it was sub-mortgaged by Shri Sheonath to the ancestors of the defendant. The witness had seen the document. The learned Judge accepted his evidence as trustworthy. In the result, he affirmed the judgment and decree of the first court and: dismissed the appeal. 7. It is in these circumstances that the defendants have come up in second appeal to this Court. 8. 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 inasmuch 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. Learned counsel argued that the entry cannot be said to be against the pecuniary interest of the maker inasmuch 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 respect of the point of view presented by learned counsel for the appellants. One can conceive of causes 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 mortage is involved in the light of the value of the mortgaged property itself. In the present case the transaction had taken place almost 69 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 has relied on the evidence of P.W. 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 findings of the two courts below. 9. The next question about the maintainability of the suit on account of the mortgage being an unregistered one requires a careful consideration. In Shahpura State there were Qawaide Registry of Shahpura published in October, 1880. Sec. 1 is about the 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 sec. In Shahpura State there were Qawaide Registry of Shahpura published in October, 1880. Sec. 1 is about the 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 sec. 22 which I may read : ^^nQk ¼22½ ftu nLrkost d jftLVjh gksuh ykfte gS oks uhps fy[kh tkrh gSA ¼1½ jguukek oks fdQkyrukek oks nLrkost ojldVh ckcr tk;nkn xSj eudwykA ¼2½ csukek ckcr tk;nkn xSj eudwykA ¼3½ fgogukek pkgs tk;nkn eudwyk dk gks ;k xSj eudwyk dkA ¼4½ eq[krkj ukekvkeA ¼5½ nLrkost Bsdk tks ikap lky ds tk;n ds okLrs fdlh jS;r dh rjQ ls gksA ¼6½ Qkj[krha ¼7½ rQfl;r ukek ;kus ekSDdk dkxtA ¼8½ rdlheukek ckcr tk;nkn eudwyk ;k xSj eudwykA^^ Then sec. 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 ¼23½ ;gka jftLVjh ds dk;ns lEor~ 1930 ls tkjh gS blfy;s lEor~ 1930 ;k mlds ckn dh nLrkost fcuk jftLVjh ,slh iSk gks fd ftldh jftLVjh ykfteh Fkh rks mldh fuLcr dkjokbZ cewftc nQk ¼24½ dh tkosxhA^^ The documents which were required to be registered and which were not registered were to be dealt with as per sec. 24. I may read here sec. 24 : ^^nQk ¼24½ ftu nLrkost dh jftLVjh bu dk;nksa ds eqokfQd ykfteh gS oks fcuk jftLVjh dh gqbZ fdlh vnkyr esa fdlh eqdn~esa esa xokgh esa ugh yh tk;xh vkSj u mldh cqfu;kn ij dksbZ nkok lquk tk;xkA^^ 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 affected this provision; The Shahpura State first integrated with the United State of Rajasthan formed with the Maharaja of Kota as Raj-pramukh in 1948. That United State of Rajasthan was reformed a few months later with the integration of the former Udaipur State with the Maharana of Udaipur as its Rajpramukh. That United State of Rajasthan was reformed 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 Rajasthan with certain verbal modifications This means that the registration law of Shahpura continued in force in the territory of the former Shahpura Stata. Then on 24-1-50 the Rajasthan Adaptation of Central Laws Ordinance, 1950 (Ordinance No. IV of 1950) was promulgated by the Rajpramukh on 24-1-50. 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. Sec. 10 made provision for repeal and saving. I may read that section : "S 10. Repeal and Saving.—All laws covered by the Central Laws adopted by or under this ordinance, in force in the whole or any part of Rajasthan, shall, on the commencement thereof, be repealed . Provided 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." Sec. 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 adopted to Rajasthan thereby or thereunder in the same manner as they apply to a Central Act of the Indian Legislature. 10. Sec. 6 of the General Clauses Act reads : — "Sec. 6. 10. Sec. 6 of the General Clauses Act reads : — "Sec. 6. Effect of Repeal — Where this Act, or any Central Act or Regulation made after the commencement of this Act, repealed any enactment hitherto 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 operations of 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 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 Part-B States (Laws) Act, 1961 (Act III of 1961), by which certain Central Laws were extended to all Part B States including Rajasthan. The Indian Registration Act, 1938 is mentioned in the schedule of this Act. Repeal and saving clause of this Act reads as under : — "S. 6. The Indian Registration Act, 1938 is mentioned in the schedule of this Act. Repeal and saving clause of this Act reads as under : — "S. 6. Repeals 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 effect : (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 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, below or scheme framed, certificate obtained, patent, permit or licence granted or registration effected 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 Ordinace." 11. Now the effect of a repealing law namely, the extension of the Indian Registration Act on the repealed law namely, the Shahpura Registration Law has to be examined in the light of sec. 6 of the General Glauses 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. 12. 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. 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. 12. 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 wa3 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 sec. 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 sec. 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 registrasion 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 subsequently under the Indian Registration Act Learned counsel relied on Mahendra Prasad vs. State(1), Abdulkadir vs. State of Kerala(2) and Public Prosecutor, Pondicherry vs. A. A. Khan(3) to reinforce his submission. 13. In Mahendra Prasad vs. State(l), 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 and 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 superseeds those provisions of the Adapted Act which were inconsistent with the provisions of the Extended Act. The learned Judges eventually held that the right of the permanent pleaders to practice without fresh enrolment 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 Salad, The learned Judges considered the language of the repealed Act and its several provisions and then held that such a right was lost. 14. 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. 15. 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 an ingredient of a legal right & without that the right would remain imperfect. Salmond has dealt with the kinds of legal rights in his Jurisprudence Twelfth Ed. (1966). I may read the following passage at page 43 :— "The kinds of legal tights—Rights and their correlative duties may be distinguished in various ways. Enforceability is an ingredient of a legal right & without that the right would remain imperfect. Salmond has dealt with the kinds of legal rights in his Jurisprudence Twelfth Ed. (1966). I may read the following passage at page 43 :— "The kinds of legal tights—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 ail 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 and duties which, though undoubtedly recognised by the law, yet fall short of this typical and perfect form." 16. 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 and a perfect duty is one which is not merely recognised by the law, but enforced and a duty is enfor-ceable 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 and the enforceability of the right of a litigant. In State vs. Sangram Singh(4) 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. 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 light 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 partties affected thereby to seek their remedies under the old law, since curtailed or repealed by the new legislation, because in that event that legislation would destroy pre-existing rights 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. 17. Similar was the view taken in an earlier case Panna vs. Madanlal(5). It was observed that the general rule relating to law of limitation is that the law appli-cable 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 new 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 and even a procedural enactment will not operate retrospectively so as to destroy vested rights. 18. 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 If legal right, as in my humble view it is, then the effect of sec. 18. 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 If legal right, as in my humble view it is, then the effect of sec. 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 sec 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 nonetheless the effect of the words— ^^u mldh cqfu;kn ij dksbZ nkok lquk tk;xk** is precisely the same. Sec. 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. 19. Now, in Abdulkadir vs. State of Kerala(2), Cochin Tobacco Act and the Travancore Tobacco Act along with the Rules corresponded to the Central Excises & Salt Act, 1944 were repealed by sec. 13(2) thereof. The petitioner in the case filed a writ petition before the High Court even after the abrogation of Rules and 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 sec. 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 sec. 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 arc 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 and liabilities incurred under the repealed law shall stand abrogated. This case is, therefore, in my view, not helpful. 20. In the Madras case(3), the learned Judge was dealing with a question of prosecution in respect of offence under the Companies Act, 1913, long after the Act of 1956 came into force in Pondicherry territory. On consideration of the language of sec. 648 of the 1966 Act as also the provisions of sec. 6 of the General Clauses Act the learned fudge 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 sec. 6 of the General Glauses Act and the saving sections of any special enactment, line of enquiry should be not whether the new Act expressly keeps alive the old rights and liabilities but 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 and liabilities. 20. 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 and liabilities. 20. Before parting with I may pay tribute to both the learned counsel for a very persuasive, interesting and a skilful argument. 21. For the reasons mentioned above I hold that the suit mortgage could not have been enforced. 22. 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. 23. Learned counsel for the respondents orally prayed for leave to appeal under sec. 18 of the Rajasthan High Court Ordinance, 1949, On account of the importance of the question raised the leave to appeal is granted.