Shivgonda Ravaji Sankpal vs Chandrakant Dnyanu Sutar and another

Deshmukh, J.—This petition raises an interesting question regarding the real meaning and interpretation of the provisions of section 4 of the Maharashtra Debt Relief Act, 1975 (hereinafter referred to as ''the Act'').

Facts are not in dispute. One Babaji Sutar mortgaged to one Nagoji Yesaba Sankpal three lands from village Chikhali in Kagal taluka of Kolhapur District, for a loan of Rs. 5,000 on July 30, 1897. It was a possessory mortgage in respect of S. Nos. 181/1, 189/1 and 191/1 together measuring 7 acres and 20 gunthas assessed at Rs. 32-56. The mortgagee assigned a portion of the mortgage to one Raoji Rama Sankpal whose son is the present petitioner Shiv-gonda. He is described as a creditor in the original petition and was a party respondent. Present respondent No. 1 who was the applicant before the Tahsildar, Kagal, claims himself to be the heir of the original debtor mortgagor Babaji. He further claims that he is a ''debtor'' within the meaning of that expression defined in clause (f) of section 2 of the Act and as such he is entitled to the relief of return of his lands u/s 4 after a declaration that the debt now stands wholly discharged.

He made an application u/s 7 of the Act as his claim for the return of the lands was disputed by the creditor. The Tahsildar held an inquiry as contemplated by section 6 of the Act and held that the petitioner is a ''debtor'' under the Act. He further held that though the claim under the original mortgage-deed of July 30, 1897 is barred by limitation under the provisions of the Limitation Act, 1963, or even under the earlier Limitation Act, 1908, the debt as such was never discharged. It was an outstanding debt Since this special Act has been enacted to relieve indebtedness of certain types of farmer, rural artisan, or rural labourer and workers in the State of Maharashtra, the question of limitation need not come in the way of declaring that the debt is discharged and that the mortgaged land be returned. Accordingly, an order has been passed for the return of the land. Being aggrieved the original creditor has filed the present petition.

The status of respondent No. 1 as a debtor under the Act is not being challenged before us. The only question that is agitated is that the mortgage amount under the impugned mortgage-deed of 1897 is no more a ''debt'' within the meaning of that expression used in clause (e) of section 2 of the Act nor are the provisions of section 4 applicable to a transaction of the present type where the right of redemption has been barred by the law of limitation and the mortgaged property no more belongs to the debtor at all. It would be better to have a look at the definition of ''debtor'' in clause (c) of section 2 and the provisions of section 4 which deal with the discharge of certain debts and the consequences thereof.

"2 (c). ''debt'' means any liability, in cash or kind, outstanding on the appointed day, being a liability arising out of a loan (with interest if the loan is taken by a worker, and with or without interest, in any other case), whether secured or unsecured, due from a debtor whether payable under a decree or order of any court or otherwise."

"4. Notwithstanding anything contained in any other Jaw for the time being in force or in any contract or other instrument having force by virtue of any such law, and save as otherwise expressly provided in this Act, every debt of a worker, whose immovable property, if any, does not exceed twenty thousand rupees in market value and every debt of any other debtor outstanding on the appointed day, including the amount of interest, if any, payable by a debtor shall be deemed to be wholly discharged; and the consequences as hereinafter set forth shall, with effect from the appointed day, ensue namely : �

(a) no such debt due from a debtor on the appointed day shall be recoverable from him or from or against any movable or immovable property belonging to him, nor shall any such property be liable to be attached and sold or proceeded against in any manner in the execution of any decree or order relating to such debt against him;

(b) no civil Court shall entertain any suitor proceeding against such debtor for the recovery of any amount of such debt, including interest, if any:

Provided that, where a suit or proceeding is instituted jointly against such debtor or any other person, nothing in this clause shall apply to the maintainability of a suit or proceeding in so far a� it relates to such other person;

(c) all suits and proceedings (including appeals, revisions, attachment or execution proceedings) pending on the appointed day for the recovery of any such debt against such debtor shall abate: ''

Provided that nothing in this clause shall apply to the sale of� (i) any movable property, held and concluded before the appointed day; (ii) any immovable property, confirmed before such day;

(d) every debtor undergoing detention in a civil prison in execution of any decree for money passed against him by a civil Court in respect of any such debt shall be released;

(e) every property pledged or mortgaged by such debtor shall stand released in favour of such debtor, and the creditor shall be bound to return the same to the debtor forthwith on the debtor making an application in writing in that behalf; and the creditor shall pass a receipt to the debtor of having received the application. If the creditor refuses to pass a receipt, then the debtor may get the application endorsed to that effect under the signature and date of any of the officers referred to in section 6 or by any person authorised by them in this behalf.

Explanation 1�Nothing in this section shall be construed to entitle any such debtor to the refund of any part of a debt already repaid by him or recovery from him before the appointed day.

Explanation 2�For the purpose of this section, the expression ''debt of a worker'' includes a debt arising out of loans taken from more than one creditor."

The above definition shows that the Act deals with debt which means any liability either in cash or kind which is ''outstanding'' on the appointed day. It could be a liability arising out of a loan with interest if the loan is taken by a worker, and with or without interest in any other case whether secured or unsecured ''due from a debtor'' whether ''payable'' under a decree or order of any Court or otherwise. In my view, the three important words used in the definition clause are ''outstanding'', ''due'' and ''payable''. A debt must be due from a debtor and it must also be payable. Being due and payable it must also be ''outstanding''. Unless these conditions are satisfied a debt does not fall within the purview of this Act for the purpose of anticipated relief against indebtedness. The same language is carried to the main body of the provisions of section 4, which deal with the discharge of debt and consequences thereof.

The opening substantive provision of that section quoted above, undoubtedly over-rides all the provisions of other laws as well as contracts and instruments having force by virtue of any such law. Having provided a non-abstante clause in this fashion, what is laid down is that every ''debt'' of a debtor under the Act ''outstanding'' on the appointed day including the amount of interest, if any, ''payable'' by a debtor shall be deemed to be wholly discharged. Then follow the consequences enumerated in clauses (a) to (e). Here again the emphasis is that on the appointed day the debt with or without interest must be payable as well as outstanding and if that condition is satisfied in respect of a debtor, the debt is to be deemed to have been discharged. The consequences in clause (e) which deal with mortgaged and pledged property is quite logical in conformity with the object of the Act. It says that every property pledged or mortgaged by such debtor shall stand released in favour of such debtor and the creditor shall be bound to return the same to the debtor forthwith on the debtor making an application in writing in that behalf- Needless to add that if the application is not complied with but a dispute is raised by the creditor, the debtor is entitled to apply u/s 7 to the Competent Authority and the Competent Authority hears the parties u/s 6 and passes appropriate orders to enforce the provisions of this Act. In my view, therefore, whether the defy is secured or unsecured the main consequence is discharge thereof. If it is secured, it is logical that the security is returned to the debtor as the debt for which it represented security is itself discharged.

According to me, the Act has been enacted with the specific purpose of granting relief from indebtedness to debtors, which also means that relief is necessary in respect of the particular debt. When a debt is a time barred, there can be no recovery in any Court of law though technically the debt may be good for some purposes. It cannot be described as a debt due and payable and outstanding from a particular debtor. For time barred debts, if the debtor is not inclined to pay, relief is already granted by the Limitation Act. Where relief is already granted by the existing laws of the land, it is difficult to imagine that a superfluous and additional relief in respect of the same is sought to be given by the Legislature. It was argued that a time barred debt can always be a good consideration for the renewal of a transaction. That is a correct legal position. But of what practical use is this discussion when we consider the case of needy people who have got to go to the door of the creditor for want of any alternative source of credit. In the absence of any alternative source of credit, the creditor is bound to add the old amount to the additional advance that will be given and compel the debtor to sign a document for such an amount, as if it is a wholly fresh amount advanced on the day. The fact that technically the previous debt is declared discharged will be of no assistance to the debtor unless the State has provided him with an alternative source of credit. If such a source is available he need not go to the previous creditor at all and whether the debt is time barred under the existing laws of the land or it stands discharged under the present Act the situation seems to be identical so far as the indebtedness of the debtor is concerned.

This interpretation seems to be substantially supported by the consequences enumerated in clauses (a) to (e) of section 4 which follow upon the discharge of the debt. Clause (a) states that no ''such'' debt due from a debtor on the appointed day shall be recoverable from him or against any movable or immovable property belonging to him nor shall any such property be liable to be attached and sold or proceeded against in any manner in the execution of any decree or order relating to such debt against him. The entire concept incorporated in this clause is the possibility of recovery in various manners regarding the outstanding debt which is styled as ''such debt'' as mentioned in the opening part of that clause. When a debt is time barred, where is the question of it being recovered either under a decree or order of a Court of Law? When the Legislature declared that such debt shall not be recoverable, is it to be supposed that a debt which is already time barred and therefore not recoverable is again declared not recoverable by committing the fault of tautology? If, therefore, appears clear to me that Legislature provided relief only against debts which are recoverable on the appointed day, and never had in its mind, debts which are already time barred and as such not recoverable according to the existing laws of the land.

Clause (b) again emphasises the same situation. It directs that no civil Court shall entertain any suit or proceeding against such debtor for the recovery of any amount of such debt", including interest if any. Here again the emphasis is on the recovery through Courts. A time barred debt under the existing laws is already not recoverable through the assistance of the courts and clause (b) could not have been provided to include debts which are already time barred. There is a proviso to this clause which contemplates that out of the joint debtors one may be a debtor under the present Act and the other may not. In the circumstances a suit could be proceeded against the other person though the remedy is not available against the debtor under the Act.

Clause (c) contemplates suits which are already pending in the courts of law for the recovery of debt on the appointed day. In case of debt due from the debtors all such suits are to abate. A proviso has been added to save certain suits of limitation but that need not detain us because the substantive provision is to abate pending suit which is meant to recover outstanding debt from the debtor.

Clause (d) deals with a situation where the debtor may be undergoing civil imprisonment for non-payment of debts. If such a situation exists on the appointed day, since the debt is deemed to be discharged there is no reason why the erstwhile debtor should continue to linger in the civil jail. He is to be released forthwith. Clause (e) deals with pledged or mortgaged properties which are to be returned to the debtors since the date is now deemed to be discharged. There are two explanations at the end of this clause. Explanation 1 lays down that nothing in that section is to be construed to entitle any such debtor to the refund of any part of a debt already repaid by him or recovery from him before the appointed day. Hence all payments made by the debtor or recovery made from him through legal processes are declared as good. This emphasises the fact that after such payments as the debtor may have already made, whatever debt now remains ''outstanding'' and is due and payable on the appointed day, alone is to be deemed to be discharged. Explanation 2 has been enacted to include certain kind of debts of a worker and has no direct bearing upon the interpretation of the substantive provisions of the Act. In my view, therefore, prima facie there is inherent material within the framework of the provisions of the Act itself which shows that only debts within limitation on the appointed day which are therefore outstanding and are due and payable as also recoverable are declared as discharged and non-recoverable.

Let us now consider the special provisions relating to mortgages where the equity of redemption is barred by limitation. The first question that must be considered is the nature of the suit for redemption. It is essentially a suit for taking accounts of the mortgage with an offer to pay any outstanding amount due under the mortgage and on payment of such amount a claim for return of property. Such a suit must be brought within limitation as was prescribed under the Limitation Act of 1908 if that Act applies, or under the period of limitation now prescribed by the 1963 Act. Though the debtor has to make payment where it is due, what he essentially claims from the creditor-defendant is the return of his property. In other words it is a suit for possession of immovable property. That being so the plaintiff must always assert that he has a subsisting title to the property of which he claims possession. This has been expressly held by a Full Bench of the Allahabad High Court in the case of Parmanand Misr v. Sahib I L R 11 All. 438 (FB).

It need not be over-emphasised that simply because a debt is barred by limitation, it is neither discharged nor extinguished. It has only the remedy that is barred. But there is one exceptional situation where the determination of the period of limitation also leads to the extinguishment of the right to property. Section 28 of the Limitation Act of 1908, which is retained verbatim as section 27 of the present Limitation Act, lays down that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. Various instances can be cited where limitation for the recovery of possession is gone which leads to the consequences of the extinguishment of the right to property.

Such a consequence is not confined to the cases of mortgaged lands but it is a consequence in all cases where the claim is for the possession of any property and the period for its recovery is determined by the provisions of limitation. In Canga Govind Mundul v. The Collector of the Twenty four Paraganas 11 Moore''slndiaa Appeals 345, their Lordships of the Privy Council held that if the owner whose property is encroached upon suffers his right to be barred by the law of limitation, the practical effect is the extinction of his title in favour of the party in possession. This judgment has been quoted with approval by them in the case of Lala Hem Chand v. Lala Peary Lal 45 Bora. L R 275 (P C.). In Fakirappa Jotappa Nalemani v. Ningappa Shidlingappa Matti 45 Bom. L R 491 the then learned Chief Justice Beaumont sitting as a Single Judge observed that the title to immovable property cannot be left in the air and it is clear that on extinction of the true owner''s title, title must follow possession and vest in the trespasser who has got a title by possession.

A number of instances under the various Acts can be quoted. For instance in Dalip Rai v. Deoki Rai I L R 21 All. 204 the question related to a right of a tenant who was wrongfully dispossessed and for whom the remedy provided u/s 95 (n) of the North Western Provinces Rent Act, 1881 was to apply for restoration of possession within six months. He did not do so. The Court held that under the provisions of section 96 (e) of that Act not only remedy but right of the tenant to possession extinguished. In Ambalam and Others Vs. V.R.M. Peria Karuppan Chetti and Others, , the Court was concerned with the right of a landlord to recover possession from the tenant. The facts already proved were that the tenant''s tenancy was determined but the landlord had not taken any steps for recovery of possession within 12 years thereafter. Since a suit was filed after the period of limitation was determined, the learned Judges held that as an effect of section 28 read with Article 139 of the then Limitation Act, the plaintiff''s title itself was lost.

Instances can be duplicated of this kind but it is not necessary to do so. The principle is plainly established that section 27 of the present Limitation Act represents a case where the effect of the determination of the period of limitation for instituting a suit for possession of any property, is that the right to such property itself being extinguished.

If that is so, what is the position of the present respondent who calls himself a debtor. The mortgage relating to which he made an application is dated July 30, 1897. It is a possessory mortgage and a certified copy is on the record. No period has been laid down for the redemption thereof. Therefore, the period for the redemption would be 60 years from the date of the possessory mortgage. Admittedly nothing was done till July 30, 1957. The effect was that for almost 18 years before the present Act was passed not only the remedy of the respondent to redeem the property was lost but his right to recover that property itself was extinguished. In view of the precedents discussed above, and more particularly the judgment of the then learned Chief Justice of this Court in Fakirappa vs case (supra), not only the respondent has lost title to the property but the present petitioner the mortgagee so called, has become the owner of the immovable property. In other words there is no mortgaged property at all today when the Act is passed. What the Act requires is to return the "mortgaged property" to the debtor under the provisions of clause (e) of section 4. The above discussion will show that there is no mortgaged property any more. The property in dispute now belongs to the petitioner himself and the respondent has lost title to it. The effect of the order of the Tahsildar is to direct the handing over of the property of the petitioner to the respondent. This is not the purpose of the present Act at all.

I might point out cursorily from a reported judgment what consequence can follow if any other view is taken of the provisions of the present Act. In Indurai Bhaurai Desai Vs. Shivlal Nabhubhal, a suit was filed in the year 1916 for redemption of a mortgage-deed dated 8-6-1761. It was alleged that there was an acknowledgment in 1858. The suit was dismissed by the High Court on two different grounds. One was that the so-called acknowledgment of 1858 was not within 60 years from the date of the original mortgage and the other ground was that under the provisions of section 29 of the Limitation Act of 1871 which was similar to the provisions of section 28 of the Limitation Act of 1908 and 27 of the present Limitation Act the right of the mortgagor itself was extinguished and the suit could not be entertained.

Let us now suppose that the heirs of the mortgagor under that deed of 1761 can be held debtors under the present Act. Can they now apply that the mortgaged property should be returned because a suit by the mortgagor may be barred by limitation but the debt of 1761 is now extinguished. Could it ever be said that the Legislature intended to rake up such old ghosts and create an impossible situation. I am clearly of the view that the Maharashtra Legislature never intended to provide for the raking up of such time-barred claims. I need not further speculate upon this subject. If such claims were permitted to be agitated unforeseen and impossible consequences may follow.

What is to happen if what was open site of land once at the date of the mortgage is now divided into plots and several purchasers have built houses on the land. Are they all to pull down their bungalows and hand over the vacant land to the debtor. I have taken this instance which became handy as the judgment in Indura vs case (supra) was cited before us for showing that even social laws with a laudable object cannot be unreasonably interpreted as to create impossible situations.

I have therefore no doubt that a time barred claim which is not an "outstanding" claim still "due and payable" on the date of the appointed day was never intended to be covered by the provisions of the Act. The Definition of the debt and debtor must, therefore be so construed as to give the debtor relief only against debts which were still recoverable against him on the appointed day. I have no doubt that the wording of the Act itself is clear and does not permit any other interpretation. Even if it were to be assumed that the language is vague and is capable of two different meanings the one which is realistic and does not lead to unforeseen and absurd results alone must be accepted and not the other.

Some judgments relating to the Punjab Debt Relief Act and a similar measure from U. P. were cited before us. I do not consider any reference or discussion of them is necessary as the Acts passed by the Punjab and U. P. Legislatures expressly refer to the debts within limitation. In my view the Maharashtra Legislature has done the same thing, though the language used is slightly different than the terminology of those Acts. On behalf of the debtor Mr. Hombalkar brought to our notice certain observations of the Supreme Court in Bombay Dyeing and Manufacturing Co. Ltd. Vs. The State of Bombay and Others, . The situation before the Supremt Court was entirely different. The question was whether the Bombay labour Welfare Fund Board was entitled to recover from the company arrears of wages relating to employees when the recovery of the wage as a debt had become time barred, so far as the debtor is concerned. The Supreme Court pointed out that the debt might have been barred by time but it is not extinguished. If a statutory provision requires the transfer of such a debt to a body like the Bombay Labour Welfare Fund Board, the bar of limitation is no reply. It is in that context that a general observation was made that a debt barred by limitation is not the same thing as its extinction. I do not think that this judgment can have any effect upon the interpretation of the provisions of that Act in view of my detailed discussion above.

In my view, therefore, the respondent No. 1''s petition relates to a time barred debt and is not covered by the provisions of section 4 of the Act. This petition therefore must be allowed and the respondent No. 1''s original petition before the Tahsildar must be dismissed. I would therefore make the rule absolute. In the peculiar circumstances of the case I would further propose that there should be no order as to costs.

Mridul J.

Respectfully disagreeing with my brother Deshmukh J., I am firmly of the view that this writ petition deserves to be dismissed. Having regard to the great esteem that I have for my learned brother I have given most anxious consideration to the questions which arise in this petition. Inexorable legal determinants which in my opinion govern the case however lead to the inevitable result that the contentions raised on behalf of the petitioner herein are untenable and deserve to be rejected.

On or about 30th July 1897 one Babaji Nanu Sutar mortgaged three pieces of land in favour of Nagoji Yeso and Raoji Rama Sankpal. It was an usufructuary mortgage to secure repayment of a debt of Rs. 5000. The amount of Rs. 5000 as recitals in the deed of mortgage show comprised an earlier loan and certain other costs and expenses. In 1897 the said Nagoji conveyed by a deed of assignment his moiety of the said debt and the said mortgage to the said Raoji Rama Sankpal. The present petitioner is one of the sons of the said Raoji. Respondent 1 Chandrakant Dnyanu Sutar is a descendant and an heir of the said Babaji Sutar. He claims to be entitled to I /6th share in the estate of the said Babaji Sutar who died long ago.

On 22nd August 1975 the Governor of Maharashtra promulgated the Maharashtra Debt Relief Ordinance. On 3rd January 1976 the Maharashtra Debt Relief Act, 1975, being Act No. 3 of 1976 (hereinafter referred to as the Act) replaced the said Ordinance. By section 3 of the Act all debts covered by the said Ordinance are revived The said section further provides "that the provisions of the said Ordinance as amended by this Act shall operate in relation to all the said revived debts as if those provisions were always amended and in operation on the appointed day." The Act comprises six chapters and 33 sections. In some respects the Act makes departures from the provisions of the Ordinance but in aspects material for the present controversy the provisions of the Act are in pari materia with those of the Ordinance. It may also be observed that both the Ordinance and the Act are referable to the legislative power under Entry 30, List II of the 7th Schedule to the Constitution. Both the Ordinance and the Act as the long title, preamble and the statement of objects and reasons show are intended to provide "relief from indebtedness". The Act received the assent of the President and was published on 3rd January 1976. The Act has been given retroactive operation with the consequence that the appointed day thereunder is 22nd August 1975. The Act initially was intended to remain in force for a period of one year commencing on 22nd August 1975. The Act, however, conferred power on the State Government to extend it for a further period not exceeding in the aggregate two years. By a notification dated 2lst August 1976 published in the Maharashtra Government Gazette dated 19th August 1976, Part IV B at page 963 the operation of the Act has been extended to 22nd August 1977.

On 8th July 1976 with a view to taking advantage of the provisions of the Act one Appaji, brother of respondent 1 gave notice to the petitioner demanding surrender of the possession of the mortgaged pieces of land. As the petitioner did not comply with the requisition contained in the said notice, on 17th June 1976 respondent 1 filed an application inter alia for a declaration that he was a debtor and that the debt secured under the deed of mortgage dated 30th July 1977 was discharged and he was entitled to the reconveyance or the release of the pieces of land mortgaged thereunder. The said application was resisted by the petitioner on several grounds. The principal contentions however were that respondent 1 was not a debtor, that he was not entitled to any relief under the Act inter alia by reason of the fact that the claim by respondent 1 for redemption of the mortgaged properties was barred by limitation. The Tahsildar, kagal who decided the application found that both respondent I and his brother Appaji were marginal farmers within the meaning and for the purposes of the Act. He also found that the share of respondent 1 inter alia worked out to 76|R that is less than one hectare. The Tahsildar accepted the plea that the claim of respondent 1 for redemption of the mortgaged properties was barred by limitation. Nonetheless the Tahsildar was of the view that the debt subsisted on the appointed day and was accordingly discharged under the provisions of the Act. According to the Tahsildar, respondent 1 was entitled to the release of the mortgaged property u/s 4 (o) read with section 6 of the Act. In the result the Tahsildar granted the requisite declaration and made a direction for possession of 1/6th share of the respondent 1 in the mortgaged property after obtaining formal sanction from the Collector under the provisions of the Bombay Prevention of Fragmentation and Ceiling on Holdings Act.

In support of the claims of the petitioners herein Shri Hombalkar the learned counsel for the petitioners urges three contentions. The said contentions may be summarised as under:�

(1) The transaction recorded or evidenced by the deed of mortgage dated 30th July 1897 was not a money-lending transaction within the meaning and for the purposes of the Act and accordingly by virtue of the provisions of section 22 (g) thereof, the Act had no application to the transaction in question.

(2) On 22nd August 1975 which is the appointed day there was no debt outstanding so as to attract the provisions of the Act more particularly of section 4 thereof.

(3) Under the deed of mortgage dated 30th July 1897 no specific period was prescribed for redemption of the debt. The period of limitation in respect of redemption of the mortgaged property being 60 years expired in the year 1957. On the expiry of the said period under the provisions of section 28 of the Indian Limitation Act, 1908 corresponding to section 27 of the Limitation Act, 1963 the title of the mortgagor in the mortgaged property was extinguished. That being so, there was cessation of the relationship of the mortgagor and mortgagee between the petitioners'' predecessor-in-title and that of respondent 1. There being no outstanding mortgage, no release of any mortgaged property as contemplated by the Act is possible.

Shri Kanade, the learned counsel for the respondent 2 supports the order of the Tahsildar on the grounds which may be summarised as under:�

(1) Neither section 28 of the 1908 Act nor section 27 of the 1963 Act apply to the present case inasmuch as the said sections take within their sweep suits for possession of the properties but do not apply to the cases of applications for "possession of any property".

(2) The Act is a special Act and a self contained code. It excludes the jurisdiction of the civil Court by express mandate of section II thereof. There being no specific period of limitation postulated by the Act no other section other than sections 4 to 24 of the Limitation Act, 1963 applies to the present case. In other words the embargo contained in section 3 or the injunction of section 27 of the 1963 Act does not govern the present controversy.

(3) expiry of the period of limitation does not wipe out the debt. Under the law a debt is extinguished only by the payment thereof. In the present case no payment whatever was made by the mortgagor. Accordingly the debt continued and was outstanding on the appointed day with the result that the benefit intended by the Act is available to respondent 1.

(4) Under the provisions of the Transfer of Property Act, there is a distinction between right of redemption and the existence of a mortgage debt or the mortgaged property. Under the provisions of the Transfer of Property Act read with the provisions of the Limitation Act the extinguishment of the right of redemption does not render the mortgage non-est. A mortgage exists so long as the mortgage debt is not paid of. Both the debt and the mortgage subsisted on the appointed day. In accordance with the mandate of section 4 (e) of the Act, it was and is a statutory obligation of the petitioner to return the mortgaged property to respondent 1 who admittedly is a debtor within the meaning and for the purposes of the Act.

Shri Babasaheb Bhonsale, the learned counsel for respondent 1 merely adopts the arguments canvassed by Shri Kanade. He, however, supplements the contentions of respondent 2 by further submitting that there is no prohibition in law for the debtor to repay the loan. Thus both in law and in fact the debt was outstanding on the appointed day so as to attract the provisions of the Act.

Relief from rural indebtedness is one of the objectives postulated by the directive principles of the State policy contained in Chapter IV of the Constitution. It is an essential measure of social welfare calculated to benefit the economically backward sections of Indian community. The provisions of the said Act in my opinion must receive a benevolent construction. In light of this approach to the problem the relevant provisions of the Act may be noticed. Section 2 (e) of the Act by its material provision defines "debt" as meaning any liability outstanding on the appointed day being a liability arising out of a loan, whether secured or unsecured due from a debtor, whether payable under a decree or order of any Court or otherwise. Section 2 (f) of the Act includes a marginal farmer in the definition of debtor given thereunder. Section 2 (h) defines a marginal farmer as an agriculturist who holds land measuring not more than one hectare of unirrigated land and includes therein an agriculturist who cultivates as a tenant or a share-cropper land measuring not more than one hectare of unirrigated land. Section 4 of the Act inter alia provides that notwithstanding anything contained in any law for the time being in force and save as otherwise expressly provided in the Act every debt of a debtor outstanding on the appointed day shall be deemed to be wholly discharged. The said section further provides for the legislative consequences flowing from the discharge of such outstanding debt. Consequences are enumerated in clauses (a) to (e) of the said section. Other clauses are not material but clause (e) which is pertinent may be noticed Under clause (e) there is a provision not only for the release of the mortgaged property in favour of the debtor but an obligation is cast upon the creditor to return the same to the debtor forthwith on the debtor making an application in writing in that behalf. Section 6 of the Act confers upon the officers enumerated therein power to enforce delivery of possession of the property to the debtors. Section 22 of the Act providing for exemption inter alia ordains by clause (g) thereof that the provisions of the Act would not apply to any claim arising out of the contract or transaction not connected with money lending.

The contention of the learned Counsel Shri Hombalkar that the Act does not apply to the facts of the present case because it cannot be said that the transaction recorded in or evidenced by the deed of mortgage dated 30th July 1897 is without any substance. It must be observed that no such plea was taken before the Tahsildar. No such ground has been taken in the present writ petition. The question whether the transaction is recorded in or is evidenced by the deed of mortgage dated 30th July 1897 relates to money lending is a question of fact. This Court would be reluctant to permit such a factual plea to be raised at the time of the hearing of the petition. Even otherwise I do not find any substance in the contention. A bare perusal of the deed of mortgage establishes that a sum of Rs. 5,000 mentioned therein as a mortgage debt included amounts of loan which were advanced at an earlier stage to the mortgagor mentioned therein. There is no escape from the conclusion that the deed of mortgage was intended to secure repayment of a loan of Rs. 5,000. That the loan was a money lending transaction is very clear because it was in respect of prior loan and it also contemplated the payment of interest. 1 have, therefore, no hesitation in rejecting the contention that the provisions of section 22 (g) apply to the facts of the present case.

Contentions 2 and 3 raised by Shri Hombalkar may be considered together. The validity or acceptability of these contentions will depend upon the true construction ol the provisions of the Act seen within the setting of the scheme, intendment and purposes thereof as also ia the context of the true nature, content and meaning of the concepts of the ''debt'' and ''mortgage'' and the impact that the bar of limitation has on those concepts. Section 2 (e) defines debt but in the focus of the section is the liability, whether in cash or kind, A liability under the said provisions is the one which arises out of a loan whether secured or unsecured. It must be due from a debtor as defined in section 2 (f). A marginal farmer is a debtor under the latter provision. By categorical imperatives of section 4 debtors who come under the coverage of the Act are redeemed of their liability. Section 4 is a key section of the Act. It is a non-obstante section and overrides anything to the contrary contained in any law for the time being in force or any contract or instrument having force by virtue of any law. The mandate of the section is that every debt of a debtor of the description mentioned therein which is outstanding on the appointed day should be deemed to be wholly discharged. The Legislature was not satisfied merely with the deemed discharge of the liability. It therefore proceeded to buttress the said discharge by enumerating consequences which should follow. Amongst the effects enumerated therein those relevant for the purposes of the present petition are the ones set out in clauses (a) and (e). Under clause (a) of section 4 any debt due from a debtor on the appointed day becomes irrecoverable from him or from or against any of his movable or immovable property. The property of such a debtor also becomes immuned from liability to attachment or sale or to be proceeded in any manner in execution of any decree or order relating to such a debt. The significance of clause (a) in the context of the present controversy lies in the fact that the expression used in the said clause is that "no such debt___shall be recoverable from a debtor or his property" as contrasted with the expression used in the opening part of section 4 reading "every debt... .. ., . payable by a debtor shall be deemed to be wholly discharged." In other words, whilst clause (a) uses the expression "irrecoverable", in the opening part the expression used is "payable". As to what significance is to be attached to the use of these two different expressions will be adverted to later. Clause (e) of section 4, it must be observed, does not in terms provide for the discharge of the mortgages or the extinguishment of the rights of the mortgagees. It postulates release of the mortgaged property and return thereof to the debtor. The adjective ''mortgaged'' qualifies the noun ''property''. Clause (e) ordains that every property pledged or mortgaged by such debtor shall stand released. Negative aspect of the release of the pledged property is hadged in with a positive injunction to the creditor to return the pledged property to the debtor forthwith on the debtor making the application in writing in that behalf A bare reading of clause (e) leaves no manner of doubt that the questions of either redemption or the statutory right of reconveyance on payment by a mortgagor or the right of foreclosure or sale by the mortgagee are not in the focus of the clause. The clause merely postulates, as consequence of the discharge of the debt, that the property mortgaged by the debtor should be released in favour of the debtor and that it is the statutory obligation of the creditor to return the mortgaged property to the debtor forthwith. It may also be observed that the expression used in clause (e) is the property pledged and mortgaged by a debtor. The expression "pledged" or "mortgaged" is an adjectival expression which identifies the "property". In other words, the clause merely points out the property which is to be released and in respect whereof a statutory obligation is cast upon the mortgagee to return it to the mortgagor forthwith. In my opinion clause (e) is couched in such words as cut adrift the consequences postulated therein from the moorings of normal principles which govern mortgagee-mortgagor relationship under the provisions of section 60 and the cognate sections of Transfer of Property Act. It is also of significance to notice that there is in section 4 no evidence that the sweep of the section has to be expressly or impliedly curtailed with reference to the bar prescribed by the law of Limitation. The only manner in which the wide amplitude of section 4 is sought to be curtailed by the Legislature is to be found in the Explanation 1 to the said section. Explanation I to the section takes out of the purview of section 4 a debt which has already been repaid or recovered before the appointed day. Having regard to the enumeration of limitation in Explanation I it will be reasonable to assume that no other limitations were intended to apply to whittle down the width and the amplitude of the coverage of section 4 of the Act.

Section 5 buttresses the obligation of the mortgage to return the mortgaged property to the mortgagor or release of such property in favour of the mortgagor. It prohibits a creditor from damaging or destroying or tampering with any mortgaged property or any document connected therewith or part with or otherwise deal with the mortgaged property. Non-compliance with the prohibition contained in the section enures penalty as provided by subsection (2) of section 5. Section 6 confers powers upon certain officers to enforce delivery of possession of the mortgaged property.

The salient features of the Act material for the present controversy as thrown up by the combined reading of sections 4, 5 and 6 may be summarised as follows: (a) debt of the description covered by the Act and outstanding on the appointed day stands wiped out; (b) that the mortgaged property stands released in favour of a debtor; (c) that an obligation of peremptory character is imposed upon the creditor to return the property which was mortgaged by the debtor, and (d) that legal mechanics is provided to effectuate right of the debtor and obligation of the creditor; a group of officers mentioned therein are empowered to enforce delivery of possession in favour of debtor.

The application of principles underlying the above-mentioned features presents no difficulty in a situation where the claim of a debtor mortgagor is not barred by law of limitation But in a case where the claim of a mortgagor is barred by law of limitation, can it be predicated in favour of such a mortgagor that the principles culled out above would still apply and redeem such a mortgagor from the indebtedness? This is the crux of the matter; the heart of the controversy. According to the learned counsel Shri Hombalkar the effect of the expiry of period of limitation in law is that a debt ceases to be a debt and consequently a mortgage ceases to be a mortgage. The learned Counsel emphasises that not only is there a cessation of the debt or the mortgage but the effect of the provisions of section 27 of the 1963 Act is that the right of a mortgagor is totally extinguished and the mortgagee becomes owner of the mortgaged property. The learned Counsel submits that the cumulative effect therefore is that there is no debtor and creditor relationship nor is there any mortgagor-mortgagee relationship outstanding on the appointed day. Consequently the rights which vest in the erstwhile mortgagee are not hit by the mischief of section 4 and other cognate sections of the Act. The Tahsildar in his order under challenge refers to the adage that debt is always a debt. In other words a debt subsists until it is discharged. This is a legal truism. A debt can be discharged only by repayment thereof or by operation of law which creates legal fiction of deemed payment; such cases being normal features of legislation dealing with debt-scaling or debt-liquidation. I am not aware of any legal principle nor has any such legal principle been brought to my notice to induce me to take the view that debt ceases to be a debt merely because the creditor''s claim to recover it is barred by the law of limitation. On the contrary it is an established law that expiry of the period of limitation merely bars the remedy. It c''oes not render either the right or the liability non-est In Bombay Dying and Mfc. Co, Ltd v. State of Bombay AIR 1956 S C 329 the Supreme Court had to consider the impact of the law of limitation on accumulation of the wages of workers after the period of limitation in respect thereof expired. The argument before the Supreme Court was that on the expiry of the period of three years after the wages became due no transfer of such unpaid accumulation was legally possible since such amounts were not payable. On rival contentions of the parties the Supreme Court posed the following question at page 335: "On this, the question arises for consideration whether a debt which is time-barred can be the subject of transfer, and if it can be, how it can benent the Board to take it over if it cannot be realised by process of law." The question was answered by the Supreme Court in the following words at page 335:

''Now it is the settled law of the country that the statute of limitation only bars the remedy but does not extinguish the debt Section 28 of the Limitation Act provides that when the period limited to a person for instituting a suit for possession of any property has expired, his right to such property is extinguished and the authorities have held�and rightly that when the property is incapable of possession, as for example, a debt, the section has no application, and lapse of time does not extinguish the right of a person thereto. u/s 25 (3) of the Contract Act, a barred debt is good consideration for a fresh promise to pay the amount. When a debtor makes a payment without any direction as to how it is to be appropriated, the creditor has the right to appropriate it towards a barred debt. (Vide section 60 of the Contract Act). It has also been held that a creditor is entitled to recover the debt from the surety, even though a suit on it is barred against the principal debtor. Vide Mahant Singh v. U. Ba Yi AlR 1939 IA 71981, Subramanta Aiyar v. Gopala Aiyeri I L R 83 Mad, 80 and Dil Mohammad v. Sain Das AIR 1927 Lah. 396, And when a creditor has a lien over goods by way of security for a loan, he can enforce the lien for obtaining satisfaction of the debt, even though an action thereon would be time-barred. Vide Narhndrala Lal Khan Vs. Tarubala Dasi, . That is also the law in England. Vide Halsbury''s Laws of England (Hailsham''s Edition) Vol. 20, page 602, para 756 and the observations of Lindley L. J. in Carter v. white (1893) 25 Ch. D 666 at p. 672 and of Cotton L. J. in Curwen v. Milburr (1889) 42 Ch. D 424 at P. 434. In American Jurisprudence, Vol.34, page 314, the law is stated:

"A majority of the Courts adhere to the view that a statute of limitations as distinguished from a statute which prescribes conditions precedent to a right of action, does not go to the substance of a right, but only to the remedy. It does not extinguish the debt or preclude its enforcement, unless the debtor chooses to avail himself of the defence and specially pleads it. An indebtedness does not lose its character as such merely because it is barred, it still affords sufficient consideration to support a promise to pay and gives a creditor an insurable interest."

In Corpus Juris Secundum, Vol. 53, page 922 we have the following statement of the law:

"The general rule at least with respect to debts or money demands, is that a statute of limitation bars, or runs "Against the remedy and does not discharge the debt or extinguish or impair the right, obligation, or cause of action."

The Supreme Court then stated the law as follows:�

"The Position then is that under the law a debt subsists notwithstanding that its recovery is barred by limitation."

Having regard to the rule authentically laid down by the Supreme Court as aforesaid there is no escape from the conclusion that even a debt recovery whereof had become barred by law of limitation prior to the appointed day was still a debt which subsisted on the appointed day and consequently came under the coverage of the Act. It is undoubtedly true that even prior to the appointed day the creditor could not recover the said debt but in the focus of the attention of the opening part of section 4 is not the recoverability of the debt but the payability thereof. It is a trite legal principle to expound that so long as a debt subsists the debt is payable by the debtor because concept of debt is inseparable with the concept of payability. The learned Counsel submits that the expression "payable" occurring in the opening part of section 4 must receive its colour from the expression "recoverable" mentioned in clause (a) of section 4. I do not see any warrant for such a suggestion. Clause (a) merely enumerates one set of the consequences. It puts an embargo on the creditor. It makes explicit a bar which is otherwise implied in the concept of discharge. But the bar is against the creditor. It is no conferment of a right on the debtor in the sense of immunisation of a debtor which is the major thrust of the opening part of section 4 viz. wiping out of indebtedness and discharging wholly the debt of the debtor.

Provisions of section 58 of the Transfer of Property Act show that a transaction of a mortgage is merely a transaction of a debt secured by transfer of interest in any specified immovable property. Mortgage is a combination of a contract of debt and conveyance by way of security for payment of that debt. Conceptually existence of debt cannot be divorced from the mortgage It is, therefore, accepted as a legal truism that in a mortgage there must always be a debt. Such a debt is always held to be a pecuniary liability�pecuniary liability of monetary character. Inseparable character of pecuniary liability and transfer of property to secure the discharge of such a pecuniary liability is emphasized by the dicta of the Supreme Court judgment in Smt. Rajkumari v. Bawa Pritam Singh A I R 1960 SC 1031, It was a case under the Displaced Persons (Debt Adjustment) Act, 1961 and the question that arose was whether the expression "pecuniary liability" under the said Act included mortgage debt. The Supreme Court took the view that the said expression pecuniary liability covered mortgage debt also. The observations of the Supreme Court in that behalf at pages 1031 and 1032 are as follows :�

"Now the definition of a mortgage in section 58 of the Transfer of Property Act, No. 4 of 1882 shows that though it is the transfer of an interest in specific immovable property the purpose of the transfer is to secure the payment of money advanced or to be advanced by way of loan or to secure an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability. It is true that a mortgage in addition to creating the pecuniary liability, also transfers interest in the specific immovable property to secure that liability; none the less the loan or debt to secure which the mortgage is created will remain a pecuniary liability of the person creating the mortgage."

The legal terminal of the mortgage and the debt are co-existent. Sections 60, 62, 67 and 72 of the Transfer of Property Act do not detract from the aforesaid legal position. Section 60 provides for the right of redemption by a mortgagor. Section 62 provides for the recovery of possession by a mortgagor in case of a usufructuary mortgage upon liquidation of the mortgage debt. Section 67 confers right of foreclosure or sale upon the mortgage. These provisions by themselves underpin the inextricable co-existence of the mortgage and the debt. They merely effectuate the rights depending upon the payment or non-payment of the mortgage debt. This is illustrated in a situation where by operation of law debt is discharged and in such a situation the law predicates in favour of the mortgagor a statutory (or an equitable) right to recover possession. It was upon the said principle that it was held in Prithi Nath Singh and Others Vs. Suraj Ahir and Others, that where mortgage money has been paid the mortgage comes to an end and what survives is a mere statutory right of the mortgagor to recover possession. In Prithinath Singh''s case the Supreme Court dealt with consequence of payment of the mortgage debt in case of an usufructuary mortgage. In an earlier judgment while construing the provisions of sections 3 and 4 of the Bihar Land Reforms Act the Supreme Court had taken the view that by reason of the payment of the mortgage debt the mortgage ceased to exist. In Prithi-nath''s case the review of the said earlier judgment was sought on the ground that even though the amount of the mortgage debt was paid the mortgage subsisted because the mortgagor had a right of reconveyance of the property. The argument was that the mortgage continues till the right of redemption continues. It was in this context that the Supreme Court observed at page 1042 as follows:�

"When the mortgage money is paid by the mortgagor to the mortgagee there does not remain any debt due from the mortgagor to the mortgagee and therefore the mortgage can no longer continue after the mortgage money has been paid. The transfer of interest represented by the mortgage was for a certain purpose and that was to secure payment of money advanced by way of loan. A security cannot exist after the loan had been paid up. If any interest in the property continues to vest in the mortgagee subsequent to the payment of the mortgage money to him, it would be an interest different from that of a mortgagee''s interest. The mortgage as a transfer of an interest in immovable property for the purpose of securing payment of money advanced by way of loan must come to an end on the payment of the mortgage money."

It is undoubtedly true that the principle culled out above dealt with a case where the contention was that the mortgage came to an end on payment of mortgage debt. Implicit in the principle however is the converse thereof viz. that so long as the mortgage debt is not paid or so long as the mortgage debt subsists it must be posited that the mortgage subsists. If the debt subsists, the security for repayment thereof must also subsist. If therefore I am correct in my view that on the appointed date the debt incurred by a predecessor of the respondent 1 was outstanding, it will have to be held that the mortgage of the pieces of land to secure the redemption of such a debt also subsisted on the appointed day.

Section 4 emphasises the outstanding character of the debt. Dictionary meaning of the expression "outstanding" according to Random House Dictionary of the English Language (page 1024) is as follows :�

"1. Prominent, conspicuous, striking; an outstanding example, 2 continuing in existence; remaining unsettled, unpaid, etc.; outstanding debts. 3. standing out; projecting; detached; a stiff outstanding fabric. 4. Archaic that resists or opposes."

It must, therefore, be seen that outstanding debt is a debt which remains unsettled and unpaid It cannot be disputed that on the appointed day debt was not paid. The intent of the provisions of the Limitation Act is not to treat a time-barred debt as a debt which is settled or as a debt which is paid. That is not the effect of the provisions of the Limitation Act. It is an Act which merely deals with the right to enforce remedies. It must, therefore, be held on the facts of this case that debt was outstanding on 22nd August 1975 notwithstanding the fact that the mortgagor''s remedy for redemption was barred by law of limitation.

Shri Hombalkar emphasises that the true effect of section 28 of the Limitation Act, 1908 (or for that matter section 27 of 1963 Act) is that upon the expiry of the period prescribed by law of limitation for redemption of the properties i. e. to say in 1957 the title of the mortgagors in the pieces of land mortgaged in favour of the predecessors of the petitioner was extinguished. The learned counsel is undoubtedly true in so far as the said contention goes. But the learned counsel is not justified in inviting the Court to infer therefrom that the result of the extinguishment of the title of the mortgagor in the pieces of land in question constituted as it were a transfer of the title or vesting of the title in the mortgagee as the absolute owner of the pieces of land in question. Section 27 of the Limitation Act, 1963 (which is the same as section 28 of 1908 Act) provides as follows : �

"27. Extinguishment of right to property at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished."

Shri Kanade, the learned counsel for the Collector submits that section 27 has no application. According to him the said section has application only to cases where recovery of the property is sought by means of a suit and not by means of an application. The learned counsel contends, that since the application is provided for under the provisions of the Act, the provisions of section 27 of the Act are out of the way and do not govern the situation. I am not impressed by the contention. Section 27 of the Limitation Act is not merely a procedural section. It is a substantive provision which inter alia provides that upon the determination of the period of limitation for institution of a suit for possession of the property the right of a person in such a property is extinguished. There is no running away from the fact that in order to redeem the property mortgaged a mortgagor has to bring his suit within a period of 60 years under 1908 Act and 30 years under 1963 Act. If the mortgagee fails to file a suit for possession of the mortgaged property within the period of limitation prescribed as aforesaid the injunction of the section is that "his right to such property shall be extinguished." In other words the mortgagor''s right to redeem the property is extinguished by the express mandate of the section. I, therefore, reject the said contention. To negative the contention of Shri Kanade, however, does not amount to upholding the argument of Shri Hombalkar.

In England in regard to a similar provision Lord St. Leonards expounded the principle of statutory conveyance. The said principle was expounded in the case of Incorporated Society v. Richards 1 Dr. & W 258, Scott v. Nixon 3 Dr. & W 388 and Borrougha v. AfCreight 1 Jo. & Lat. 290. Park B, expressed the same principle but used the nomenclature "Parliamentary conveyance" in Doe Jukes v. Summer 14 M&W 9. According to the learned Judge the effect of expiry of period of limitation was that "right and title of the real owner are extinguished and are in effect transferred to the person whose possession is ''barred''." The doctrine of statutory or parliamentary conveyance was expressly dissented by the unanimous English Court of Appeal in Tichborne v. Pair (1892) 67 LT 735. In that case dealing with the concept or the principle enunciated by Lord St. Leonards, Lord Seher M. R. at p. 736 rejected it by referring to the statement of law by Haynes "on Conveyencing" at p. 736. The learned Judge quoted with approval a passage from the said book as follows:

"Haynes in the marginal note in the Book on Conveyancing says:� ''All these reasons show that the effect of the statute is not that a right of one person is conveyed to the other but that right is extinguished and destroyed.'' "

Bowen L. J. dealt with the concept in the following words at page 737:

"It is argued that the extinguishment of the title must have the effect of transferring the term to the man in possession, although there is no mention in the statute of any transfer. The argument is really an overstraining of the words used by Lord St. Leonards in the Incorporated Society v. Richards (ubi sup.) and of Parke B. In Doe v. Summer (ubi sup) and a construing of them to mean more than what is said in the Act. It is true that the effect of the article is not only to bar the remedy but also to extinguish the title of the person in possession holds by virtue of the Act, but not by a fiction of a transfer of title."

A little later the learned Judge referred to the concept as being only metaphorical and not legal. Key L. J. also dealt with the concept in the context of the provisions of the Act which extinguished the title upon the expiry of the period prescribed by the statute. As page 738 the learned Judge observed as follows:�

"There is no authority for saying that this is the meaning of the Act. Great textbook writers may be quoted to show the general opinion of the profession at the time. Mr. Dart and Mr, Hayes are quite opposed to the correctness of the argument now put forward. Passages have been read from the judgments in which the word ''transfer'' has certainly been used."

Derby and Bosenquet in their book "Statute of Limitation" (2nd Ed. page 493) Summarise law as follows:�

"It has been said that the effect of the statute is to execute a conveyance to the person in possession, and not merely to extinguish the right of the former owner, but to transfer the legal fee simple. But the truer view is that the operation of the statute in giving a title is merely negative; it extinguishes the right and title of the dispossessed owner; and leaves the occupant with a title gained by the fact of possession, and resting on the infirmity of the right of others to eject him."

The concept of parliamentary or statutory conveyance was also rejected by the English Courts In Re Atkinson and Horske''s Contract 1912 (2) Co. 1 as also in Taylor v. Twinborough 1930(2) KB 16. The recent statement of law as to the true effect of the bar of limitation is by Halsbury in Laws of England, 3rd Ed. Vol. 24 at p. 258. After noticing the extinction of the title, Halsbury deals with the nature of the title which is acquired as follows:�

"Nature of the title acquired:�The operation of the statutory provision for the extinction of title is merely negative; it extinguished the right and title of the dispossessed owner and leaves the occupant with a title gained by the fact of possession and resting on the infirmity of the right of others to eject him."

It will, therefore, be seen that there is no conveyance of any title in favour of a mortgagee by reason of the fact that the mortgagor did not adopt proceedings for redemption within the period prescribed by law of limitation. In light of the aforesaid principles on the facts of this case the irresistible conclusion is that even though the period of limitation expired in 1957, yet the title of petitioner or his predecessor was not conveyed so as to make Respondent 1 or his predecessor an absolute owner of the said pieces of land.

Shri Hombalkar refers to a judgment of the Privy Council in Fatimatulnisa v. Sunderdas 27 IA 103. All that the Privy Council lays down in the said case is that the mortgagor''s suit for possession undir a usufructuery mortgage is barred by limitation unless it is brought within the period prescribed in that behalf or unless an acknowledgment of the mortgage is given in terms of the covenant between the parties. Equally unhelpful is the invocation of the rule laid down by this Court in Indurai v. Shivlal 27 Bom. LR 467. It is a case where this Court was called upon to consider the effect of acknowledgment that was given after expiry of the period of limitation. The Division Bench of this Court noticed the decision of the Privy Council in Fatimatulnissd''s case (supra) and came to the conclusion that inasmuch as the acknowledgment on which reliance was placed by the plaintiff was given after a period of 60 years it was of no avail. ipsissima verba of this Court at page 1649 runs as under:�

"But the acknowledgment, assuming there was one in J 858 having been given more than 60 years after the date of the mortgage will not avail the plaintiff as it seems in spite of the ingenious argument of the appellant''s counsel that it comes within the decision of the Privy Council in Fatimatulnissa Berum v. Sunder Das I L R 27 Cal. 1004."

The next authority cited by Shri Hombalkar viz. Fakirappa v. Nagappa 45 Bom. L R 491 requires serious consideration. The facts therein may be summerised as follows: One Shivappa (defendant No. 4) who owned an open area of land in Hubli, divided it in two plots. He sold the northern plot bearing C. S. No. 1781/2 to one Appanna on May 8, 1924. At the date of the sale defendant No. 4 who was born on July 7, 1906 was a minor aged seventeen years and ten months. The only means of access to C. S No. 1781 /l Appanna sold C. S. No. 1781 /2 to Danappa on August 11, 1927 and the latter sold it to Fakirappa (Plaintiff) on January 7, 1935. Chanappa (defendant No. 3) who was the brother of defendant No. 4 sold after the latter''s adoption in another family, C. S. No. 1781/1 to Lingappa (defendant No 1) on June 26, 1930. The plaintiff filed the suit against the defendants for an injunction to restrain them from interfering with his passage across the defendant''s plot C. S. No. 1781 /l and to remove the walls obstructing the passage. The defendants inter alia contended that the sale deed on which the plaintiff relied was void on account of the minority of defendant No. 4 when he executed it. The trial Judge upheld the defendant''s contentions and dismissed the suit. The plaintiff appealed to the High Court. The argument before the learned Single Judge of this Court was that though the plaintiff acquired no title under the conveyance of 1924, yet after the period of 12 years'' adverse possession he acquired title u/s 28 of the Limitation Act. The said contention found favour with Beaumont C. J. The learned Chief Justice upheld the contention in the following words:�

"As has been pointed out the section only extinguishes the right, and does not provide in terms in whom that right is to vest. But the title to immovable property cannot be left in the air and it is clear that on extinguishment of the true owner''s title, title must follow possession and vest in the trespasser who has got a title by possession."

(Italics supplied.)

I do not read the aforesaid observations as an authority for the proposition that upon the extinguishment of the owner''s title, absolute title vests in the trespasser. There is no conveyance of any title to the trespasser upon the expiry of the period of limitation. In my opinion the observations merely indicate that all that vests in the trespasser is his right to possession untrammeled by the claim of the true owner or other persons. It is a negative title. It is merely a possessory title. It is in this sense that the Supreme Court characterised such a title in Collector of Bombay v. Municipal Corporation of the City of Bombay and others AIR 1961 S C 469 at p. 475 as a limited title. I am clearly of the opinion that extinguishment of owner''s title does not make the trespasser absolute owner of the immovable property by reason of his adverse possession of extinguishment of the title of the original owner. The learned counsel emphasises that this is not the true effect of the aforesaid observations. The learned counsel asserts that according to the learned Chief Justice there is as if it were vesting of complete and absolute title in the trespasser. I am unable to attribute to the learned Chief Justice an intent to ignore the principles established by a long series of judgments in this branch of law. I do not think that the learned Chief Justice was inclined to accept the principle that as a result of the extinguishment of the title u/s 28 of the Limitation Act, 1908 any title is transferred or conveyed. In any event with great respect I am unable to take the view that there is what Lord St. Leonard called "Statutory" or Park B. called "parliamentary" conveyance in favour of a trespasser. Such an interpretation will add to the language of the said section 28 of the Limitation Act, 1908. The said section 28 nowhere mentions any such consequence In my opinion such an exposition is an unjustified engrafting of a rider on the language of the said section 28. Moreover such principle militates against authentic exposition of law. As to the effect of a corresponding section in the earlier Limitation Act Privy Council''s observations of binding character are to be found in the Ganga Govind Mandal v. Collector of Twenty-four Parganas (1967)Tl M I A 345. In that case while considering the effect of the said section the Privy Council opined that if the owner whose property is encroached upon suffers his right to be barred by limitation, ''''the practical effect is the extinction of his title in favour of the party in possession." The principle laid down by the Privy Council in Ganga Gobind''s case was reiterated by the Privy Council in Lala hem Chand v. Lala Peary Lal 45 Bom. L R 275 at p. 280. It is thus very clear that it may be the practical effect of the extinguishment of a title that the title of the trespasser who retains possessions becomes unassailable for practical purposes. But it does not amount to conferment of any title as a matter of law. I am therefore of the opinion that merely because the right of redemption of the mortgagor''s property was barred by limitation in the year 1957 it can be said that the Predecessor-in-title of the petitioner became the absolute owner of the pieces of land in question. It is of course true that the right of respondent 1 or his predecessor to redeem the property was barred and no suit in respect thereof could lay but this did not make the petitioner or his predecessor absolute owner of the property.

The learned counsel for the Petitioner calles attention to a judgment of the Punjab High Court in Ram Rakha Pal v. Rode and others AIR 1951 P&H. 125. This authority according to the learned counsel supports the proposition that the Act does not apply to a case where period prescribed by limitation expired because the Act is intended to provide for relief from indebtedness and it cannot be said to extend the period of limitation or to revive any right barred under the Limitation Act. It is undoubtedly true that that in the said judgment Kapur J. took the view that there was nothing in the provisions of the Punjab Restriction of Mortgaged Lands Act to show that the provisions thereof were intended to extend the period of limitation. The learned Judge took the view that after the right ceased to exist u/s 28 of the Limitation Act, 1908 there was no right in the mortgagor to apply for and in the authorities any jurisdiction to order restitution of the mortgaged property. The facts of the said case were different. There the period of limitation expired after the appointed day. The learned Judge held upon the construction of the provisions of the said Act that it did save the rights extinguished by section 28 of the Limitation Act, 1908. In that Act emphasis was on the right of redemption. The scheme of the Act is different. I am afraid the Punjab authority sheds no light in respect of the provisions which are material in the present case.

The next authority cited by the learned counsel for the petitioner viz. Sitaram v. Ganga Prasad AIR 1953 All. 623 also does not throw much light on the question which arises in the present petition. It was a case under U. P. Agriculturists Relief Act, 1934 and U. P. Debt Redemption Act, 1940. The Division Bench of the said High Court took the view upon the construction of the relevant provisions of the said Acts that the provisions of the said Acts did not intend to affect the rights of the mortgagees who had before the commencement of the said Acts ceased to be mortgagees and had become owners of the property in their possession. The finding of the Division Bench in that case that the mortgagees had become owners, is, having regard to the proposition which I have noticed above, in my respectful opinion unjustified. It is unquestionably true that after the expiry of the period of limitation the right of a mortgagor to redeem the properly or to recover possession of the property on payment of debt, is extinguished but as already noticed above the extinguishment of this right of the mortgagor does not operate as a conveyance in favour of the mortgagee so as to vest in him absolute ownership of the property mortgaged. In the instant case the predecessor of the petitioner was a mortgagee in possession. The predecessor or petitioner therefore had under the deed of mortgage dated 30th July 1897 a possessory title as a mortgagee in possession. This possessory title continued even after 1957 upon the expiry of the period of limitation for a suit for redemption.

The Act is intended to provide relief from indebtedness to economically backward sections of the Indian community. It is a historical fact of which judicial cognizance can be taken that the rural indebtedness dates back to several decades. This indebtedness generally is of the people steeped in colossal ignorance and unawareness of their rights; people completely oblivious to the legal provisions. From time to time the Legislature recognised the necessity of providing relief to the rural poor in the shape of debt-scaling or debt liquidation laws. Having regard to the express provisions of the Act, the scheme and the intendment thereof are very clear. In cases where debt can be held to be outstanding on 22nd August 1975 the mischief sought to be remedied by the Act is to annihilate such debts and to eliminate all vestiges centring round such debts including the securities offered in connection therewith. Clause (e) of section 4 identifies the property which is to be released and returned to the debtor whose indebtedness is wiped out by the Act. There has been no constitutional challenge to the vires of the provisions of the Act. The question of the legislative competence of the Act is also established in its favour by the judgment of the Supreme Court in Rupchand v. State of Maharashtra dated 29th January 1977 (unreported). The State Legislature having plenary competence to enact the law, effect to the provisions thereof will have to be given. The provisions of the Act cannot be read down to blunt the edges with which it desires to do away with century old shackles of rural indebtedness.

Even assuming that ownership was vested in the petitioner or his predecessor-in-title as a reason of the extinguishment of the right of the mortgagor to redemption, such a title could be legislatively appropriated and abrogated by the Act. Such appropriation would not come within the lethal touch of the Article 31 of the Constitution because it is not an acquisition for public purposes by the State. I do not see any constitutional constraint which prevents the State Legislature from extinguishing a title which is vested in a person by the provisions of section 27 of the Limitation Act, 1963 or of section 28 of 1908 Act. Such abrogation and restoration of the rights to the original owner are within the legislative competence of the Act given the rural indebtedness implied in the transaction. Court is not concerned with the wisdom of the legislation or of expediency of the legislative policy behind the Act. What the provisions of the Limitation Act are supposed to have conferred upon the mortgagee could in my opinion be always legislatively abrogated by the Legislature which is competent to enact a law in respect of rural indebtedness. The argument of the learned counsel that the Act was not intended to affect the vested right is untenable. The Act has by its various provisions postulated abrogations of various vested rights. As noticed in the said Sitaramsingfi''s case (supra) the Agriculturists'' Relief Act and the Debt Redemption Act enacted by the U. P. Legislature did not affect the vested rights but the Court there itself accepted the position that such vested rights could be affected by giving retroactive operation to the provisions thereof. There is no escape from the conclusion that once the test of the debt being outstanding on the appointed day is fulfilled, the provisions of the Act operate retrospectively to wipe out the transactions, decrees, orders, rights and liabilities anterior to the appointed day. It therefore must be held that respondent 1 is entitled to release of the property in his favour and the order of the Collector is justified both in law and on the facts of the case.

In the result I would dismiss the Special Civil Application with costs.

P. C. : In view of the fact that there has been a difference of opinion, it is necessary to refer the disputed points to a third Judge. The two points which are required to be referred to a third Judge are these :�

(1) Whether the provisions of section 2 (e) read with section 4 (a) and (e) of the Maharashtra Debt Relief Act apply to the case of a possessory mortgage, where the debtor has taken no steps to redeem the mortgage within the period of limitation laid down by the Limitation Act.

(2) Even if it did apply, is the debtor entitled to the return of the immovable property mortgaged, u/s 4 (c) read with section 4 (e) of the said Act in view of the provisions of section 28 read with Article 148 of the Indian Limitation Act, 1908 (now section 27 read with section 61 of 1963 Act).

The papers be now placed before the learned Chief Justice for referring the matter to a third Judge.

Deshpande J.

This reference of the Special Civil Application under clause 36 of the Letters Patent is occasioned because of the difference of opinion between Deshmukh and Mridul JJ. on the two points indicated therein. The respondent herein is one of the heirs of the mortgagor owning 2 annas and 8 pies share in the two agricultural lands mortgaged by his ancestor with possession under a registered deed dated 30-7-1897 for a loan of Rs. 5,000 in favour of the ancestor of the petitioner herein. The mortgage deed did not fix any period for repayment and consequently the right of redemption stood expired in the year 1957 in ordinary course under Article 148 of the Limitation Act of 1908 DOW repealed by the Act of 1963 because of nonpayment of the debt thereunder resulting in the extinction of the mortgagor''s title in the lands u/s 28 of the repealed Act.

After the enforcement of the Maharashtra Debt Relief Act of 1975 (hereinafter referred to as ''the Act'') with effect from 22nd August, 1975, the respondent made an application to the Tahsildar, Kagal, on 16th June, 1976 for restoration of the lands to him claiming the mortgage debt to have been discharged by virtue of section 4 of the Act. This application was preceded by a notice dated 8th June, 1976. The petitioner resisted this claim on the ground, amongst others, that the mortgagor''s title and interest in the lands having been extinguished by 1957 on the expiry of the prescribed period of limitation for redemption, or possession, and the Act having not revived the same, the respondent''s claim for restoration thereof was untenable. Neither the debt, so pleaded the petitioner, was outstanding, due or payable to warrant its discharge u/s 4 (a) of the Act nor consequence contemplated u/s 4 (e) could be said to have been attracted.

The Tahsildar overruled this contention of the petitioner, upheld the claim of the respondent, declared the debt to have been discharged and directed him to restore the lands to the respondent. The petitioner disputes the validity of this order in this petition.

Mr. Justice Deshmukh took the view (1) that time-barred claims were not intended to be deemed ''outstanding'', ''due'' or ''payable'' u/s 4 of the Act, and (2) the title of the mortgagor in the lands mortgaged having been statutorily extinguished, the restoration thereof is not warranted u/s 4 (e) of the Act. Mr. Justice Mridul, on the other hand, emphasised the distinction between the discharge of debt "payable" in opening main part of section 4 and mere injunctive mandates against their "recovery" provided in clauses (a) to (d) thereof and pinpointed how the statute of limitation only bars the remedy without extinguishing debt itself which remains payable till it is actually paid or otherwise satisfied or statutorily scaled or discharged. According to him, in cases of pledges and mortgages, liability of the debtor to pay is integrally interlinked with creditor''s liability to restore the property pledged or mortgaged, on the discharge of debt, actual or statutory and such coextensive liabilities survive even when remedies therefor are barred under the Limitation Act. Mr. Justice Mridul further held that extinction of the title of the debtor in the property conceived u/s 28 of the repealed Act or section 27 of the present Limitation Act has not the effect of vesting or conferring it on the creditor. Consistent with these views he held that time barred claims for restoration of pledged or mortgaged property are not excluded from the widely worded clause (e) of section 4 of the Act which directs the release and restoration of such property by the creditor to the debtor, divorcing deliberately from their conventional moorings and concepts of redemption and restoration attached to the same u/s 60 or other cognate sections of the Transfer of Property Act and limitations governing such restrictions. Consistent with their views, while Deshmukh J. was inclined to reject the respondent''s claim, Mridul J. was inclined to uphold the same. Hence reference of the following two questions to third Judge for decision :

"(1) Whether the provisions of section 2 (e) read with section 4 (a) and (e) of the Maharashtra Debt Relief Act apply to the case of a possessory mortgage, where the debtor has taken no step to redeem the mortgage within the period of limitation laid down by the Limitation Act.

(2) Even if it did apply, is the debtor entitled to the return of the immovable property mortgaged u/s 4 (e) (4 (a)) read with section 4 (e) of the said Act in view of the provisions of section 28 read with Article 148 of the Indian Limitation Act, 1908 (new section 27 read with section 61 of 1963 Act)".

Mr. Hombaikar, Mr. Kanade and Mr. Bhonsale, the learned Advocates appearing for the petitioner and respondents repeated the same arguments before me and relied on the same authorities and extensively quoted therefrom in support of their respective contentions, relied on by them before the Division Bench. The main contention of Mr. Hombaikar is that the enactment is aimed at protecting the debtors of certain categories and their meagre resources from legally enforceable debts and restoring to them their properties which they are unable to redeem within the period of limitation for want of resources in spite of their subsisting title therein. There is nothing in the Act to suggest any legislative intent to revive time hatred debts or claims and restore properties arising therefrom in which debtors'' liability stood extinguished before the appointed day. Mr. Kanade and Mr. Bhonsale on the other hand contend that extended relief intended, would remain illusory and ineffective instrument of contemplated social justice unless properties of the debtors are restored to them without regard to the artificial hurdles created by the law of limitation.

Mridul J. upheld the contentions of Mr. Kanade and Mr. Bhonsale on manifold grounds. He has been at pains to emphasise how the words "outstanding", "payable" and "due" are not- restricted only to the legally enforceable loans and how these also cover unpaid loans, even when recovery thereof is barred by statute of limitation, and liability so arising subsists till the same is paid or satisfied otherwise. With respect, there cannot be any quarrel with this general and abstract proposition of law and it is unnecessary to deal with the cases relied on by him in support thereof. The question, however, is not so much as to what these words generally mean and convey, as to what these connote in the context of this Act and specially in overall setting of section 4 of the Act and in the light of the legislative intendment governing this enactment. The legislative intendment again is always, no doubt, a slippery and elusive concept pursuit of the discovery of which is beset with innumerable hurdles. It is required to be culled out from the totality of the provisions and the scheme running thereunder. This process admits of neither smooth sailing or easy and ready answer. One has not only to examine the preamble and the provisions carefully but to find out which evils, the provisions were ironed out to eradicate, and how the conflicting claims of the beneficiaries and victims thereof were sought to be balanced.

The preamble indicates an intention to extend immediate relief to certain marginal farmers, rural artisans, rural labourers and "workers" as defined in the Act which had necessitated earlier the promulgation of the Maharashtra Debt Relief Ordinance, 1975, on 22nd August, 1975 and how thereafter it was found necessary to restrict the relief to the liabilities arising out of loans only when ordinance was replaced by the Act. Section 2 contains definitions, while section 3 gives retrospective effect to the Act as if it was in existence from the date of the Ordinance. The word "debt" is defined u/s 2 (e) to denote liability in cash or kind with or without interest, outstanding on the appointed day, i.e. 22-8-1975, whether secured or unsecured and due and payable, including the one under a decree, order of the Court or otherwise. The "debtor" is defined u/s 2 (f) to cover a marginal farmer, rural artisan, or rural labourer whose total income from all sources did not exceed two thousand and four hundred rupees during the year immediately before the 1st day of August, 1975. A worker whose total income from all sources did not exceed six thousand or four thousand and eight hundred rupees during the said period depending on his living in an urban or rural area is also included in the definition of ''debtor'' u/s 2 (o) of the Act, if his loan carries interest and if market value of his immovable property if any, does not exceed Rupees twenty thousand. Section 4 declares all debts of such debtor outstanding on the appointed day, i.e. 22 8-1975 as having been discharged and provides for the consequential benefits thereof to such debtors. Sections 5 to 13 under this Chapter III dealing with liquidation of debts, provide for the machinery for enforcement of the Act and certain incidental effects. Reference to remaining part of the Act is unnecessary as being irrelevant.

The main part of section 4 providing for the discharge of debts, after eliminating the unnecessary verbiage reads as follows:

"''(i) every debt of worker-----and every debt of any other debtor, outstanding OD the appointed day, including the amount of interest, if any, payable by a debtor shall be deemed to be wholly discharged".

Now, this discharge is to be effectively operative.

"''(ii) Notwithstanding anything contained in any other law for the time being in force or in any contract or other instrument having force by virtue of any such law:" but subject to

''"(2) save as otherwise expressly provided in this Act."

The words "outstanding", "payable" as also the word "due" in definition of the "debt" in section 2 (e) undoubtedly are of widest import as emphasised by Mridul J. but must get, necessarily, colour from the other parts of the section that follows and cannot escape the impact and the restrictions conveyed thereunder as every part of the section must be taken to be the competent of a well-knit scheme conceived to reflect the underlying legislative intent of relieving the indebtedness of certain kind of debtors. Nothing turns, to my mind, on the use of the word "payable" while declaring the discharge of the debts in opening part of section 4 and the use of the words "recovery" while preventing enforcement thereof by any legal process, as the same are dictated by the situations, the Legislature is called upon to meet. Dictionary meaning of the words by itself is never decisive without reference to their context and setting which ultimately determines their width or limitations. It is, therefore, necessary to closely examine r,he wording of clauses (a) to (d) first which indicate the consequences that are to "ensue" with effect from the appointed day on the "debts" being declared as "wholly discharged."

Now, the first such consequence under clause (a) of �he deemed discharge of the debts is the immunity, from its recovery from such debtor and, from enforceability by attachment or sale of his property or in any manner otherwise against him even if decree or order is passed for the same by any Court. Clause (b) then operates as an injunction against the civil Courts from entertaining any suit or proceeding against such debtors for the recovery of such debts, including interest thereon, if any. The proviso to clause (b) also still makes the position clearer indicating that in the event of debt being jointly due from a debtor and a worker covered by the Act along with any other not covered and protected thereunder, the statutory injunction conceived under this clause will not be operative against such unprotected debtor. The mandate in clauses (c) and (d) provide for abatement of pending suit and proceedings for enforcement of the debts so discharged, and release of the debtor from civil prison if he is so detained in execution of the decree against him for recovery of such debts.

These protective mandates and injunctions enumerated in clauses (a) to (d) clearly postulates that but for them debts referred to therein against such debtors were recoverable and processes of law were liable to be invoked for the lawful enforcement thereof. The emphasis on the words "such debts" and "such debtors" in every clause indicate a reference to the debts deemed to have been wholly discharged under the governing main clause (a) of section 4. In fact, clauses (a) to (d) contain only the "consequences" that are expressly intended to ''ensue'' on such discharge of the debts. In other words, debts intended to have been discharged under the scheme of section 4 and consequently under the Act are only such debts which were legally enforceable by recourse to coercive process of law and were not barred either by statute of limitation or otherwise. Time-barred debts or claims, even against the category of debtors and their creditors sought to be protected under this Chapter thus are outside the purview of section 4. In fact, no injunctions contemplated under clauses (a) to (d) were necessary for time-barred claims and debts, as no Court could ever have entertained them and no property of such debtors could have been proceeded against in whatsoever manner for enforcement thereof by any Court nor any debtor could have been put in prison or question of his release therefrom could have arisen. Not much can be made out of the supposed distinction between the implication of the words "payable" in the opening part of section 4 as against "recoverable" in the following clauses and it is not possible to hold that while main section 4 contemplates discharge of all the debts barred or not barred, as even time-barred debts continue to remain payable but injunctions were necessary to enforce against the debtor as debts within time could easily have been enforced through the Court. Any such inference is not warranted by the phraseology used in the main part of the section and the preceding sentences which go to enumerate the consequences on the discharge of such debts. Legislative intendment appears to be to cover only legally enforceable debts from the words used and the setting in which the words "outstanding", "payable" and "due" are used notwithstanding the width of their connotation, if considered in the abstract in isolation and divorced from the context. Conjuctive operation of the opening part of section 4 and the clauses thereafter leave little scope to assume that clauses (a) to (d) are merely added by way of abundant precaution in spite of the time-barred debts being covered by the main part of the section.

Clause (e) of section 4 then deals with the liability of the creditor to restore the property pledged or mortgaged by his debtor. Can this clause claim to have wider import so as to create such obligations on the creditor, even when not only his claim to recovery of debt or foreclosure but even the debtors, mortgagors or pledgees'' right to redeem or to recover possession is also time-barred and consequently their title in the property so pledged or mortgaged is extinguished by virtue of section 28 of the repealed and corresponding section 27 of the existing Limitation Act ? Mr. Kanade contends that clause (e), at any rate, possesses wider connotation and does contemplate such consequence. He relies on the distinction between the word "payable" in the opening part and ''recoverable'' in the clauses enumerating the consequences. He also relied on the non-obstant clause with which section 4 opens and on the doctrine of "once a mortgage always mortgage" which, according to him, is given effect to in this clause (e).

I have already indicated, how not much turns on the difference in the phraseology of ''payable'' and ''recoverable''. Clause (a) also contains one more consequence that is intended to ensue on the debt being wholly discharged in terms of the opening main clause of section 4 itself and forms as much integral part of the scheme as the earlier clauses (a> to (d) discussed earlier. Now, it should be difficult to find any good reason or basis to apply different standard or rule for interpretation of clause (e) and discover wider implication therein than what could be found in the earlier four clauses (a) to (d). If time-barred debts are found to be outside the purview of the main section and clauses (a) to (d) thereof, time-barred claims for restoration of the property also consequentially must be found to be outside the scheme of this section for the same reasons and on the same grounds.

Non-obstante clause is always pressed into service to ensure overriding effect of the declared mandate that follows the said clause, in the teeth of any contrary provisions of any enactment or other instruments specified therein. One has, however, to ensure that its scope is not unduly widened beyond what is strictly required to meet the given situation. In the context, this non-obstante clause seeks only to emphasise that debts specified therein would stand wholly discharged in disregard of any contrary provision in the laws or instruments specified. The non-obstante clause governs the discharge of the debts and it stops there with semi colon, and has no bearing on the consequences enumerated in clauses (a) to (d). It only makes ineffective the obligation to pay principal loan or the interest thereon as also the period upto which mortgagee or pledgee could retain the possession of the properties and enjoy their benefits contractually. It cannot claim to have the effect of modifying any provision of Limitation Act or extend the period of limitation for redemption or restoration of the properties in favour of the debtor nor can it have the effect of reviving the title of debtors in the property that was already extinguished before the appointed day.

The doctrine of "once a mortgage always a mortgage" is now modified by the Law of Limitation which is otherwise known as statute of repose enacted to subserve public purpose in ensuring that titles to debts, claims and properties do not remain in suspense forever. This doctrine therefore cannot override statute of limitation. Secondly, restoration of property pledged or mortgaged after the expiry of period of 30 years or 60 years respectively, under Articles 145 and 143 of the repealed Act or some period prescribed for the same under the corresponding Articles of the existing Act involves the question of revival of the debtors title afresh, which stands extinguished under clear and positive legislative mandate of section 28 of the repealed Act and section 27 of the new Act of 1963. Mere direction to release or restore the property, even assuming that discharge covers time-barred claims also, without positive amendment or modification of corresponding above provisions of the Limitation Act cannot be effective to revive barred claims and dead titles. This is a matter when Legislature has to speak unequivocally with clarity and precision involving as it does the transfer of property to the one whose title therein had stood extinguished long before the appointed day. Such a Legislature intendment requires to be indicated with louder and clearer voice. One cannot trace even a whisper of it in section 4 or clause (e) thereof anywhere.

Reliance by Mr. Kanade on the judgment of the Supreme Court in Bombay Dyeing and Manufacturing Co. Ltd. Vs. The State of Bombay and Others, , is misconceived. It only makes section 28 of the Limitation Act inapplicable to money claims. Redemption or restoration of pledged or mortgaged property is not a money claim in that sense or in any sense whatsoever and does not cease to be claim for recovery of property with the sweep of section 28, even though mortgage debt is found to have been covered by the expression pecuniary liability under the D. P. (Debt Adjustment) Act of 1961 by the Supreme Court in Rajkumari Kaushalya Devi Vs. Bawa Pritma Singh and Another, . Mixing consideration arising under different contexts under different enactments may not be of any help whatsoever.

Mridul J. has quoted extensively from certain eminent authorities to indicate that, extinction of debtors'' title cannot have the necessary effect of the conferring or vesting thereof in the creditor, though a binding authority of a Division Bench judgment of this Court in Fakirappa Jotappa Malemani v. Ningappa Shidlingappa Matti 45 Bom. L R 491, does support Mr. Hombalkar''s contention that on such extinction of debtor''s titles the creditor gets at any rate title thereof by possession. Even such possessory title ripens into absolute title after adverse possession continues for more than twenty years. To my mind this aspect of the matter is not relevant to the point directly. There is unanimity at any rate as to the extinction of debtors title in the property on the expiry of the prescribed period of limitation for redemption or possession. It is difficult to hold that lost and extinguished title gets restored merely on the declaration of the discharge of the concerned debt without express legislative mandate to extend the period of limitation and enlivening the extinct titles. The integral connection between the debt and the property by which it is secured gets snapped under Articles 145 and 148 read with section 28 of the repealed Limitation Act, and the corresponding provisions of the new Act. Mere declaration of discharge of debt, even assuming without admitting that the time-barred debts also are covered by section (4) of the Act cannot have the effect of restoring snapped connection without clear provision to that effect.

I agree with Mridul J. that the provisions of the Act aimed at relieving the chronic indebtedness of the socially and economically backward sections of the society must receive liberal interpretation to ensure effective implementation of the legislative intendment. The Legislature is alone the best judge of the needs of the society, the prevalent evils and measures required to meet the situation. It is also true that in such situations, hardship is bound to be caused to the few who stand divested of their vested rights. Legislature has, however, to speak its mind more clearly, unequivocally and loudly, where the scheme involves unsettling of settled rights in disregard of the existing other equally effective and binding enactments, by amending or modifying such provisions hiving contrary effects leaving such matters to bare inferences will have the effect of substituting the voice of the Court in place of the voice of the Legislature which alone can do the needful in exercise of its plenary powers within the frame work of the Constitution. I am unable to trace any such intention to override these provisions of the Limitation Act even impliedly in the bare mandate or direction to restore and release the properties in which the debtors'' title is extinguished long back. In fact, if these be bare words are to be interpreted in disregard of the untouched provisions of the Limitation Act, startling unintended consequences may follow leaving it open to any distant heir of the deceased debtor to claim back the property pledged or mortgaged hundreds of years ago with additions and alterations and large scale investments, which may come to his lap almost as a wind fall having no nexus whatsoever with his present indebtedness and the debts incurred by the ancestors separated by many generations. This will cause pleasant shock to the beneficiary and rude one to the Legislature itself. It will not even be fair to attribute any such intents to the Legislature. Not that the Legislature cannot modify the provisions of the Limitation Act where situations so require to ameliorate the woes of the debtors steeped in poverty for generations. But the question is whether, has the Legislature consciously done it in the present enactment in utter disregard of the equities involved, in cases where on extinction of the debtors'' title the holders of the properties bona fide made large scale investments and also in disregard of how such unintended benefits has any nexus with the actual indebtedness of the debtors, the result invariably being not so much the relief from indebtedness as conferring the unmerited boon without any basis therefor whatsoever.

With respect, I am unable to share the view expressed by Mridui J. but find myself in agreement with Deshmukh J. My answer to the first question is in the negative and also in the negative to the second question, even under the assumption of the affirmative answer to the first question. The matter may now be placed before the Division Bench for disposal in accordance with Jaw.