dedol-hf/india-case-legal-rag huggingface dataset:
255
which  past transactions were not allowed to be affected  by
the repeal. Eventually the rule of common law was completely
abrogated by the enactment of the Interpretation Act,  1889.
In India in the year 1868, section 6 of the General  Clauses
Act  enacted  what was later on enacted in  England  in  the
Interpretation Act and for over eighty years it is this rule
of  construction that has been adopted in this country,  the
rule being that past transactions, whether closed or  incho-
ate  cannot be affected by the repeal of an earlier  statute
or  by the coming into effect of a new one. In  my  opinion,
the  rule  contained in the General Clauses Act and  in  the
English Interpretation Act is more in consonance with reason
and justice and is also a rule of convenience and should  be
followed in this country, in preference to the rule  evolved
by  the English Judges in the earlier part of English  legal
history.  Be that as it may, it is unnecessary in this  case
to  have resort either to the rule of common law or  to  the
General  Clauses  Act as the language of article  13  itself
furnishes a solution to the problem.
    Reference  was  also made to the  rule  of  construction
applicable  to  temporary  statutes.  In the  case  of  such
statutes,  the rule of English law is that after the  expiry
of the life of the statute no action can be taken under  the
expired statute unless an intention can be gathered from its
provisions  to the contrary, but transactions  already  com-
pleted  during the period that these statutes had the  force
of  law are not in any way affected. That rule seems  to  be
quite logical and is consonant with reason and justice. When
the  life  of  a statute is limited and it  dies  a  natural
death,  then no question either of its retrospective  or  of
prospective  nature arises. If the intention of the  statute
was  that  anything done under it has to continue,  then  it
will be allowed to continue; otherwise nothing done under it
will be continued after its natural death. Any rule applica-
ble to construction of such a statute has no application  to
the  interpretation  of the Constitution of  India  and  the
reference  to this rule, in my opinion, is not relevant  for
the decision of this
256
    Reference was also made to the rule of construction laid
down   by  the  American courts in respect of  statutes  de-
clared void because of their being repugnant to the  Consti-
tution of the United States of America.  It is obvious  that
if  a statute has been enacted and is repugnant to the  Con-
stitution,  the  statute is void since its  very  birth  and
anything done under it is also void and illegal.  The courts
in America have followed the logical result of this rule and
even convictions made under such an unconstitutional statute
have  been  set  aside by issuing appropriate  writs.  If  a
statute  is  void from its very birth   then  anything  done
under  it, whether closed, completed, or inchoate,  will  be
wholly illegal and relief in one shape or another has to  be
given  to  the person affected by such  an  unconstitutional
law. This rule, however, is not applicable in regard to laws
which were existing and were constitutional according to the
Government  of  India Act, 1935.  Of course, if any  law  is
made after the 25th January, 1950, which is repugnant to the
Constitution, then the same rule will have to be followed by
courts  in India as is followed in America and even  convic-
tions  made under such an unconstitutional law will have  to
be  set aside by resort to exercise of powers given to  this
court by the Constitution.
    The  only  rule of construction applicable to the inter-
pretation of article 13 of the Constitution is the one  that
concerns the determination of the question whether a statute
is  intended to have any retrospective operations.   If  the
well-known canons of construction on this point are applied,
then  it has to be held that article 13 was not intended  to
have  any retrospective effect whatever; on the other  hand,
its language denotes  that it recognized the validity of the
existing  laws  up to the date of the  commencement  of  the
Constitution and even after its commencement except  to  the
extent of their repugnancy to any provisions of Part III  of
the  Constitution.  On this construction of  article  13  it
cannot  affect  any  past transactions,  whether  closed  or
inchoate.  Reference in this connection may be made  to  the
provisions of
257
article  372(2) of the Constitution. Under this article  the
President has been given power to adapt existing laws and to
bring them in accordance with the articles of the  Constitu-
tion  by a process of amendment, repeal or  adaptation.  The
President  could have repealed the Press (Emergency  Powers)
Act and brought the law in accordance with the provisions of
Part  III of the Constitution and if he had used the  powers
of  repeal given to him by  this article, the provisions  of
the General Clauses Act would have been immediately attract-
ed  to  that situation and the pending  prosecution  of  the
appellant would have to be continued in view of those provi-
sions.   If in that situation the Constitution  contemplates
the continuance of pending proceedings under existing  laws,
it becomes difficult  to place a different interpretation on
the  phraseology employed in article 13(1) of the  Constitu-
tion,  than the one that is in accord with  that  situation.
By the construction that I have placed on this article  that
incongruous result is avoided.
    In view of the decision above arrived at it seems unnec-
essary  to  pronounce  on the alternative  argument  of  the
learned Attorney-General to the effect that the expression '
'void', used in article 13 of the Constitution is synonymous
with  the word "repeal" and that it was an apt word used  in
the  context  to indicate the same intention.  It  was  said
that  the  word  "repeal" was not used in  the  article  but
instead  the expression "void" was employed therein  by  the
draftsmen  in  order to include within its  ambit  cases  of
custom  and  usage  where such custom and  usage  were  also
repugnant to the provisions of Part III of the Constitution.
It was also urged that by article 13 (1)the Constitution  in
express terms repealed all laws inconsistent with its provi-
sions and that the only power given to the court was to find
out which of these laws was inconsistent with the provisions
of  Part III.  The declaration that these laws were void  or
repealed  was by the force of the provisions of  article  13
itself  and did not result from the decision of the  courts.
It is also unnecessary to examine  the further  argument  of
the  learned
258
Attorney-General that in any case since 1868 in this country
the rule of construction of statutes is the one laid down by
section  6 of the General Clauses Act,1868, and that  though
in  express terms that statute may not be applicable to  the
construction of article 13(1) of the Constitution, yet  that
rule  is a rule of justice, equity and good  conscience  and
has  become a rule of common law in this country and  should
be  applied even to cases where statutes become void by  rea
son  of their being repugnant to the Constitution.
      For the reasons given above I see no force in this
appeal and I would accordingly dismiss it.
    MUKHERJEA  J.-I  am in entire agreement  with  the  view
taken by my learned brother Fazl Ali J. in his judgment  and
I concur both in his reasons and his conclusion.
Appeal dismissed.
Agent for the appellant: P.G. Gokhale.
Agent for the respondent: P.A. Mehta.
PETITIONER:
RAMNANDAN PRASAD NARAYAN SINGH
        Vs.
RESPONDENT:
MAHANTH KAPILDEO RAM JEE ANDANOTHER(and 3 other appeals)
DATE OF JUDGMENT:
12/01/1951
BENCH:
AIYAR, N. CHANDRASEKHARA
BENCH:
AIYAR, N. CHANDRASEKHARA
KANIA, HIRALAL J. (CJ)
SASTRI, M. PATANJALI
CITATION:
 1951 AIR  155            1951 SCR  138
 CITATOR INFO :
 D          1963 SC1503  (19)
ACT:
    Bihar  Money-lenders  (Regulation of  Transactions)  Act
(VII of 1939), s. 7--Execution of fresh document for  amount
remaining due on loan under earlier document--Suit on  later
document--Interest before date of suit--Maximum amount  that
could  be  decreed--Whether  to be calculated  on  basis  of
earlier or later document--" Amount of loan mentioned in, or
evidenced by, such document" meaning of.
HEADNOTE:
Where a fresh document is executed for the amount  remaining
due  on account of principal and interest under a  loan  ad-
vanced prior document, and a suit is brought for recovery of
the  amount due under the later document with  interest  due
thereunder,  "the amount of loan mentioned in, or  evidenced
by,  such  document" for the purposes of s. 7 of  the  Bihar
Money-Lenders      Regulations and Transactions) Act,  1939,
is the amount mentioned, or evidenced by, the later document
and  not that mentioned in the original document  which  was
renewed;  and the court can pass a decree for an  amount  of
interest  for  the period preceding the institution  of  the
suit,  which together with any amount realised  as  interest
after  the date of the later document, is not  greater  than
the  amount  of loan mentioned in the later  document.   The
maximum  amount  that can be so decreed is  not  the  amount
which  together with the interest realised from the date  of
the original loan does not exceed the original loan.
    Singheswar  Singh and Other's v. Nadni Prasad Singh  and
Others (A.I.R. 1940 Pat. 65), Lal Singh v. Ramnarain Ram and
Others  (,A.I.R  1942 Pat- 138), Madho Prasad Singh  v.  Mu-
kutdheri Singh and Others (193 I.C. 661), Deo Nandan  Prosad
v.  Ram  Prasad    (I.L.R 23 Pat. 618),  Ram  Nandan  Prasad
Narain  Singh  v. Kulpati Shri Mahanth  Goshwami  Madhwanand
Ramji ([1940] F.C.R. 1), Surendra Prasad Narain Singh v. Sri
Gajadhar Prasad Sahu Trust Estate and Others ([1940]  F.C.R.
39) referred to.
JUDGMENT:
APPELLATE JURISDICTION: Civil Appeals Nos. 98,
99, 100 and 101 of 1950.
139
    Appeals from the orders of the High Court of  Judicature
at  Patna (Manohar Lall and Imam JJ.) in  Miscellaneous  Ap-
peals Nos. 108 to 111 of 1948.
Shambhu   Barmeswar  Prasad  and      Ramanugrah Prasad  for
the appellants.
H.J. Umrigar for the respondents.
1951.  January 12.  The Judgment of the Court was  delivered
by
CHANDRASEKHARA  AIYAR  J.-- The decision of these  four  ap-
peals,  which are connected with each other and  which  have
arisen out of orders made by the High Court of Patna in four
Miscellaneous  Appeals,  depends on  the  interpretation  of
section 7 of the Bihar Moneylenders (Regulation of  Transac-
tions) Act, 1939.
    The facts which have led to the appeals are found brief-
ly stated in the petition filed by the present appellants in
the 3rd Court of Sub-Judge, Patna, and may be re-stated here
for convenient reference :--
    "The father of the petitioners borrowed Rs. 40,000  from
the  guru  (ancestor) of the  decree-holder  under  mortgage
bond, dated 11-1-1893.
    Out of Rs. 40,370-7-6 interest and compound interest  up
to  4-1-1910,  Rs. 32,370-7-6 was paid in cash and  for  the
balance  Rs. 8,000 interest and Rs. 40,000 principal,  i,e.,
for  Rs,  48,000 a Mortgage Suit No. 14 of  1910  was  filed
in1st  Court  of the Sub-Judge, Patna, and in  lieu  of  the
claim  and  cost of the said suit two fresh  mortgage  bonds
were executed on 11-7-1910, viz., one for Rs. 40,000 and the
other  for  Rs. 9,488 and the latter bond was  satisfied  by
payment of Rs. 15,835 in cash.
    With  respect  to the above bond of  Rs.  40,000,  dated
11-7-1910 the petitioners paid Rs. 38,530-13-6. Mort-,  gage
Suit  No.  110 of 1927 was brought in the 3rd Court  of  the
Sub-Judge, Patna, and a decree for Rs. 58,012-2.0 was passed
on 9-7-1929. Out of this Rs. 5,000 was paid in cash and  for
the  balance  of  Rs. 53,012-12-0 one  mortgage  bond  dated
6-10-1931  was executed for Rs. 42,000 and on the same  date
two
140
hand-notes  were executed, viz., one for Rs. 5,000  and  one
for Rs. 6012-2-0.
    One  Suit  No. 14 of 1933 for both  the  hand-notes  was
brought  in 3rd Court of the Sub-Judge and a decree for  Rs.
15,008-2-0 was passed on 28-2-1935.
This decree is under execution."
When  the  decree-holder  sought to  execute  the  money
decree   by   attachment and sale  of  the  judgmentdebtors'
properties stating that they were subject to a mortgage lien
of Rs. 62,272-13-0 under the mortgage bond dated  6-10-1931,
the two judgment-debtors, who  are  brothers,  filed  objec-
tions  under  sections 11  and  16 of  the   earlier   Bihar
Money-lenders  Act III of 1938 and section 47 of  the  Civil
Procedure  Code.  The petitions (two by each of  them)  were
filed  separately  by  the  brothers.   They urged that on a
proper  calculation under section 11 no lien was  subsisting
on the properties owing to payments made towards the   mort-
gage  debt   amounting  to Rs. 92,394-2-0.  The  Subordinate
Judge held that this plea of the judgment-debtors could  not
be entertained in the Miscellaneous case before him relating
to  the execution and all that could be done was  to  notify
the mortgage encumbrance without deciding anything as to the
correctness  of the amount claimed to be due under  it;  and
this conclusion was partly based on the fact that section 16
of  the Act had been declared by the High Court  void.   Ap-
peals   taken  to  the  High  Court  were  dismissed.    The
judgment-debtors thereupon preferred an appeal to the Feder-
al  Court, contending that sections 7 and 13 of the new  Act
(corresponding  to  sections 7 and 11 of  the  old  Act)were
applicable and that it was the duty of the court to estimate
the value of the property after making the necessary  calcu-
lations  under  section 7 with reference to  the  lien.  The
decision  of  the  Federal Court is  reported  in  Ramnandan
Prasad  Narain Singh and Another v. Kulpati   Shri   Mahanth
Goshwarni  Madhwanand Ramji(1).  The case was remitted  back
to the High
(1) [1940] F.C.R. 1
141
Court, giving liberty to the appellants to file an  applica-
tion under section 13.
In  answer  to a fresh application for  execution  dated
2-7-1042,  the  two brothers filed the  same  objections  as
before.  Miscellaneous Cases Nos. 45 and 46 of 1942  related
to  sections  7 and 13 of the Bihar  Money-lenders  Act  and
Miscellaneous  Cases Nos. 50 and 52 of 1042 related  to  the
objections under section 47 of the Code of Civil  Procedure.
The  Subordinate  Judge  held that the amount  of  the  loan
should be taken as the amount mentioned in the mortgage deed
of  1931 and not the amount advanced in 1893 and that a  sum
of Rs. 70,840 was still due on the bond.  He determined  the
market  value of the several properties given  as  security,
adopting 16 times the net income as the basis.
    Appeals  to the High Court were numbered as M.A. 108  to
111 of 1943 and they were heard by Manohar Lall and Imam JJ.
They  modified the order of the lower Court in  certain  re-
spects.   Even according to them the amount of the loan  was
what  was mentioned in the mortgage bond      of  6-10-1931,
but  as a sum of Rs. 11,855-3-0 had been   repaid  expressly
towards  the principal amount after   the date of the  bond,
that  amount became reduced to Rs. 28,150.  Adding an  equal
sum  by  way  of interest which according to  them  was  the
maximum  amount, permitted to be allowed under section 7  of
the Act, the total liability was stated to be Rs. 56,300 and
a charge was declared on the property for this amount.  They
also  directed that the valuation of the property should  be
fixed at twenty times the net income and not sixteen  times.
It  is  from this order that the present appeals  have  been
preferred.
    Two  points  were  urged on behalf  of  the  appellants,
namely  (a) that the decree-holder was barred  by  construc-
tive  res-judicata  from contending that   the  construction
placed upon section 7 by the judgmentdebtors was wrong;  and
(b) that in applying section 7, we must consider the  origi-
nal amount of loan of Rs. 40,000 given in the year 1893  and
allow the claim
142
of  interest  only for that maximum sum, after  taking  into
account all sums paid by the appellants and their  predeces-
sors towards interest since 1893.
    The first point is entirely without substance. When  the
decree-holder contended that section 11 of the Bihar  Money-
lenders  Act,  1938, was declared void and ultra  vires  and
that  therefore section 7 of the new Act which  corresponded
to  section 11 was also inapplicable,  the  judgment-debtors
pleaded that they were entitled to the benefit of section  7
of  the new Act. The Federal Court held in Ramnandan  Prasad
Narain  Singh and Another v. Kulpati Shri  Mahanth  Goshwami
Madhwanand  Ramji(1)  that  the   judgment-debtors  (present
appellants) were entitled to claim the benefit of the provi-
sions  of  the new Act when the  executing  court  proceeded
under section 13 to determine the value of the properties to
be sold.  The correct interpretation of section 7 was not in
question  between the parties.  To say that  the  appellants
were entitled to take advantage of the provisions of section
7 is entirely different from the contention that the  inter-
pretation  sought  to be put by them on section  7  was  the
right  one.   The  Federal Court was not  dealing  with  any
question of interpretation at all.  It is impossible to  see
where the doctrine of constructive res judicata comes in, so
as to be of help to the appellants.
    The  second question raised on their behalf  relates  to
the  true  meaning of section 7 of  the  Bihar  Moneylenders
(Regulation  of Transactions) Act VII of 1939, which  is  in
these terms:---
    "7.   Notwithstanding   anything to the   contrary  con-
tained  in any other law or in anything having the force  of
law or in any agreement, no Court shall, in any suit brought
by  a money-lender before or after the commencement of  this
Act  in respect of a loan advanced before or after the  com-
mencement  of  this Act or in any appeal or  proceedings  in
revision  arising  out of such suit, pass a  decree  for  an
amount of interest for the period preceding the  institution
of the suit,
(1) [1940] F.C.R. 1.
143
which together with any amount already realised as  interest
through the court or otherwise, is greater than the   amount
of  loan advanced, or, if the loan is based on  a  document,
the  amount  of  loan mentioned in, or  evidenced  by,  such
document."
    In the present case, the original loan of Rs. 40,000 was
advanced  as early as 11-1-1893.  The appellants  j  contend
that  for  the purposes of calculating the  interest  to  be
decreed prior to the date of the suit the loan advanced must
be  taken to be the original sum and that if an  account  is
taken  of all the sums received by the creditor as  interest
from  that date up to the date of the suit, there  would  be
nothing  due  for interest. On the other hand,  the  decree-
holder  urges that having regard to the latter part  of  the
section,  the loan must be taken to be the amount  mentioned
in  the  mortgage bond dated 8-10-1931, namely  Rs.  42,000.
Whichever  method  of  calculation is adopted,  it  must  be
remembered  that it has to be made not for the  purposes  of
passing any decree on the mortgage loan, but for  estimating
under  section 13 of the Act the value of the properties  to
be brought to sale in execution of the money decree  against
the appellants.
    As  pointed out by  Sir Maurice Gwyer C.J.  in  Surendra
Prasad Narain Singh v. Sri Gajadhar Prasad Sahu Trust Estate
and  Otherse),   "Section 7 of the Act of 1937 is  no  doubt
extremely obscure and illdrawn."  The true intention of  the
framers of the Act is somewhat difficult to gather.  But the
Patna  High  Court has been consistently  placing  upon  the
section an interpretation which is opposed to the contention
of the appellant in these proceedings.
   The point  came  up expressly for decision  in  Singhesh-
war  Singh  and Others v. Madni Prasad  Singh      Others(2)
where a mortgage bond was executed on 31-8-1922 for a sum of
Rs. 2,000 which was the balance of the principal and  inter-
est due-under a mortgage bond of the 11th of October,  1912,
for
   (1) [1940] F.C. R. 39
(2)A.T.R. 1940 Pat. 65.
   19
144
Rs.  1,391.  The  judgment  debtors  raised  the  plea  that
the  court  should  go  back to the  earlier  bond  of  1912
and  that as a sum of Rs. 1,512 had been paid as and by  way
of  interest  towards that bond, no decree could  be  passed
against them for more than the principal  sum of Rs.  1,391.
The  learned Judges rejected this  contention and  took  the
amount stated in the document of 1922, namely Rs. 2,000,  as
the loan and they    held that the plaintiffs were  entitled
to  get a decree    for interest for a sum not  larger  than
Rs.  2,000 as no  payment had been proved to have been  made
after   the execution of the bond. The same view  was  taken
in Lal Singh v. Ramnarain Ram and Others(1) and  the  plain-
tiffs  were awarded a decree on the basis that the loan  was
to be taken as Rs. 2,909-8-0 which was  the amount for which
the  hand-note  sued upon was  executed and  not  Rs.  1,000
which  was  the  original amount advanced  upon  an  earlier
hand-note  of  the   year 1924. The case reported  in  Madho
Prasad  Singh  v. Mukutdhari Singh and Others(2)  lays  down
the  same  position.  The Full Bench decision in Deo  Nandan
Prasad  v.  Ram  Prasad (3)  rei-terates  the   same   view,
pointing  out the distinction between sections 7 and  8   of
the Act and stating that while under section 8 we can go  to
the  original loan in spite of a later  document,      under
section  7, the loan must relate to the document   on  which
the  suit is based, that is, the final document and not  the
original one. In each one of these cases, the   question  of
the true meaning of section 7 was pointedly      considered.
This construction no doubt enables a creditor to  circumvent
the beneficent provisions of the    Act by taking a document
for the interest due and adding it to the principal  amount.
Gwyer C.J. points out this difficulty at page 59 in the case
Surendra  Prasad  Narain Singh v. Sri Gajadhar  Prasad  Sahu
Trust  Estate and Others(4). If the interpretation does  not
carry out the intentions of the framers of the Act by reason
of  unhappy  or  ambiguous phrasing, it  is  for  the  Legis
lature to intervene.  But far from doing so, it has
(1) A.I.R. 1942 Pat. 138,139.      (3) I.L.R. 23 Patna 618.
(2) (1941) 193 I.C.661.            (4) [1940] F.C.R.39.
145
acquiesced, during all these years in the construction which
the Patna High Court has been placing upon the section  from
the  very  next  year after the enactment  of  the  statute.
Having  regard  to the great obscurity in the  language  em-
ployed  in the relevant provisions and the inaction  of  the
Legislature, it is, in our opinion, legitimate to infer that
the view expressed by the Patna High Court is in accord with
the intention of the Legislature.
The appeals fail and are dismissed with costs, only  one
set in all of them together.
                            Appeals dismissed.
Agent for the appellants: Tarachand Brij Mohanlal. Agent for
the respondent': R.C. Prasad.
PETITIONER:
RAMJILAL
        Vs.
RESPONDENT:
INCOME-TAX OFFICER, MOHINDARGARH.
DATE OF JUDGMENT:
12/01/1951
BENCH:
DAS, SUDHI RANJAN
BENCH:
DAS, SUDHI RANJAN
KANIA, HIRALAL J. (CJ)
FAZAL ALI, SAIYID
SASTRI, M. PATANJALI
MUKHERJEA, B.K.
CITATION:
 1951 AIR   97            1951 SCR  127
 CITATOR INFO :
 D          1952 SC 115  (7)
 D          1954 SC 297  (10)
 R          1955 SC   3  (5)
 F          1955 SC 661  (6)
 RF         1959 SC 149  (52)
R          1959 SC 395  (28)
 RF         1961 SC  65  (5,37)
 RF         1961 SC 232  (16,37)
 R          1961 SC 552  (32)
 RF         1962 SC1006  (34,72,75,80,81)
 O          1962 SC1563  (15)
 RF         1962 SC1621  (12,31,44,46,122,165)
 R          1963 SC 630  (25)
 R          1966 SC 619  (7)
 R          1970 SC 470  (33)
 RF         1971 SC 870  (10)
 D          1974 SC1105  (12)
ACT:
    Constitution of India, Arts. 14, 31 (1), 32,265--Patiala