1950 (10) TMI 23

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....hat tender was made under Section 11 or Section 12 and refused ; (c) in the case of a sale, that the price stated in the notice was not fixed in good faith ; (d) in the case of a mortgage, that the amount claimed by the mortgagee was not really due on the footing of the mortgage and was not claimed in good faith, and that it exceeds the fair market-value of the property mortgaged, or the portion of the property mortgaged in respect of which he possesses the right of pre-emption, as the case may be. If, in the case of a sale, the Court finds that the price was not fixed in good faith, the Court shall fix such price as appears to it to be the fair market-value of the property sold, or the portion of the property sol....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ee was passed exceeds the fair market-value of the property mortgaged. 4. It was, however, contended that the word 'and' used in Clause (d) and in the last paragraph of Section 13 is not used in a conjunctive sense but is used in a disjunctive sense and that it should be read as "or". Thus, if any of the conditions above enumerated exists, the Court would be bound to pass a decree for pre-emption upon payment of an amount not exceeding the market value of the property, even though the amount actually due on the mortgage was greatly in excess of that amount and there was no mala fide in the claim. 5. The learned counsel for the appellant in support of his contention relied upon the decision of a Bench of the Court of the Judici....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....It must, however, be remembered, as Mr. (Late Sir Edward) Chamier himself points out in his judgment in Reoti Ram v. Lachhman Prasad, 10 O. C. 179 at p. 187: "that a strong case must be made out in order to justify a departure from the primary and literal meaning of the language employed." What has to be seen is whether such a strong case has been made out. 8. Before considering the decisions upon which the appellant relies, it is necessary to consider the enactment itself. Section 10 provides for cases of sale and foreclosure and requires a notice to be given specifying the price at which the vendor is willing to sell. Section 11 provides that, unless the sum specified in the notice is paid within three months, the right of ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....tions 10 and 12 read together indicate that, in the case of foreclosure, as in the case of sales, the amount on payment of which redemption is to be allowed should be not less than the real consideration for the transaction. If the word "and" in Clause (d) and the last para of Section 13 is construed in the conjunctive sense it would be consistent with the intention so expressed by the Legislature. If, on the other hand, it is construed in the disjunctive sense it would not be consistent with this intention. On that construction if any of the three factors enumerated in Clause (d) of Section 13 exists the Court must, under the last para of the section, allow redemption on payment of a sum not exceeding the market value only. Thus the mortga....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... conjunctive sense. 13. The reply to this is furnished by the same judgment at a later stage (vide p. 185 of the report). Mr. Chamier himself points out that "the last clause of Section 13 does not necessarily mean that in all the cases referred to in it the Court shall fix the fair market value but only that the amount to be paid shall not exceed the fair market value." 14. Thus this anomaly which might, according to Chamier J. C., have existed, is shown by his own judgment, as supported by the last para, of Section 13 not to exist. 15. In the whole of his lengthy judgment no other anomaly is pointed out which would result from giving the word "and" its natural meaning. The learned Judicial Commissioner was, however, greatly impre....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....placing the word "or" for the word "and" was not persisted in the Punjab and there is no reason to be influenced by the use of that particular word in the Punjab Laws Act. 17. With all respect to the eminent Judge who decided that case, I regret that it is not possible for me to accept the interpretation of Clause (d) and the last para of Section 13 given in the judgment in Reoti Ram v. Lachhman Prasad, 10 O. C. 179. 18. The two decisions of the Chief Court simply follow the earlier decision. In Qadir Husain v. Muhammad Fazal Haq, 8 O.W.N. 44: (A.I.R. (18) 1931 Oudh 137) the point involved was not the same and it did not follow the decision in Reoti Ram v. Lachhman Prasad, 10 O. C. 179 on this point but on another. No new grounds are ....