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TMI Blog1939 (2) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... urther question whether the Act is ultra vires because its provisions conflict with the provisions of Hindu Law which impose upon a son the pious obligation to discharge his father's debts, lawfully contracted, and liability on a member of a joint family to pay out of his share of the family property a debt incurred by, the manager of the family for a family necessity. The references have been heard together and it will be convenient to answer them in one judgment. 2. The objections to the Madras Agriculturists' Relief Act are based on provisions of the Government of India Act, 1935, and the questions referred will be more readily understood if the relevant sections of the latter enactment are first stated. Section 99 of the Government of India Act provides that subject to the provisions of the Act, the Federal Legislature may make laws for the whole or any part of British India or for any Federal State, and a Provincial Legislature may make laws for the Province or for any part thereof. Section 100, Sub-section (1) confers upon the Federal Legislature exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prevail, but nevertheless the Federal Legislature may at any time enact further legislation with respect to the same matter. 5. Reading Sub-sections (1) and (2) of Section 107 together the effect is this. A Federal law always overrides a Provincial law unless the Provincial law is in respect of one of the matters enumerated in the Concurrent Legislative List and has been reserved for the consideration of the Governor-General or for the signification of His Majesty's pleasure and has received the assent of the Governor-General or of His Majesty, in which case the Provincial law prevails in the Province until the Federal Legislature chooses to legislate further. The position is the same in respect of an existing Indian law . An existing Indian law with respect to a matter enumerated in the Concurrent Legislative list overrides a Provincial law unless the Provincial-law has been reserved and has received the assent under Sub-section (2). The power of the Federal Legislature to legislate further when a Provincial law has been reserved and has received the assent is subject to the proviso that no Bill or amendment shall be introduced without the previous sanction of the Governor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w, custom or contract or under a decree of Court and whether the debt or other obligation has ripened into a decree or not, shall be deemed to be discharged and only the principal or such portion thereof as may be outstanding shall be deemed to be the amount repayable by the agriculturist on that date. Where an agriculturist has paid to any creditor twice the amount of the principal whether by way of principal or interest or both, such debt including the principal, shall be deemed to be wholly discharged. Where the sums repaid by way of principal or interest or both fall short of twice the amount of the principal, such amount only as would make up this shortage, or the principal amount or such portion of the principal amount as is outstanding, whichever is smaller, shall be repayable. Where a debt has been renewed or included in a fresh document in favour of the same creditor, the principal originally advanced by the creditor together with such sums if any as have been subsequently advanced as principal shall alone be treated as the principal sum repayable by the agriculturist under the section. Section 9 makes provision for scaling down of debts incurred on or after the first Octo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he absence of a contract to the contrary, the maker of a promissory note and the acceptor before maturity of a bill of exchange are bound to pay the amount thereof at maturity according to the apparent term of the note or acceptance respectively, and the acceptor of the bill of exchange at or after maturity is bound to. pay the amount thereof to the holder on demand. Section 78 says that subject to the provisions of Section 82, which relates to the discharge from liability, payment of the amount due on a promissory note, bill of exchange or cheque, must in order to discharge the maker or acceptor, be made to the holder of the instrument. Section 79 requires that when interest at a specified rate is expressly made payable on a promissory note or bill of exchange interest shall be calculated at the rate specified on the amount of the principal money due thereon, from the date of the instrument, until tender or realisation of such amount, or until such date after the institution of a suit to recover such amount as the Court directs, and Section 80 states that interest shall be calculated at 6 per cent, per annum where no interest is specified in the instrument. 10. The first questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to ascertain the class of subjects to which it really belongs . Russell v. The Queen (1882) 7 A.C. 829. In Hodge v. The Queen (1883) 9 A.C. 863 the Privy Council, in deciding whether an Act passed by the Legislature of the Province of Ontario and known as The Liquor Licence Act of 1877 was within the; powers of the Provincial Legislature said that subjects which in one aspect and for one purpose fall within Section 92 of the British North America Act may in another aspect and for another purpose fall within Section 91. In, other words, in one aspect and for one purpose a subject may be within the powers, of the Federal Parliament while in another aspect and another purpose it may fall within the powers of a Provincial Legislature. This statement of the law; was emphasised in John Deere Plow Co. Ltd. v. Wharton (1915) A.C. 330 at 339 where Lord Haldane, in delivering the Judgment of the Board observed: It must be borne in mind in construing the two sections, that matters which in a special aspect and for a particular purpose may fall within one of them may in a different aspect and for a different purpose fall within the other. In such cases the nature and scope of the legisla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. An Act may have a perfectly lawful object e.g. to promote the health of the inhabitants, but may seek to achieve that object be invalid methods, e.g. a direct prohibition of any trade with a foreign country. In other words, you may certainly consider the clause of an Act to see whether they are passed in respect of the forbidden subject. In the present case any suggestion of an indirect attack upon trade is disclaimed by the appellant. There could be no foundation for it. The true nature and character of the Act, its pith and substance, is that it is an Act to protect the health of the inhabitants of Northern Ireland; and in those circumstances, though it may incidentally affect trade with County Donegal, it is not passed 'in respect of trade, and is therefore not subject to attack on that ground. 13. The passage which I have quoted from the judgment of Lord Atkin (which was concurred in by Lord Thankerton, Lord Macmillan and Lord Wright) was quoted in extenso in the judgment of the Privy Council in Shannon v. Lower Mainland Dairy Products Board (1938) A.C. 708 a case which related to the powers of the British Columbia Legislature to set up a central marketing Board, to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st. But we do not regard the Agriculturists Relief Act as really affecting the principles embodied in the Negotiable Instruments Act. Negotiation of a promissory note is not prohibited nor is it said that a maker or an indorser shall not be liable. The only effect of the Madras Agriculturists' Relief Act so far as Negotiable Instruments are concerned is to reduce liability where the maker or indorser is an agriculturist. In providing for this the Provincial Legislature was acting in the interests of agriculture and regulating money-lending to agriculturists. It could never have been the intention of Parliament in conferring a general power on the Federal Legislature to legislate with regard to negotiable instruments to reduce the power of Provincial Legislature to deal with subjects within its exclusive control. When examined the Madras Agriculturists' Relief Act is in substance within the express powers of the Madras Legislature and the fact that in particular cases it may operate to reduce liability on contracts evidenced by negotiable instruments cannot affect its validity. The authorities which 1 have quoted are definite on the point. 15. Even if the matters dealt wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e only question which remains to be considered is whether the Madras Agriculturists' Relief Act is ultra vires because it conflicts with the provisions of the Hindu law imposing on a son pious obligation to discharge his father's debts and liability on a member of a joint family to pay out of his share of the family property debts incurred by the manager of the family for family necessity. The argument here is that the Government of India Act does not authorise either the Federal Legislature or the Provincial Legislature to legislate on matters relating to Hindu Law and that, therefore, until the Governor-General under the powers conferred upon him under Section 104 of the Act has assigned to the Federal Legislature or the Provincial Legislature power to enact laws with regard to Hindu law, neither Legislature can pass an Act which alters the personal law of the Hindus. The Provincial Legislature has power to legislate with regard to contracts and no exception is made in respect of contracts entered into by Hindus. There is no Federal or existing Indian law which stands in the way and even if there were the sanction of the Governor-General given under Section 107(2) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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