Decided on September 25,1967

BHERA Appellant

Referred Judgements :-



- (1.)THIS is a second appeal by the defendant-mortgagee from the appellate judgment and decree of the District Judge, Partabgarh, dated 17th May, 1961. The District Judge by that decree partially accepted the appeal of Mst. Naraini Bai who was substituted for the original plaintiff, and dismissed the appeal of the appellant and modified the decree of trial court (Sub Divisional Officer, Nimbahera.) It was directed by the decree that the plaintiff shall get possession of certain fields on payment of Rs. 209/- only.
(2.)THE material facts may be stated as follows: - One Nathu son of Roopa Mali of Chhoti Sadri owned agricultural property described in para 1 of the plaint. He mortgaged the property with possession for Rs. 955/8/- in the Samvat year 1966 under a unregistered deed with Pannalal, Gopal, and Phoolchand Bohras of Chhoti Sadri. After the death of the mortgagees their widows Mst. Hangami, Mst. Tulchhi and Mst. Raji transferred mortgagee-rights in respect of two khasras Nos. 288 and 289 for Rs. 218/- to the defendant Bhera Lohar on Jeth Sudi 3 Samvat year 1965, under a deed which also was not registered. THE rest of the fields were sub-mortgaged by the above ladies with one Megha Gadri of Chhoti Sadri on the same date. Initially Hema son of Bakhta Mali claiming to be the heir of Roopa Mali filed a suit on 12/9/50 in the Court of Munsif at Chhoti Sadri against Moolchand, his wife Mst. Chandi Bai, Bhera s/o Churalal Luhar Kishan, Sitaram and Onkar Lal sons of Mangilal Gadri for the redemption of the agricultural holding. THE suit was subsequently transferred under orders of the High Court to the Court of the Sub Divisional Officer at Nimbahera. A question of proprietory title was raised in the case and the issue was referred for decision to the Munsif who gave a finding in favour of the plaintiff. During the pendency of the suit Hema plaintiff assigned his interest in the property to Heeralal Suthar of Chhotisadri, who was allowed to continue the suit under order 22, rule 10, Civil P. C. THE plaintiff settled the matter with the other defendants and with drew the claim against defendants Nos. I, 2, 4, 5, & 6. THE suit, however, proceeded against Bhera in respect of two fields Nos. 288 and 289 only. THE defendant Bhera denied the plaintiff's claim in toto and denied the mortgage and claimed possession since 1940. He also pleaded that he had planted some trees in the area. He also denied that the plaintiff was the heir of Nathu and that he had no right to file the suit. Various other pleas were taken.
The trial court framed 16 issues and after recording findings on some of them dismissed the plaintiff's suit as time barred. Heeralal who was substituted for the plaintiff Hema, having died after the decision of the case, his widow Mst. Naraini Bai filed an appeal in the Court of District Judge, Partabgarh. The district Judge, Partabgarh, by his judgment dated 22nd July, 1960 reversed the decision of the trial court on the point of limitation and accepting the appeal, remanded the case with a direction to the lower court to record finding on other issues after hearing the parties. The trial court after the remand, by its judgment and decree dated 16. 2. 1961, decreed the plaintiff's suit on payment of Rs. 318/ -. Both the parties filed appeal before the District Judge, Partabgah. The plaintiff's appeal was partially accepted, and the amount to be paid by her was reduced to Rs. 209/ -. The defendant's appeal was dismissed. The defendant Bhera has filed the present second appeal impleading Mst. Naraini Bai. Subsequently on an application by Rameshwar Lal he was substituted as respondent for Mst. Naraini Bai as being her assignee.

In the memorandum of appeal the defendant's counsel took a number of grounds but during the course of arguments, the only question argued before me was one relating to limitation and the main question debated was the applicability of Article 2 or Article 7 of Kanun Miyad Mewar, Act No. 2 of Samvat year 1988. Article 2 thereof provided 60 years limitation for suits for redemption and possession of immovable property. Article 7 provided for all suits between the mortgagor and the mortgagee on the basis of unregistered deeds 15 years limitation. The appellant contended that the present suit should be governed by Article 7 and it having been filed after the expiry of 15 years was barred by time. The plaintiff-respondent's case is that Article 2 providing for 60 years time governed the case and the suit was clearly within time. There is no controversy between the parties that the suit was time barred if Article 7 applied and was within limitation if Article 2 applied.

At the out set the counsel for the respondent brought to my notice that this Court had occasion to deal with two cases of redemption arising out of unregistered deeds and that in all the cases the period of limitation was treated as 60 years under Art. 2. These cases are S. B. Civil Second Appeal No. 59 of 1957, Sugan Chand vs. Chandmal and Mst. Deu, decided by this Court on 18. 10. 1962 (i) and Khublal vs. Maloom Singh (2 ). The counsel for the appellant, however, contended that these decisions can not be treated as authoritative and decisive as the controversy relating to the applicability of Art. 2 or Art. 7 was not raised and adjudicated upon in these cases. Without expressing any opinion on the binding nature of these decisions I have thought it proper to adjudicate upon the controversy sought to be raised in a pointed manner by the counsel for the appellant. Behind noting and dealing with the arguments at the Bar, it will be useful to refer to the relevant Articles of the Kanun Miyad Mewar (hereinafter referred to as the Act) Art. 1 of the Act provides 60 years limitation for suits for foreclosure of the mortgage property on the basis of registered deeds. This corresponds to Art. 147 of the Indian Limitation Act of 1908 with this difference that Art. 147 does not make any distinction in suits arising out of registered or unregistered documents. Art. 2 of the Act provides 60 years limitation for redemption and possession of immovable property mortgaged. This corresponds to Art. 148 of the Indian Limitation Act. Leaving Art. 3, which is not material for our purposes, Art. 4 of the Act provides 39 years limitation for suits for possession of movable property entrusted or mortgaged. Art. 5 of the Act provides 20 years limitation for possession of immovable-property and then Art. 7 provides for 15 years limitation for all kinds of suits between the mortgagor and the mortgagee on the basis of unregistered deeds. It may be incidentally pointed out that there was some suggestion during the course of arguments that the vernacular expression Genawat as used in the Mewar Limitation Act may also refer to the mortgage or pledge of immovable property. But, for the purposes of the present appeal, nothing materially turns upon the adoption of the wider or narrower connotation and, therefore, in referring to the various Arts. I have treated 'gemawat' as restricted to mortgages also.

Now, the first contention of Mr. Utsavlal for the appellant is that Art. 2 of the Act is applicable to only suits for redemption and possession of immovable property where the suits arise out of registered documents and that Art. 2 should be read as implying suits arising out of registered documents. His argument briefly put is that Art. 1 provides 60 years limitation for suits for foreclosure and sale arising out of registered documents and that suits for sale and foreclosure arising out of unregistered deed must fall within Article 7 and should be governed by the 15 years rule.

Now, the limitation for a suit for foreclosure or sale on the basis of unregistered documents being 18 years it cannot be accepted that the legislature could intend to prescribe 60 years limitation for the suits for redemption in cases arising out of unregistered documents. The rights of redemption could not continue after a decree for sale or foreclosure. It was therefore, argued that Article 2 should be read as referring to suits arising out of registered document. According to him, the legislature did not use the expression "arising out of registered documents" in Article 2 as it immediately followed Article 1 or there was an inadvertent omission. "

In answer, to this contention relying upon Nagendra Nath Dey and others vs. Suresh Chandra Dey and others (3), General Accident Fire & Life Assurance Corporation Ltd. v. Janmahomed Abdul Rahim (4) and J. K. Cotton Spinning & Weaving Mills Co. Ltd. vs. State of Uttar Pradesh and others (5), the counsel for the respondent contended that Article 2 must be interpreted on a consideration of the plain words of the Article and that there is no warrant or justification for reading into the words of the Article a limitation that the suit must arise out of a registered deed. The counsel also argued that Article 4 having provided 30 years limitation for the recovery of the movable property mortgaged even though on the basis of an unregistered document and Article 5 having provided 20 years limitation for immovable property even in cases of alleged claims of adverse possession it will be hardly in keeping with the scheme of the Act that the limitation for redemption of immovable property should be only 15 years.

A large number of cases were cited at the Bar on the rules relating to the interpretation of the statute some emphasising (l) the principle that the statutes should be read literally and that the words should be given their ordinary and natural grammatical meaning, others warning against a bare and mechanical interpretation of the words and application of the legislative intent devoid of concept of purpose (2 ). Some forbidding the reading of additional words in a statute, others justifying such a course at least in some contingencies.

Without entering into a detailed and elaborate examination of the numerous cases, I consider it proper to observe that it is not possible to discern any inflexible and rigid rule or a complete unanimity for one cannot fail to notice that even a generalised statement gets coloured by an emphasis on the aspects of the problem in hand with which the Courts are directly are indirectly concerned and that it is necessary to guard against confusion and error likely to result in blindly adhering to rules laid down in cases with reference to the facts of those cases. It will be proper to remember what Viscount Simonds said in this connection: - "since a large and ever increasing amount of time of the court has, during the last three hundred years, been spent in the interpretation and expositions of statutes, it is natural enough that in a matter so complex, the guiding principles should be stated in different language and with such varying emphasis on different aspects of the problem that support of high authority may be found for general and apparently irreconcilable prepositions. I shall endeavour not to add to their number. "

This being so, the correct approach is that while we should look to the rules formulated in the cases as guiding principle we should keep an eye to the conflicts in them and must bring to bear our skill and intelligent application of the principles to the facts and circumstances of individual cases. So said Justice Cordoze. "a Judge must think himself as an artist, who although he must know the handbooks, should never trust to them for his guidance; in the end he must rely on his almost instinctive sense of where the line lies between the word and purpose behind it. " As pointed out by learned Hand J. it is wisdom that enables to arrive at a proper compromise between the letter and the spirit of the word.

Now, it is said that the primary rule is the plain meaning rule but an undue emphasis on it will be an exercise in over simplification. It cannot be forgotten that words do not always bear a plain meaning and Judges may differ whether the words are plain as also to the meaning of what may be treated as plain words. In the words of Hand J. , "compunctions about judicial legislation are right enough as long as we have any genuine doubt as to the breadth of the legislature's intent, and no doubt, the most single factor in ascertaining its intent is the word it employes, But the colloquial words of a statute have not the fixed and artificial content of scientific symbols, they have a penumbra, a dim fringe, a connotation, for they express an attitude or will, into which our duty is to penetrate and which we must enforce when we can ascertain it, regardless of imprecision in its expression. " Similarly, the rule that we cannot aid the legislature's defective phrasing of an Act" and that we cannot add or mend and by construction make up deficiencies which are left there "has to be properly appraised without insisting upon an unnecessary rigidity for it. " In the words of Fonk, J. "the necessary generality in the wording of the many statute, and ineptness of drafting in others frequently compells the court, as best as they can, to fill in the gaps, an activity which no matter how one may label it, is in part legislative. " A few cases of the Supreme Court where additional words were read may be cited In Sha Mulchand & Co. Ltd. , vs. Jawahar Mills Ltd. Salem (6) where the expression appearing in Art. 181 of the Indian Limitation Act, 1908 was read as applica-tion under the Civil Procedure Code. In Siraj-ul-Haq Khan vs. The Sunni Central Board of Waqf U. P. (7) "any person interested in a waqf" was construed as "any person interested in what is held to be a waqf. "

It is in the light of these principles that the arguments of Mr. Utsav Lal for reading additional words in Art. 2 of the Act deserves to be examined. It is true that limitation for suits for foreclosure and sale arising out of unregistered deeds should be treated as 15 years as per Art. 7 for obviously Art. 1 cannot apply to them. It follows that there will be some anomaly if the limitation for suits for redemption even arising out of unregistered deeds can be filed within 60 years, that is after the expiry of 15 years limitation prescribed for suits for foreclosure and sale. All the same it is remarked that the adoption of the appellant's version will also lead to equally anomalous results. While a person can file a suit against a trespasser within 20 years he will be under compulsion to file a suit for redemption against the mortgagee under an unregistered mortgage deed only within 15 years. Similarly, a pledger or a pawner of immovable property is entitled to file a suit for movable property within 30 years whereas a mortgagor of immovable property will be under an obligation to file a suit for redemption on the basis of unregistered deed only within 15 years.

(3.)IT will be useful to point out at this stage that there was no law of Limitation in force in the former State of Mewar before the promulgation of the present Act. There was also no Registration Act, although it was stated at the Bar that some circulars had been issued in the matter of registration of documents. The Law of Limitation introduced for the first time makes a radical departure from the Indian Law of Limitation in one important aspect. While under the Indian Limitation Act the Court is bound to dismiss a suit or appeal filed after the expiry of the limitation the Mewar Limitation Act makes no similar provision. Art. 2 of the Mewar Limitation Act enjoins upon the Court to inform the defendant or the respondent that the suit or appeal is time barred and that he can plead limitation and the Court can dismiss the suit or appeal only if the defendant wants to take such plea. IT appears that the legislature permitted the parties to waive limitation having regard to the popular notions about the pleas of limitation. The Limitation Act contains a very few articles as compared with the then Indian Limitation Act. Having regard to all these circumstances and bearing in mind the principles warranting a proper compromise between the letter of the law and the object of the law in arriving at a conclusion as to the plain meaning of a statutory provision, I have been persuaded to come to the conclusion that the language of Art. 2 is plain and admits of only one reasonable construction that it applies to all suits for redemption and recovery of immovable property mortgaged arising out of any kind of document. Having reached this conclusion, I must add that it is a well settled law that the question of consequences anomalous or otherwise is relevant only when the provisions sought to be construed are reasonably capable of two constructions, but when it is reasonably possible to construe a provision in more than one ways, the Court should have no concern with the results which may ensue from giving effect to the plain meaning of the provision. Ordinary and natural meaning cannot be per. mitted to be effected by supposed anomalies. This is particularly so in interpreting the statute of limitation as the rules of limitation in the very nature of things are arbitrary and a search for reason or equity behind them may not always be fruitful.
On a balance of all considerations, it will be proper and fair to give effect to the plain language of Art. 2 and not to read the words "suits arising out of registered documents" in this Article.

Another contention of Mr. Gupta is based upon the principle that a special article would exclude the application of a more general one. The learned counsel agreed on the basic principle and indeed it is well settled principle that a special article would exclude the application of a more general one. In Kalipada Chakraberti vs. Smt. Palani Bala Devi (8) it has been laid down that "when there is a specific Article in the Limitation Act which covers a particular case, it is not proper to apply another Article, the application of which is not free from doubt. " A similar view has been taken in J. K. Cotton Spinning & Weaving Mills Co. Ltd. vs. State of U. P. (5) They however, differed as to which of the two Arts. 2 or 7 should be treated general or special. Mr. Utsav Lal's contention is that if his first contention is not accepted then Art. 2 is general and appears to govern all suits whether they arise out of registered or unregistered document. Art. 7, however, provides for suits arising out of unregistered documents only. In this back ground Art. 2 deserves to be treated general and Art. 7 as a special one. Art. 7 covering as it does, the field in respect of suits for redemption on the basis of unregistered documents and being a special one, Art. 2 should be held inapplicable.

Mr. Ganpat Singh, on the other hand, contends that Art. 7 does not specifically provide for suits for redemption. It provides for all kinds of suits between the mortgagor and the mortgagee arising out of unregistered documents. He also referred to Art. 4 and pointed out that a suit for movable property mortgaged (Hindi word used as "genne") provides 30 years limitation. Now, a mortgage or pledge of movable property need not be under a registered deed and, therefore, Art. 4 must be held to apply to suits for movable property mortgaged or pledged. Such suits cannot be governed by Art. 7. According to him, Art. 7 should be treated as residuary article to govern suits between mortgagees and mortgagors not provided for in other articles. Arguing further, he submitted that Art. 2 having provided for all suits for redemption Art. 7 cannot govern such cases. According to him, it will be hardly appropriate to construe Art. 7 so as to govern suits for redemption on the basis of unregistered deeds and to treat it as a special article in relation to Art. 2.

Having regard to the scheme of the various articles and the language of Arts. 2 and 7, I am inclined to agree with the counsel for the respondent. Art. 2 is very clear and provides for all suits for redemption arising out of all kinds of documents registered, or unregistered. Art. 7 does not specifically relate to suits for redemption and seeks to provide generally for suits between the mortgagor and mortgagee except those provided for in other articles. The applicability of Art. 7 to suits for redemption even if they arise out of unregistered documents is doubtful and, therefore, on the principle laid down in Kalipada Chakrabarti vs. Smt. Palani Bala Devi others (8) it will be proper to apply Article 2 of the Act. It cannot be reasonably accepted that Article 7 covers some specific field out of the general field covered by Article 2. The field covered by Article 2 cannot be covered by Article 7. On the other hand, in my opinion, Article 7 is general and residuary in the sense that it provides for all suits between mortgagees and mortgagors whereas Article 2 is confined to a specific category of suits i. e. suits relating to redemption. In that sense, it is general article whose applicability is excluded by Article 2 which is of a special nature.

The only two contentions made by the appellant fail. No other point was pressed before me.

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