(1.) THE following question has been referred to this Full Bench for reply; - "whether the rule of Damdupat as recognised by Hindu Law, in the absence of any statute, is of binding force and/or can be given effect to in this State?"
(2.) WE may briefly refer to the circumstances in which this question has arisen. A suit was filed by Daulatram and others against Thakur Sheokaransingh for recovery of a sum of Rs. 18,500/ -. In that connection, the question arose whether the plaintiffs were entitled to the amount that they claimed in the face of the principle of Damdupat which was aside to be in force in the former State of Marwar. The question came up before a Division Bench of this Court which has made this reference to a Full Bench, as the point is of considerable importance and is likely to arise in many cases, and it was thought desirable that the law should be laid down authoritatively.
The question, that has been put to us for answer, may be broken up into two parts. In the first place, we have to decide whether the principle of Damdubat was in force in the former State of Marwar. Then comes the next question whether, even if it be that the principle was in force, it can be given effect to now in the area with which was comprised in the former State of Marwar.
The principle lor rule of Damdupat is said to be a branch of Hindu Law of debts and, according to this rule, the amount of interest recoverable at any one time cannot exceed the principal. The rule, however, is not applicable anywhere in what was formerly British India except the following places: - (i) The town of Calcutta, (ii) The State of Bombay, (iii) Berar, (iv) Santhal Parganas. It is also clear that the principle of Damdupat as a branch of Hindu Law of Debts was not applied as a principle of Hindu Law even where it is applicable in other parts of India. In the town of Calcutta it was applied because of a special provision in Statute 21, George III, c. 70, s. 13 which enjoyed upon the Supreme Court of Fort William to determine "all matters of contract and dealing between party and party in the case of Gentus by the laws and usages of Gentur. " The Calcutta High Court therefore held that so far as the town of Calcutta was concerned, the rule of Damdupat applied as between Hindu in view of this provision of Statute 21. At the same time, it was made clear that the rule did not apply to the rest of Bengal outside the town of Calcutta (See Nobin Chunder Bannerjee vs. Romesh Chunder Ghose (1) ).
In Bombay the rule was applied to the City of Bombay for the same reason as in Calcutta. As to the rest of the Bombay State the rule was originally applied by Bombay Regulation No. V of 1827, and though that Regulation seems to have been repealed, the rule is still in force (vide not (1) at page 16 of Mayne's Hindu Law 11th Edn. ).
In Berar it appears that there has been a practice from time immemorial to apply the rule of Damdupat to all debt cases (See Jairam vs. Debidayal Surajprasad (1) ).
In Santhal Parganas its application is by Statute Law.
Though therefore Damdupat in text books of Hindu Law is a rule of Hindu Law of Debts, it is not in force in any part of India now as a principle of Hindu Law. The reason is that Hindu Law, as no enforced by courts of Law. is confined only to matters of personal law, while the question of interest is not a matter of personal law, but of civil law generally. Wherever therefor the rule of Damdupat is applicable, it is applied by virtue of a statue or custom, and not as a branch of Hindu Law. As stated by Mayne at page 16, Hindu Law is now applied only as a personal law, and the courts are required to apply it in cases where the parties are Hindus in deciding any question regarding succession, inheritance, marriage of caste or any religious usage or institution. Questions relating to adoption, minority and guardianship, family relations, wills, gifts and partitions are also governed by Hindu Law. So are liabilities for debts and alienations other than gifts and bequests. But the question of interest is not governed by the principles of Hindu Law at present, and is a question purely of civil law. This aspect is of importance, and will have to be borne in mind when we consider whether the rule of Damdupat as known to Hindu Law, can now be applied in this State.
We now turn to the question whether this rule was in force in the former State of Marwar.
(3.) IN Poona vs. Moola (3) it was held that according to the principle of Damdupat the plaintiff could not claim a larger sum on account of interest than the principal.
In Mangilal vs. Bansidhar (4), it was held that the rule of Damdupat applied to mortgage debts. This case also shows that in Marwar this rule was being applied as far back as 1925. It was again applied in 1927, and then in 1932. The same view was taken in Mst. Siraykanwar vs. Molabux (5 ).
There is not a single case on the other side. It is true that there is no rule or law made by the Ruler of the former State of Marwar applying this principle. But the courts in Marwar were apparently always applying this principal whenever it could be properly applied. Further, it is clear from the observations in 1941 M L. R. 194 (c) that the rule of damdupat applied only when the original debtor was a Hindu but not otherwise. In view, therefore, of these uninterrupted judicial precedents, it must be held that the rule of damdupat was applied in what was the former State of Marwar in accordance with the principles of Hindu Law as between Hindus.
This brings us to the question whether the rule can now be applied in this State in the absence of any Statute The contention on behalf of the plaintiff respondent is that the rule cannot now be applied in view of Art. 14 and 15 of the Constitution. We shall first deal with the effect of Art. 15 (1) which is as follows - "the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. " The argument is that the law of damdupat as prevalent in the former State of Marwar was applicable only where the parties were Hindus, or, at any rate, the original debtor was a Hindu. It was not applicable where the parties were say Mohammedans or Christians, or, at any rate, the original debtor was a Mohammedan or Christian. The result was that where the debtor was a Hindu, he was entitled to whatever benefit the rule of damdupat might confer, but if he was a Christian or a Mohammedan, he was not so entitled. If the same principle is to be applied now, the result would be at a clear discrimination on the ground of religion would arise between citizen and citizen in this part of India, and this is specifically forbidden by Art. 15 (1) which lays down that State shall not discriminate against any citizen on the ground of religion only. We are of opinion that there is force in this argument. Interest being a question of civil law generally and not a question of personal law of any class of citizens in this country, the State cannot now enforce a rule which discriminates against certain classes of citizens i. e. Mohammedans and Christians on the ground of their religion. The result of enforcing the law of damdupat now would be that if the parties are Hindus a certain benefit would be conferred on the debtor. But if the parties are not Hindus, but belong to some other religion, the benefit, if any, of the rule of damdupat would not be conferred on the debtor. In enforcing the rule of damdupat, therefore, as between Hindus, or, at any rate, in cases where the debtor is a Hindu, the State will clearly be discriminating against non-Hindus on the ground of their religion. The rule of damdupat therefore, as known to Hindu Law, is now clearly hit by Art. 15 (1) of the Constitution, and as such would be void under Art. 13 (l ). It follows, therefore, that the courts cannot now enforce the rule of dampupat as recognised by Hindu Law in any part of this State in the absence of any Statute. The question whether even a Statute could be enforced which made such a discriminating provision is another matter which need not be considered at present. But the rule of damdupat, as it was in force in the former State of Marwar, cannot now have any binding force, and cannot be applied by courts in view of the provisions of Art. 15 (1),