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Rajasthan High Court, Full Bench
Wanchoo C.J., Dave & Modi, JJ.
Thakur Sheokaran Singh - Appellant
Versus
Daulatram - Respondents
S.B. Civil Regular First Appeal No. 82 of 1952
Decided On : August 22, 1955
The rule of damdupat as recognised by Hindu Law, in the absence of any statute, is no longer of binding force, and cannot be given effect to in this State. (Para 18)
The rule of damdupat was applied in what was the former State of Marwar in accordance with the principles of Hindu Law as between Hindus. But the question of interest is not governed by the principles of Hindu Law at present, and is a question purely of civil law. (Paras 12 and 8)
Interest being a question of civil law generally and not a question of personal law of any class of citizens in this country, the State cannot now enforce a rule which discriminates against certain classes of citizens i.e., Mohammedans and Christians, on the ground of their religion. The result of enforcing the law of damdupat now would be that if the parties are Hindus a certain benefit would be conferred on the debtor. But if the parties are not Hindus,but belong to some other religion, the benefit, if any, of the rule of damdupat would not be conferred on the debtor. The rule of damdupat,therefore,as known to Hindu Law, is now clearly hit by Art. 15(1) of the Constitution, and, as such, would be void under Art. 13(1). It follows,therefore,that the courts cannot now enforce the true of damdupat as recognised by Hindu Law in part of this State in the absence of any Statute. (Para 13)
There can, be no justification for the prevalence of this rule now in some areas only of the State on ground that this a customary personal law of the Hindus in that area. (Para 16)
The rule protected only those debtors who did not pay interest regularly and against whom a suit had to be brought for principal as well as interest. But if a debtor paid his interest regularly, he might pay any amount. Such a rule, though it might confer some benefit on the debtor could hardly be called such progressive legislation which should be saved in the interest of all classes of persons in that territory. (Para 17)
"Whether the rule of Damdupat as recognised by Hindu Law, in the absence of any statute, is of binding force and/or can be given effect to in this State?"
2. We may briefly refer to the circumstances in which this question has arisen. A suit was filed by Daulatram and others against Thakur Sheokaransingh for recovery of a sum of Rs. 18,500/-. In that connection, the question arose whether the plaintiffs were entitled to the amount that they claimed in the face of the principle of Damdupat which was aside to be in force in the former State of Marwar. The question came up before a Division Bench of this Court which has made this reference to a Full Bench, as the point is of considerable importance and is likely to arise in many cases, and it was thought desirable that the law should be laid down authoritatively.
3. The question, that has been put to us for answer, may be broken up into two parts. In the first place, we have to decide whether the principle of Damdubat was in force in the former State of Marwar. Then comes the next question whether, even if it be that the principle was in force, it can be given effect to now in the area with which was comprised in the former State of Marwar.
4. The principle lor rule of Damdupat is said to be a branch of Hindu Law of debts and, according to this rule, the amount of interest recoverable at any one time cannot exceed the principal. The rule, however, is not applicable anywhere in what was formerly British India except the following places:—
(i) The town of Calcutta,
(ii) The State of Bombay,
(iii) Berar,
(iv) Santhal Parganas.
It is also clear that the principle of Damdupat as a branch of Hindu Law of Debts was not applied as a principle of Hindu Law even where it is applicable in other parts of India. In the town of Calcutta it was applied because of a special provision in Statute 21, George III, c. 70, s. 13 which enjoyed upon the Supreme Court of Fort William to determine
"all matters of contract and dealing between party and party in the case of Gentus by the laws and usages of Gentur."
The Calcutta High Court therefore held that so far as the town of Calcutta was concerned, the rule of Damdupat applied as between Hindu in view of this provision of Statute 21. At the same time, it was made clear that the rule did not apply to the rest of Bengal outside the town of Calcutta (See Nobin Chunder Bannerjee vs. Romesh Chunder Ghose (1)).
5. In Bombay the rule was applied to the City of Bombay for the same reason as in Calcutta. As to the rest of the Bombay State the rule was originally applied by Bombay Regulation No. V of 1827, and though that Regulation seems to have been repealed, the rule is still in force (vide not (1) at page 16 of Maynes Hindu Law 11th Edn.).
6. In Berar it appears that there has been a practice from time immemorial to apply the rule of Damdupat to all debt cases (See Jairam vs. Debidayal Surajprasad (1)).
7. In Santhal Parganas its application is by Statute Law.
8. Though therefore Damdupat in text books of Hindu Law is a rule of Hindu Law of Debts, it is not in force in any part of India now as a principle of Hindu Law. The reason is that Hindu Law, as no enforced by courts of Law. is confined only to matters of personal law, while the question of interest is not a matter of personal law, but of civil law generally. Wherever therefor the rule of Damdupat is applicable, it is applied by virtue of a statue or custom, and not as a branch of Hindu Law. As stated by Mayne at page 16, Hindu Law is now applied only as a personal law, and the courts are required to apply it in cases where the parties are Hindus in deciding any question regarding succession, inheritance, marriage of caste or any religious usage or institution. Questions relating to adoption, minority and guardianship, family relations, wills, gifts and partitions are also governed by Hindu Law. So are liabilities for debts and ali
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