1. This judgment governs the disposal of two other First Appeals (Nos. 242 and 251, both of 1956) also. These three appeals have been filed by the defendants against the judgment of the Additional District Judge, Rewa, decreeing the claim of the respondent for recovery of amounts due on mortgage deeds executed by the appellants.
2. The facts in all these cases are no longer in dispute. The appellants had executed the mortgage deeds for consideration in the years 1944 or 1945 in favour of the respondent. The mortgages were with possession and the property consisted of jagir villages in Vindhya Pradesh. On 1-7-1953 the jagirs were resumed under the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952 (No. XI of 1952) (hereinafter referred to as the 'Abolition Act') and the villages vested in the State Government. The respondent's case was that on the vesting, the mortgagors became liable personally for payment of the mortgage debt and accordingly he claimed the amount from them. The appellants in all these cases pleaded that under the provisions of the Abolition Act, the liability to pay the debt passed to the State Government and in no case were the mortgagors personally liable to pay the amount.
3. The trial Court found that the mortgagors, were personally liable to pay the debt and decreed the claims.
4. Shri G.P. Singh for the appellants has advanced only two contentions in his arguments before us. He conceded that if these contentions are not accepted, the decree of the trial Court in each case is correct. The two contentions are:
(i) That the provisions in Section 6 of the Abolition Act are repugnant to the provisions relating to mortgages in the Transfer of Property Act which was extended to Vindhya Pradesh by the Part C States (Laws) Act, 1950 (No. XXX of 1950) and, therefore, they are void; and,
(ii) That under Section 6 of the Abolition Act, the mortgage in suit which was a mortgage with possession is converted into a simple mortgage and thus, the land in the hands of the State Government is liable to be sold for recovery of the debt, and until the security is exhausted, there is no personal liability on the mortgagors to repay the loan.
5. Before considering the merits of the contentions raised by Shri Singh, we may state that the validity of the Abolition Act was considered by the Judicial Commissioner of Vindhya Pradesh in Mordhwaj Singh v. State of Vindhya Pradesh, AIR 1954 Vindh Pra 24. He held that the Abolition Act was valid, except for certain sections thereof. The matter was taken up to the Supreme Court and in State of Vindhya Pradesh v. Moradhwaj Singh, AIR 1960 SG 796, their Lordships held that the whole of the Abolition Act, including those sections which were held unconstitutional by the learned Judicial Commissioner, was valid. However, in that case, the question of Section 6 of the Abolition Act being repugnant to the -provisions of the Transfer of Property Act and void for that reason was not considered and it is, therefore, necessary for us to decide the point.
6. Point No. (i): The legislative power of the Legislature of Part C States was not derived directly from the Constitution. Article 240 of the Constitution gives power to the Parliament to provide for the administration of Part C States and to create a body to function as a Legislature for the State. Acting on this power, the Parliament enacted the Government of Part C States Act, 1951 (No. XLIX of 1951).
Under Section 21 of this Act, power was given to the Legislative Assembly of a Part C State to make laws with respect to any of the matters enumerated in the State List or in the Concurrent List. The power which the Parliament had to enact laws for the State under Article 246(4) was kept undisturbed. This power of the Parliament could be exercised, with respect to any item contained in any of the three Lists. Section 22 of the Act (No. XLIX of 1951) provides as follows :
"Section 22 : Inconsistency between laws made by Parliament and laws made by the Legislative Assembly of a State. -- If any provision of a law made by the Legislative Assembly of a State is repugnant to any provision of a law made by Parliament then the law made by Parliament, whether passed before or after the law made by the Legislative Assembly of the State, shall prevail and the law made by the Legislative Assembly of the State shall, to the extent of repugnancy, be void.
Explanation-- For the purpose of this section, the expression 'law made by Parliament' shall not include any law which provides for the extension to the State of any law in force in. ......... any other part of the territory of India."
In 1954, the Explanation was amended by adding the following words :
"or any law made before the 1st day of April, 1952, in relation to any matter with respect to which the Legislative Assembly of the State has power to make laws."
7. Comparing this Section 22 with Article 254 of the Constitution, we find some important differences in the scheme of distribution of Legislative powers. Article 254 of the Constitution provides that a law made by the Legislature of a State specified in part A and Part B with respect to one of the matters enumerated in the Concurrent List shall prevail in case of repugnancy with a law made by Parliament if it has received the assent of the President.
In Section 22, there is no such provision to enable the State law to prevail over the law made by Parliament. Another point to be noticed is that whereas in the case of Part A and Part B States, the State has exclusive jurisdiction to frame laws under the State List, in the case of Part C States, the jurisdiction of Parliament to make laws extends over all the items contained in the State List also.
8. Shri A.P. Sen for the respondent referred to the following observations in the decision of the Supreme Court in AIR 1960 SC 796 (supra) in paragraph 6:
"Applying this principle, it is obvious that the Vindhya Pradesh Legislature in this case had full competence to make this provision under Entry 18 List II of the Seventh Schedule."
On these observations, he contended that the competence of the State Legislature to enact Section 6 of the Abolition Act has been fully upheld. We may state that the observations relied upon were made in discussing the question whether power existed in the Vindhya Pradesh Legislature to enact the law. There can be no doubt that such power existed. The question, however, which falls to be considered in the present case is not the presence or absence of such a power but whether the enactment is void on account of repugnancy in accordance with the provisions in Section 22 of the Government of Part C States Act, 1951.
9. Shri Sen also relied upon the decision, in Megh Raj v. Allah Rakhia, AIR 1947 PC 72. The position under Section 107 of the Government of India Act, 1935, was discussed in that case, and it was held that the law relating to mortgages of agricultural lands fall under Schedule 7, List II, item 21, which was exclusively a State subject. The power of the State to provide for a summary procedure for redemption of mortgage debts in the case of agricultural land was upheld even though it partly trenched upon the provisions in the Contract Act.
That decision, however, is not of any help to the respondent in the present case. As we have said, the Vindhya Pradesh State as a Part C State did not have any exclusive power to legislate on the items contained in the State List. Their power to legislate both on the items in the State List an the Concurrent List was concurrent with the power of the Parliament. In other words, we may say that Lists II and III were both in the nature of Concurrent Lists in the context of Part C States.
The principle that if the "pith and substance" of State Legislature is within the legislative power of the State, then incidental trenching on the Concurrent List is immaterial, is not applicable to Part C States Which didi not possess exclusive legislative power on any item. That being the position, repugnancy with the Central Law would render the State Act void under Section 22 of the Government of Part C States Act, 1951.
10. That brings us to the question whether there is repugnancy between Section 6 of the Abolition Act and Section 58 of the Transfer of Property Act. The tests of repugnancy as laid down in Deepchand v. State of U.P., AIR 1959 SC 648 are :
"(i) Whether there is direct conflict between the two provisions;
(ii) Whether Parliament intended to lay down an exhaustive code in respect of the subject-matter replacing the Act of the State Lgislature; and
(iii) Whether the law made by Parliament and the law made by the State Legislature occupy the same field."
The law of mortgages has been exhaustively dealt with in Section 58 and the sections following that section in tile Transfer of Property Act. Mortgages have been classified into five classes, the last one being residuary including all those mortgages whick do not fall in the first four classes. Thus, all types of mortgages are provided for in that section. The provisions in Section 6(g) of the Abolition Act are in direct conflict with the provisions in Section 58 of the Transfer of Property Act and the two provisions cannot stand together. They are clearly repugnant to each other. If Section 22 of the Government of Part C States Act, 1951 applies, the State law must be declared void.
11. However we are of the opinion that after the amendment of the definition of Law made by Parliament as given in Explanation to Section 22 of the Government of Part C States Act, 1951, the contention that Section 6(g) of the Abolition Act is void on account of repugnancy must fail. Section 22 only provides that the law made by the Legislative Assembly of the State shall 'to the extent of the repugnancy be void,' These words occur in Article 254 of the Constitution. Practically the same words are used in Article 13 also. In Deepchand's case AIR 1959 SC 648 (supra), it has been observed that Articles 13 and 254 are in pari materia. Under Article 13, a distinction is made between pre-Constitution laws and post-Constitution laws. It has been held that where a pre-Constitution law violates a fundamental right, it becomes ineffective but is not obliterated from the Statute book. In the case of a post-Constitution law, it is void from the very start. In Saghir Ahmad v. State of U.P., AIR 1934 SC 728, the U.P. State Road Transport Act which violate Article 19(1) of the Constitution was held to be unconstitutional ab initio. Being a post-Constitution law, it was held that it could not be revived even when the Constitution was amended. In Bhikaji Narain v. State of M. P., (S) AIR 1955 SC 781, similar provisions contained in the ' C. P. and Berar Motor Vehicles (Amendment) Art, 1947, were held to be ineffective after the commencement of the Constitution; but it was held that after the First and the Fourth Amendments, the provisions revived and again became effective.
On a parity of reasoning, it would appear that on the ground of repugnancy with a law made by Parliament the infirmity attaches to the State Act only during the period while the repugnancy lasts. If the shadow cast by the Central Act on the State Act is removed, the State Act becomes effective -again. If the Act of Parliament is repealed, no question of repugnancy arises thereafter and the State Law again has full force. In this connection, we may refer to the fallowing passage from the Constitution of India by Chitaley (Vol. 3), Article 254, Note 17 (d) Pt. 5:
"For repugnancy means nothing more and nothing less than inconsistency and inconsistency necessarily connotes the existence of two factors; the moment such a state of things ceases to exist by the disappearance of one of the inconsistent elements, the inconsistency must necessarily cease and, therefore, there will no longer be any repugnancy. And, as the article only contemplates that the Provincial law should be void to the extent of the repugnancy, it follows that its validity will revive on the disappearance of the repugnancy. Thus, the repugnancy only causes the repugnant State law to remain in abeyance, unless and until the Central Law is repealed."
12. As we have said, in the instant case, the definition of law made by Parliament' was amended by excluding 'any law made before the 1st day of April 1952 in relation to any matter with respect to which the Legislative Assembly of the State has power to make laws.' The effect of the amendment is that the Government of Part C States Act, 1951, cannot be considered to be a "law made by Parliament" within the meaning of Section 22. No question of repugnancy could thus arise after the amendment to render the State Law void under Section 22, notwithstanding the fact that the provisions were in conflict with the Transfer of Property Act. The suits in the instant case were filed after the amendment. There is, therefore, no impediment to give Section 6 (g) of the Abolition Act its full effect.
13. It appears to us that even before the amendment of 1954, Section 6 (g) of the Abolition Act could not be attacked on account of repugnancy with Section 58 of the T. P. Act. According to the Explanation, as it then stood, "law made by Parliament' did not include 'any law which provides for the extension to the State of any law in force in any other part of the territory of India.' There is no doubt that the Transfer of Property Act was a law in force in other parts of the territory of India.
Shri Singh contends that the Part C States (Laws) Act, 1950, which directly extends the Transfer of Property Act to Vindhya Pradesh is not a law which "provides for the extension of any law to the State" as that Act itself extends the Transfer of Property Act. We do not agree. We commonly use the expression "under the provisions of a particular section" when we only mean "the section" itself.
In our opinion, the expression "provides for" refers to the content of law and would include an Act which extends the Acts of the neighbouring State just as much as an Act which provides for delegation of the power to extend an Act to any" authority. Accordingly, we hold that the Part C States (Laws) Act, 1950, is not a law made by the Parliament within the meaning of the Explanation to Section 22 of the Government of Part C States Act, 1951. Any repugnancy with a provision in the Transfei of Property Act is not covered by that section and a State law cannot be void on that account.
14. Point No. (ii): The relevant part of Section 6 of the Abolition Act is as follows:
"Section 6: Consequences of resumption of jagir lands :
(a) the right, title and interest of every jagirdar and of every other person claiming through him in his jagir lands ............ shall stand resumed to the State Government free from all encumbrances;
(b) ..... ..... ..... .....
(c) ..... ..... ..... .....
(d) ..... ..... ..... .....
(e) ..... ..... ..... .....
(f) ..... ..... ..... .....
(g) (i) a mortgagee in possession of the jagir land or any part thereof shall cease to have any right to possess such land or part thereof:
(ii) every such mortgage with possession, shall to the extent of the amount secured on the jagir land or part thereof be deemed to have been substituted by a simple mortgage;
(iii) (h) ..... ..... ..... .....
(2) Nothing contained in Sub-section (1) shall-
(a) render the State Government liable for the payment of debts incurred by the jagirdar before the date of resumption; (b)
15. It is contended by Shri G.P. Singh that the effect of Clause (g) of Section 6 of the Abolition Act is that the mortgage is converted into a simple mortgage so that the lands held by the State Government are liable to be sold for realization of the amount. This interpretation is in direct conflict with Clause (a) which provides that all lands shall stand resumed to the State Government "free from all encumbrances."
Further, this is in conflict with the provisions in Sub-section (2), as the sale of the lands vesting in the State Government would indirectly have the effect of making the State Government liable for the debt. The policy of the Abolition Act is that the State Government should be free from the burden of all encumbrances. This object would be defeated if the interpretation of Shri G.P. Singh is accepted.
16. The Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952, fallows closely the draft of the Uttar Pradesh Zamindari Abolition and Land Reforms Act (No. 1 of 1951). Section 4 of the U. P. Act provides for the vesting of the lands of zamindars in the State from all encumbrances. The section corresponding to this section in the V. P. Act is Section 5 which does not refer to vesting of lands. That matter is dealt with in Clause (a) of Section 6, which, is similar to that clause in the U. P. Act.
Clause 6(g) in both the Acts is similarly worded and it provides for the substitution of a mortgage with possession by a simple mortgage. In the U. P. Act, however, we find the words "without prejudice to the rights of the State Government under Section 4" which do not occur in the Corresponding section in the V, P. Act. The reason appears to be that Section 4 of the U. P. Act and Section 5 of the V. P. Act are differently worded. It is the omission of these words in the V. P. Act which has led to the difficulty of interpretation,
17. Shri G.P. Singh relics upon the decision, in Ram Kissendas v. Satya Charan, AIR 1950 PC 81, where in interpreting two conflicting Articles of Association of a Company (viz., Arts. 109 and (126), their Lordships suggested that the words "subject to Article 126" or "notwithstanding anything contained in Article 109" should be inserted to give effect to both the Articles. Shri Singh suggests that some such words will have to be added in Clause (g) of Section 6 of the V. P. Abolition Act to reconcile it with Clause (a).
18. We may state that in Section 6 of the V. P. Abolition Act, the second sub-section providing that the State Government shall not be liable for payment of debts incurred by the jagirdar before the date of resumption does not occur in the U, P. Act. Clause (a) which precedes Clause (g) and subsection (2) which follows Clause (g) clearly show that Clause (g) was not intended to take effect in spite of these two provisions. On the contrary, Clause (g) was intended to be subject to them. If any words are necessary to be added to Clause (g) to remove the conflict, we would insert the words "subject to the provisions of Clause (a) and Sub-section (2)", as this would be in consonance with the draft of the U. P. Act which has been adopted in the V. P. Act.
19. The words "shall be deemed to have been substituted" used in Sub-section (2) of Clause (g) imply the creation of a legal fiction. In State of Bombay v. Pandurang, AIR 1953 SC 244, their Lordships observed the following in connection with legal fictions :
"When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion."
The fiction in the instant case is created between the mortgagor and the mortgagee and the object of creating the fiction is to exonerate the State Government from any liability for the debt. The implication of substituting a mortgage with possession by a simple mortgage is that a simple mortgage as defined in Section 58 of the Transfer of Property Act comes into existence. Under that section, a personal liability is a necessary ingredient of a simple mortgage.
It necessarily follows from the legal fiction that the appellants become personally liable for the debt. Further, under Section 68 of the Transfer of Property Act, a mortgagee is entitled to bring a suit for the recovery of the amount personally from the mortgagor if the security is destroyed. In the instant case, the security was destroyed by the vesting of the property in the State. Accordingly, the mortgagee had a right to sue for recovery of the amount. The suit was, therefore, tenable.
20. In the end, Shri G.P. Singh requested that the instalments to pay the mortgage debt should be granted to the appellants in consideration of the fact that the compensation money is payable by instalments. Such a plea was not raised before the trial Court, The discretion of the Court in granting instalments depends upon several questions of fact. In the absence of pleadings, it is not possible to grant the relief prayed for.
21. In the result, all the three appeals are dismissed with costs.