Case: Gulam Abbas &amp; Others Vs. Mulla Abdul Kadar (Dead) Through His Executors &amp; Others

1. The relevant facts from which the said suit arose are as follows :2. By a deed of mortgage, dated December 29, 1899 one Yusufali and his two brother mortgaged in favour of one Yarmohammad Khan their two shops at Jaora. The mortgage being usufructuary, the mortgagee was delivered possession of the two shops. The said Yarmohammad died in 1909, whereupon his rights in the mortgaged properties devolved upon his daughter. The daughter also died in 1918 and her interest devolved upon her husband, one Nawab Iftikharali. He was in possession of the shops till 1945 when he purported to sell them to appellants. On September 21, 1947 the respondents, claiming to be the successorsof the mortgagors, filed the suit from which this appeal arises, against the said Nawab and the appellants, who claimed to be the purchasers of the said two shops from him.3. The Trial Court decreed the suit and an appeal against that decree by the appellants was dismissed. The appellants thereupon filed a second appeal in the High Court which was allowed by a learned Single Judge who dismissed the respondents suit as barred by the law of limitation applicable in the then State of Jaora. The respondents took out a review petition against the said decision on the ground that it suffered from in error apparent on the record in the sense that the learned Single Judge has failed to consider a provision of law embodied in Circular No. 25, dated May 1, 1910 which had the effect of amending the law of limitation then in force in the State and under which the respondents suit was within time. The learned Single Judge who heard the second appeal being no longer on the Bench of the High Court, the review petition was heard by Division Bench. The Division Bench set aside the decision giving effect to the said circular and holding in the result that the respondents suit was not barred by limitation and restored the decree passed by the Trial Court and confirmed by the first Appellate Court.4. The Judgment in the second appeal, heard by the learned Single Judge, shows that besides the question as to limitation, the appellants had also raised the question of adverse possession by them. But, as the learned Single Judge has observed in clear terms, this was not pressed before him. The only question, therefore, he and the Division bench which heard the review petition were called upon to decided was on relating to limitation.5. The said deed of mortgage provided that the two shops mortgaged thereunder were to be in possession of the mortgagee. It appears, however, that the shops at the time were let out because the deed itself provides that the interest on the mortgaged sum, which was settled at 12 annas per cent. was to be paid out of the rent fetched by the two shops. The shops fetched a rent of Rs. 40/15/per month out of which the mortgagee was to appropriate Rs. 33/12/per month in lieu of interest and the balance was to be paid by the mortgagee to the mortgagors. In the event of the rent falling short of that amount the mortgagors agreed to make good the shortage. The deed lastly provided : "The time of redemption of mortgage is settled to be that when we pay the entire mortgage money and other miscellaneous expenses in lump sum to the mortgagee and get out shops redeemed". No time for redemption having thus being provided in the deed, the mortgage amount, would be due and payable at once, i.e., from the date of the execution of the mortgage deed.

Reasoning:
6. There is no doubt that the State of Jaora had its own law of limitation promulgated through various circulars and orders. This is clear from Section 12 of the Jaora State Limitation Act promulgated by the Ruler of the State on April 14, 1909. That section recites that prior to the enactment of the Act the period of limitation was uniformly 12 years for all suits whatever their nature. That being so, even if the time for limitation were to commence from the date of the execution of the mortgage, a suit for redemption by the mortgages was not barred when the Jaora State enacted the Limitation Act on April 14, 1909. The period of limitation being 12 years for every kind of suit, a suit for redemption by the mortgagors in the present case would not have been barred till December 29,seems that the Indian Limitation Act of 1908 was applied to Jaora State in 1945. But the application of the Act could not have the effect of extending the period of limitation to 1947 when the present suit was filed as by that time the respondents right of filing the suit was alreadytle of the mortgagee had already acquired a right against such a suit being validly filed against them.But the argument on behalf of the appellants was that the circular did not amount to a law or a provision having the force of law as there was inherent evidence in the circular itself to show that it was issued only as and by way of administrative instructions.The argument is, in our view, unacceptable. If the law of the State, as it then prevailed, was that the limitation for redemption suit not having been specifically provided for in the 1909 Act, the residuary Article 48 applied and the limitation thereunder would be 6 years, the Ruler could not have issued administrative instructions to the Courts contrary to or in violation of such of law to hold that despite the said provisions the limitation should be reckoned in such suits from the date of the expiry of the period of notice by the mortgagor to the mortgagee. The word instruction, appearing at the commencement of the circulars as translated, relied on in word aid, of the contention is not decisive, for, we are told that the hidayat in the original can mean both instruction and direction and the translator has used the word instruction and not direction while translating that word into English. But leaving aside this argument, there can be no doubt that the circular was issued by the Ruler in exercise of his legislative power and not as administrative instruction. That is clear if the circular were to be perused as a whole. So perused, it is clear that it was issued as "a general rule" on account of contradictory orders having been passed by the Courts of the State while dealing with documents of mortgages which did not specify or fix the period of redemption. That a Rules of a State enjoyed unlimited sovereign powers including the power to legislate isTherefore the Ruler of Jaora State had the power to amend or supplement by exercising his power of legislation the existing law within his territory. In our view the circular was such a legislative Act and saved the present claim from beingNo point was taken at any time of the suit being premature on the ground that no notice, as envisaged by the circular, was given by the respondents. That point, therefore need not detain us.11. Since an important amendment of the law of limitation was totally disregarded by the learned Single Judge, a review of his judgment and decision clearly lay as failure to consider an important provision of law materially affecting the result of the suit would be an error of law apparent on the face of the record. The Division Bench, therefore, was right in entertaining the review petition and on the strength of the said circular reversing the decision of the learned Single Judge.