TMI Blog1942 (4) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 enjoyed by the mortgagee while in possession have equalled or exceeded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, the Court has to consider the provisions of the impugned Act and to determine whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to s, 107 (1) of the Indian Constitution Act, difficulty has sometimes been felt in precisely defining the test of repugnancy or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 position will be even more obvious, if another test of repugnancy which has been suggested in some cases is applied, namely, whether there is such an inconsistency between the two p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 law or statutory rules and the Transfer of Property Act is not as such in force in most of the Punjab. 12. This conclusion is sufficient to dispose of the appeal ; but as the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 English language. In some decisions, the Court has thought it right to place- a restricted interpretation on the expression agricultural purpose in view of indications afforded by the particular Act which had to be considered by the Court: see Chandrasekhara Bharati Swamigal v. Dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nkayya 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 which period the land itself is untouched, to describe that as agriculture appears to me inappropriate . The decision of the Judicial Committee in Kesho Prasad Singh v. Sheo Prakash Ojha I.L.R. (1921) All., would at first sight seem to lend some support to this view, as Their Lordships (without any discussion) confirmed the view of the High Court that Section 79 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording 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 this case. 18. If the general meaning of agriculture is to be adopted, even land used for pasture may in many cases fall within the definition of agricultural land (sec King Emperor v. Alexander Allen I.L.R. (1901) Mad. 627, and it is unnecessary to decide whether there may not be at least some instances in which pasture land cannot in any sense be described as agricultural land . We shall only add that if paragraphs (b) and (d) of the definit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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