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TMI Blog1942 (4) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... Punjab Government applied to be impleaded as a party to the suits, on the ground that it was interested in the decision of the question involved. It was accordingly impleaded as a Defendant "subject to just exceptions", and is thus a party Respondent in the appeals before this Court, though in the Memorandum of Appeal it is the Advocate-General of the Punjab who is stated to be the Respondent. As soon as the High Court pronounced its opinion on the point of law, the suits were remitted to the subordinate Court for decision on the merits, but on a certificate granted by the High Court under Section 205 of the Constitution Act, the appeals to this Court have been preferred and the proceedings in the subordinate Court have in the meanwhile been staved. 2. The impugned Act of the Punjab Legislature purports to make certain special provisions in respect of mortgages with possession effected before June 8, 1901. Dealing with such of them as "subsist", the Act sets aside the normal procedure for redemption, and authorizes the mortgagor to apply to the Collector for restitution of possession of the mortgaged land. If the Collector finds that the value of the benefits e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore us, it is unnecessary to say anything about it. The argument based on Section 298 was repeated before us, but it may be briefly disposed of. It has not been suggested that there is anything in the provisions of the impugned Act which is discriminatory in its nature. All that was relied on was that the date (June 8, 1901) fixed in Section 2 of the Act was the date on which the Punjab Alienation Act, 1900, came into force and it was said that that Act was discriminatory, and that this Act was part of the same policy, discriminating between agriculturist communities and non-agriculturist communities in the Punjab. It was also said that in fact and in effect the working of Act IV of 1938 would benefit members of the agriculturist communities at the expense of the non-agriculturists because the mortgagors in the province generally belonged to the agriculturist class and the mortgagees to the non-agrigulturist class. No question arises in this case with reference to the Punjab Alienation Act and we do not propose to say anything with reference to the objections urged against it. When a particular piece of legislation is impeached as contravening Section 298 of the Constitution Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at entry must be restricted to "agricultural land" as indicated lower down in the entry itself ; and he maintained that the propriety of such a restriction was confirmed by the fact that by entries Nos. 7, 8 and 10 in List III, wills, intestacy and succession, and transfers and contracts were placed within the concurrent jurisdiction of the Central and Provincial Legislatures, except as regards agricultural land. If entry No. 21, in List II were thus limited, it would follow, according to him, that the provisions of the impugned Act, in so far as they applied to property other than agricultural land, would be inoperative to the extent to which they were repugnant to any existing Indian law: see Section 107(1) of the Constitution Act. On this footing, he attempted to show that the impugned Act is not limited in its operation to agricultural land, and that some of its provisions are repugnant to certain provisions of the Contract Act and of the Code of Civil Procedure Code. It will be convenient to take up the latter question first, as it seems easier to reach a definite conclusion thereon. 7. In Australia, where the Constitution Act contains a provision (s. 109) similar t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsed with or excused under the provisions of ... any other law". When the statement of the general rule itself is so qualified, it is difficult to see how a law which excuses performance of any particular kind of contract can be said to be in consistent with the section, which must be taken as a whole. The impugned law will only be one of the special cases contemplated or saved by the main or paramount Act. Likewise, Section 9 of the Code of Civil Procedure Code, which postulates the jurisdiction of the ordinary civil courts to try all suits of a civil nature, excepts "suits of which their cognizance is either expressly or impliedly barred"; and Section 4 lays down that in the absence of any specific provision to the contrary, nothing in the Code shall be deemed to limit or otherwise affect any special form of procedure prescribed by or under any other law for the time being in force. As held by this Court in The United Provinces v. Atiqa Begum (1940) F.C.R. 110, at pp. 137, 145, these qualifying or saving words preclude the contention that an Act which bars a civil remedy in certain cases is repugnant to the provisions of the Code of Civil Procedure. 9. The positio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... joyed by the mortgagee while in possession" as directed in Section 7. We do not feel called upon at this stage to express any opinion on these questions relating to the interpretation of the Act. It is sufficient to say that the Act does not clearly or in terms take away any rights which a mortgagee may have under Sections 69 and 70 of the Contract Act, and that no particular provision in the Act can accordingly be said to be repugnant to those provisions of the Contract Act. 11. In the argument before the High Court, a passing reference seems to have been made in this connection to the Limitation laws and to the Transfer of Property Act (Central Act No. IV of 1882). There is no provision in the impugned Act which conflicts with the Indian Limitation Act (Central Act No. IX of 1908), and even if there were any, the saving of special or local laws in Section 29(2) of the Limitation Act would preclude the argument of repugnancy, for the reasons above indicated. No argument was urged before us with reference to the Transfer of Property Act for the obvious reason that a plea of repugnancy under Section 107(1) of the Constitution Act could be raised only on the strength of statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, and might well include rent from non-agricultural property. 14. Objection was lastly taken to the inclusion in paragraph (g) of "trees standing on such land" in the definition of land. It was pointed out that in Bkagwana v. Gopi A.I.R. 1935 Lah. 202, it had been held by the Lahore High Court that trees would not fall within the corresponding definition of "land" in the Punjab Alienation Act and that paragraph (g) in the definition was added to meet this decision. We do not propose to express any definite opinion on the several steps involved in this part of the argument. It may however be observed that there is force in the contention that entry No. 21 in List II should be read and interpreted as a whole and in the light of entries Nos. 7, 8 and 10 of List III. 15. As regards the connotation of the word "agricultural", it may be pointed out that "agriculture" has been variously defined in several English and Indian statutes for the purposes of these statutes and it is neither useful nor legitimate to attempt to draw any inference from these statutory definitions for the purpose of determining the ordinary connotation of the word in the E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eason has been suggested by counsel for the Appellant why "agricultural land" mentioned in entry No. 21 of List II of the Seventh Schedule should be limited to what has been described in the cases as the narrower meaning of the expression. But the view indicated in Murugesa v. Chinnathambi I.L.R. (1901) Mad. 421, by its approval of Yenkayya v. Ramasami I.L.R. (1898) Mad. 39, viz., that land used for a cocoanut garden must be deemed to be used for an "agricultural purpose" has not gone unchallenged, and even more so the view taken in Panadi Pathan v. Ramaswami Chetti I.L.R. (1922) Mad. 710, that a lease of land for growing casuarina trees to be used for fuel was a lease for agricultural purposes ; see Chandrasekhara Bharati Swamigal v. Duraisami Naidu I.L.R. (1931) Mad. 900. In the last cited case, Reilly J. observed that "agriculture cannot be defined by the nature of the products cultivated but should be defined rather by the circumstances in which the cultivation is carried on". The learned Judge then proceeded: "When the land is covered, with trees which have to stand on it for a number of years sometimes as long as a century, during most of wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the same parcel of land is used to produce something else (as often happens in this country), it should be governed by and descend according to laws framed under List III. 17. The decision in Bhagwana v. Gopi A.I.R. 1935 Lah. 202, was, as stated in the judgment, concerned only with the trees and not with the land occupied by those trees; and there was no occasion therefore to discuss the meaning of the word "agriculture". According to the 'principle recognised in Section 8 of the Transfer of Property Act, trees on land are ordinarily regarded as an incident there of, though it is permissible to deal with the trees independently of the land. Whether paragraph (g) of the definition in the impugned Act is intended to refer only to cases where the land and the trees thereon have been dealt with together, or also to cases where the trees have been dealt with independently of the land they stand on, and whether even in the latter case paragraph (g) can be said to deal with "agricultural land" within the meaning of entry No. 21 in List II of the Constitution Act, are questions which we prefer to leave alone as unnecessary to be considered for the purposes of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred on the Provincial Government to make rules for the purpose of giving effect to the provisions of the Act, and paragraph (c) of s.s. (2) of that section refers in particular to the principles by which the Collector shall assess the amount due under the mortgage and the value of the benefits accruing to the mortgagee while in possession. Any obscurity or difficulty arising out of the wording of any provisions in the Act can be met by the insertion of definite and appropriate provisions in the rules to be thus framed. 20. In the view we have taken on the question of "repugnancy" within the meaning of Section 107(1) of the Constitution Act, the appeals must fail, even if it can be said that the provisions of the impugned Act affect "property other than agricultural land". The appeals are accordingly dismissed, except to the extent indicated below. 21. In both the cases, the Plaintiffs-mortgagees have been directed by the High Court to pay costs to the Punjab Government in that Court. As already stated, the Government intervened in this litigation by its own choice and no reasons have been suggested in the High Court's judgment nor was any shown before us ..... X X X X Extracts X X X X X X X X Extracts X X X X
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