JAILAL Vs. BADRI LAL

JUDGEMENT

(1.) THIS is a revision application under sec. 26 of the Rajasthan Revenue Courts (Procedure and Jurisdiction), Act, 1951, against an appellate decision of the Additional Commissioner, Jaipur, dated 11.9.1953 in a case relating to redemption of mortgage over the agricultural in dispute.

(2.) WE have heard the parties and examined the record as well. An interesting point of law is involved for determination in this case. The applicants filed a suit against the opposite party for redemption of the land in dispute The trial court held the alleged mortgage proved and the applicant to be entitled to redeem the land by virtue of their being the fathers brothers sons son of the mortgagor, Ram Sukh. The first appellate court reversed the decree of the trial court on the ground that the alleged mortgage was not proved and that the applicant had failed to establish their right to redeem the property. The learned Additional Commissioner in second appeal upheld the decision of the first appellate court on the ground that the applicants could not inherit the tenancy rights of the mortgagor. It, however, did not go into other questions involved in the case.

(3.) THE only question that has to be determined by us is as to whether the applicants can be held eligible to inherit the tenancy rights of the mortgagor Ram Sukh or not. As the lower appellate court has not gone into the question of the creation of the mortgage and the adequacy or otherwise of the evidence led by the parties on the point we would deliberately refrain from expressing any opinion on these points and would confine our attention only to the legal question decided by the lower appellate court It is an admitted fact that Ram Sukh, mortgagor, died about a decade or so prior to the institution of the suit in 1943. It is also a fact that the Jaipur General Clauses Act 1944 was promulgated in the territory of the former Jaipur Unit on 8th February, 1944. It is almost a reproduction of the Indian General Clauses Act, 1897. The Jaipur Tenancy Act, 1945 came into force on 4th September, 1945. Sec. 17 of the Jaipur Tenancy Act lays down the order of succession of a male khatedar tenant and a fathers brothers sons son does not appear as an heir in it. The learned Additional Commissioner has, relying on sec. 3 of the Act held that as the applicants are not included within the list of heir given in sec. 17 of the Act they are not eligible to redeem the property. The applicants contention before us is that this provision cannot govern succession to a tenancy which had opened in 1930 and cannot affect a right which was acquired then. Sec. 6 of the Jaipur General Clauses Act will obviously govern the case. As laid down in sub -clause (c) of this section when any Act or Regulation made before of after the commencement of the Act repeals any previous enactment then unless a different intention appears the repeal shall not affect any right acquired under the repealed enactment. Nor will any legal proceeding or remedy in respect of such a right shall be affected by the repeal provided in sub -clause (e) of this section. As pointed out above Ram Sukh tenant died in 1930 and if the applicants were eligible to inherit tenancy from Ram Sukh under the law prevailing at the time of Ram Sukhs death the subsequent enactment of 1945 cannot deprive them of that right. The case shall have, therefore, to be determined with reference to the state of Jaw prevailing at the time when succession to Ram Sukhs tenancy opened. We would, therefore, allow the revision, set aside the order of the Additional Commissioner, Jaipur, and remand the case back to him with the direction that the appeal presented before him be heard and disposed of on other points involved in it.