- (1.) THIS is an appeal by Thakur Vijai Singh against the judgment and decree of District Judge, Balotra, decreeing the suit brought by the plaintiffs respondents.
(2.) THE case put forward by the plaintiffs respondents was briefly this: THE defendant's father Thakur Mohbat Singh of Thikana Ramseen was in need of a loan in connection with the marriage of his daughter, i. e. the sister of the defendant. Under some rule or practice prevalent in the former State of Marwar, Thakur Mohbat Singh had to obtain the sanction of the Chief Minister of that State for obtaining a loan for the purpose. Consequently, an application was made for obtaining the sanction, and Thakur Mohbat Singh wanted to borrow Rs. 10,000/ -. Sanction was, however, given to him to borrow Rs. 7,000/ -. In pursuance of that sanction, he borrowed the sum of Rs. 7000/- from the plaintiffs at 12% compound interest with yearly rests on 17-5-1944. In order to secure the plaintiffs a Baraskati deed was executed for the sum of Rs. 15000/-, and registered. This form of transaction seems to have been very much in vogue in the former state of Marwar in view of the restriction which was imposed by law on jagirdars from alienating their properties. This Baraskati deed was for 10 years, and the plaintiffs were to give up possession after 10 years when the principal and interest would be satisfied after the enjoyment of the villages given to the plaintiffs for this purpose. THE plaintiffs' case Was that they never got possession of the villages as soon after the Thikana was put under Court of Wards. THErefore the plaintiffs proved their debt before the Court of Wards. Eventually, they filed the present suit for recovery of the amount lent and interest at 12% compound with yearly rests, i. e. for a total sum of Rs. 14000/ -. The suit was resisted by the defendant. He put the plaintiffs to the proof of the deed executed by his father. He also contended that the rate of interest namely 12 per cent, compound interest with yearly rests was penal, and should be reduced. We do not think it necessary to set out the rest of the written statement, for learned counsel for the appellant has only urged three points before us in appeal, and these points are: 1. The plaintiffs had no right of suit at all; 2. Out of the consideration of Rs. 7000/- the defendant's father did not receive the sum of Rs. 1300/- and therefore the Principal amount should be reduced by that amount; 3. The plaintiffs were only entitled at the outside to 12 per cent. simple interest under the Mar-war Relief of Indebtedness Act, 1941 (hereinafter called the Marwar Act), and not 12 per cent. compound interest, and that therefore the amount decreed should be reduced. We shall decide these points one by one. As to the first point that the suit is not maintainable at all, it is enough to say that we have not been able to understand how the suit is not maintainable. The facts are that the plaintiffs did advance Rs. 7000/- to the defendant's father. The term of the agreement between the Plaintiffs and the defendant's father was that the plaintiffs would be put in possession of three villages for 10 years, and would get their money with Interest from the usufruct of those villages for that period. The plaintiffs however never got possession of the villages for a single day. In these circumstances, whether the Baraskati deed is a mortgage or a lease, the plaintiffs are entitled to get back the amount advanced by them. We may however mention that in Samrathraj v. Thakur Madan Singh, B. B. Civil R. I. Appeal No. 65 of 1952, decided on 11th July 1955 (A), we have held that an almost similar deed was a mortgage. The present Baraskati deed is also, in our opinion, a mortgage, and as such the plaintiffs are entitled to recover the amount which they had advanced when they failed to get possession of three villages. The point is decided against the defendant. Turning now to the second point relating to the sum of Rs. 1300/- we find that the defendant's father was given Rs. 5700/- in cash, and in addition a letter was given to him to take the remaining Rs. 1300/- from a certain person. One of the plaintiffs Surat See has appeared in the wit-ness box, and deposed that this sum was taken away by the defendant's father from that person. He has not produced the account books in support of his payment, and it would perhaps have been better if he had done so. But the defect has been made good by the statement of Mukhtiarali P. W. 5. This man was undoubtedly the Kamdar of the defendant's father. He has deposed that a few days after the execution of the Baraskati deed, he went to the person concerned and brought the sum of Rs. 1300/- and handed it over to the defendant's father. We see no reason to disbelieve the statement of this witness. It is, therefore, proved that the entire sum of Rs. 7000/was paid by the plaintiffs to the defendant's father. We now come to the question of interest. Under Section 5 of the Marwar Act, it is provided that interest shall not exceed 12% simple or 9 per cent. compound if the loan is a secured one. Under Section 6 of the Marwar Act, the provisions of Section 5 apply to all suits pending on the date the Marwar Act came into force, which is said to be some date in 1945, and also to all suits instituted after the commencement of the Marwar Act. Thus the Marwar Act provided that relief would be given in all suits pending on the date the Act came into force, i. e. , in 1945, & also in all suits filed thereafter, whatever may be the time when the loan was taken and the document evidencing the loan executed. If this Act applies, it is not disputed that the plaintiffs could not charge 12 per cent. compound interest, but could only at the out- side charge 12 per cent. simple interest. The contention on behalf of the plaintiffs, however, is that the Marwar Act has been repealed and they rely in this connection on the Rajasthan Adaptation of Central Laws Ordinance (No. IV) of 1950. By this Ordinance, certain laws were applied to the State of Rajasthan including the Usurious Loans Act (No. X) 1918 (hereinafter called the Indian Act ). Further by Section 10 of the Ordinance is as follows: " All laws covered by the Central laws adapted by or under this Ordinance, in force in the whole or any part of Rajasthan, shall, on the commencement thereof, be repealed. " The Indian Act was adapted to Rajasthan without any change, and the submission is that as the Indian Act covered the field which was covered by the Marwar Act, the Marwar Act stood repealed from the 25th of January, 1950 when the Ordinance came into force. We have, therefore, to interpret the extent of the repeal made by Section 10 of the Ordinance. In one sense, the repeal is not express because the laws repealed have not been specified in the Ordinance. At the same time, we cannot call the re-peal merely implied repeal, for there is an express provision for repeal. It is, however, left to the Courts to decide what are the laws which have been repealed by Section 10 of the Ordinance and to what extent. Now Section 10 of the Ordinance lays down that all laws covered by the Central laws adapted by the Ordinance are repealed. Therefore, only such laws are repealed as are covered by the Central laws. If any law is not covered by the Central law adapted by this Ordinance, it will not be repealed. Further if a part of law only is covered by the Central law adapted only that part will be repealed, and the rest will stand. It is only where the Central law covers the entire field, and the intention of the legislature was that the earlier law should be completely repealed that we can come to the conclusion that the entire law was repealed. Though, therefore, the repeal in this case is not purely by implication, we feel that the principles which apply to repeal by implication would serve a useful guide in a case of this kind, for here also we have to find the intention of the legislature from the words used in the repealing section. We may in this connection refer to the observations in Crawford on Statutory Construction, 1940 Edition, page 628, which are as follows: " The construction of the new law becomes an important consideration, since its meaning and scope will determine whether a repeal takes place, and if so, its extent. And usually one of two questions will arise; (1) whether the new law is intended as a substitute for the old; or (2) whether the new is irreconcilably inconsistent with the old, so that the former is thereby terminated. In brief, the problem will be simply to determine what is the legislative intention--whether the old law shall cease or whether it shall be supplemented. " Let us therefore see whether the new law was intended as a substitute for the old. If it was so intended, then the old law will be repealed within the terms of Section 10 for the new law will cover the whole field. It is, however, clear in this case that the new law does not cover the whole field and therefore the intention or the legislature could never be to repeal the whole of the Marwar Act by bringing into force the Indian Act. The Indian Act only deals with that part of the Marwar Act which is to be found in Part I and Part III of the Act, The Marwar Act, however, has other parts with which obviously the new law has no concern. It is clear, therefore, the Indian Act does not cover the whole field covered by the Marwar Act and does not therefore repeal it within the meaning of Section 10. The argument, however, further is that even though the Indian Act does not repeal those portions of the Marwar Act which it does not cover, it does wholly repeal Part III of the Marwar Act, for it does cover that part of the Act. Let us see if this contention is correct. The Indian Act and the Marwar Act both deal with the matter of charging excessive interest, and to that extent they are with reference to the same subject-matter; but the Indian Act only applies to suits brought for the recovery of a loan taken after its commencement, or for the enforcement of any security made after its commencement or for the redemption of any security given after its commencement. Thus it only applies to transactions made after the commencement of the Act. The Indian Act could, therefore, apply in Rajasthan only to loans taken after it came into force, i. e. , after the 25th of January, 1950, and to mortgages etc. entered into after that date though the loan forming part of the consideration of these securities might be of a time prior to the commencement of the Act. The field therefore covered by the Indian Act was a limited one, namely, where the suits related to loans actually advanced after it came into force, or to mortgages etc. made after the Act came into force. The field of the Marwar Act is much wider. It applied to all suits pending on the date on which it was enforced and instituted after its commencement. There was no prohibition that it would not apply to cases of suits based on loans or mortgages before the Act came into force. Thus the Marwar Act applied not only to loans taken and mortgages made after that Act came into force; it also applied, if a suit was pending when it came into force, or was filed afterwards, to cases of loans taken and mortgages made before the commencement of the Act. Thus the Marwar Act applied to a much wider field than the Indian Act. When therefore Section 10 of the Ordinance lays down that all laws covered by the Central laws adapted by it shall be repealed, we have to see whether the intention of the legislature was to substitute the Indian Act completely for Part III of the Marwar Act. We have given our earnest consideration to this matter, and we cannot believe that the Rajasthan Legislature intended to repeal the ameliorating provisions of Part III of the Marwar Act when it brought the Indian Act into force. We are of opinion, therefore, that the intention of the legislature must have been to bring the Indian Act into force from the 25th of January, 1950, in the matter to which that Act was applicable, and leave the earlier law which was applicable to other matters to which the Indian Act was not applicable as it was. Therefore, the repeal by Section 10 of the earlier law was only with respect to suits brought after the Indian Act came into force based on loans taken or mortgages made after the coming into force of the Indian Act. So far as the loans taken and mortgages made before the Indian Act came into force was concerned, the earlier law remained be-cause the Indian Act had nothing to do with that part of the field, and did not cover it. We are, therefore, of opinion that looked at from the view whether the new law was intended as a substitute for the old, the new law is a substitute for the old only to the extent to which the field was covered by the new law, namely, suits brought after the Indian Act came into force relating to transactions of loans taken and securities made after its commencement. For suits relating to similar transactions of a date earlier than the 25th of January, 1950, the Marwar Act remained in force, this field not being covered by the Indian Act. Let us now turn to the other test, namely, whether the new law is irreconcilably inconsistent with the old so that the former is thereby terminated. What we have said above with respect to the fields covered by the two laws clearly shows that the new law is not irreconcilably inconsistent with the old, and that the two have different fields where they can operate. In these circumstances, when the two can operate in two different fields, we are of opinion that there is no reason why we should hold that the words used in Section 10 repeal Part III of the Marwar Act also with respect to suits relating to loans or mortgages of a date prior to the 25th of January, 1950. We are, therefore, of opinion that the Marwar Act continues HO far as loans taken and mortgages made before the 25th of January, 1950, are concerned, provided the suit was pending on the date it was brought into force, or was instituted after that date. In this view of the matter that Act applies to this suit and the plaintiffs are entitled to not more than 12 per cent. simple interest. In all the circumstances of the case, we award them 12 per cent. simple interest. This will mean that the decree granted by the Court below will have to be reduced.
(3.) WE, therefore, partly allow the appeal, and modify the decree of the Court below in this way, the plaintiffs will be entitled to a decree of Rs. 7000/- principal, and 12 per cent, simple interest thereon from the date of the Baraskati deed, namely, the 17th of May, 1944, to the date of the suit. Thereafter, the plain tiffs would be entitled to 6 per cent. interest on the principal from the date of suit to the date of the decree, and thereafter 6 per cent. interest on the total decretal amount from the date of decree to the date of realization. Parties will pay and receive costs in both the Courts according to success and failure. .;