ATUL CHANDRA DAS (D) THROUGH LRS. versus RABINDRA NATH BHATTACHARYA (D) THR. LRS. & ORS. ETC.

Citation: [2019] 5 S.C.R. 1185 · Decided: 04-04-2019 · Supreme Court of India · Bench: ASHOK BHUSHAN · Disposal: Dismissed
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Judgment (excerpt)

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ATUL CHANDRA DAS (D) THROUGH LRS.
v.
RABINDRA NATH BHATTACHARYA (D) THR. LRS. & ORS.
ETC.
(Civil Appeal Nos. 8793-8794 of 2013)
APRIL 04, 2019
[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
Bengal Money Lenders Act, 1940:
s.37A – Suit by appellants for ejectment of respondents from
suit property – Stating that the respondents (original owners) had
sold the suit property to ‘B’ and thereafter ‘B’ sold the property to
predecessor-in-interest of the appellants – Respondents countered
the case of appellants and also filed title suit stating that the prop-
erty was mortgaged with conditional sale, by them in favour of ‘B’
against a loan and that even before expiry of redemption period,
‘B’ in collusion with the appellants entered into agreement to sell
the property to the appellants – Trial court dismissed the suit of
appellants and decreed the suit of respondents placing reliance on
s.37A of Bengal Money Lenders Act and holding that the sale by
respondents to ‘B’ was a mortgage with conditional sale – High
Court confirmed the order of trial court – On appeal inter alia
contended that s. 37A since is contained under State Act is
repugnant to central law i.e. s.58(c) of Transfer of Property Act –
Held: The respondents cannot be non-suited for inapplicability of
s. 37A as the respondents had sought reliefs relating to redemption
– Section 58(c) of Transfer of Property Act when read with s. 37A
of Money Lenders Act, it is clear that the legislature intended to
override the effect of proviso to s. 58(c) by enacting s. 37A – s. 37A
is traceable to the Entry ‘Transfer of Property’ in the Concurrent
List and not to ‘money lending’ in State List of VII Schedule – Even
if there is inconsistency between s.58(c) of Transfer of Property Act
and 37A of the State Act, in view of the assent given by the
President, the matter falls u/Art. 254(2) of the Constitution and
therefore, s. 37A of the State Act will prevail – Transfer of Property
Act, 1882 – s. 58(c) – Constitution of India – Art. 254(2), VII
Schedule.
[2019] 5 S.C.R. 1185
1185
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SUPREME COURT REPORTS
[2019]  5 S.C.R.
Dismissing  the appeals, the Court
HELD: 1.1 Under Section 58(c)of Transfer of Property Act,
1982, the proviso makes it indispensable to constitute a
transaction a mortgage that one of the conditions mentioned in
Section 58(c) be incorporated in the document by which the
conditional sale is effected. However, keeping Section 58(c) side
by side with Section 37A of the Bengal Money Lenders Act, 1940
(State Act) the conclusion is inevitable that the State legislature
has intended to override the effect of proviso to Section 58(c) of
the Transfer of Property Act by enacting Section 37A in the State
Act. Section 37A was incorporated by way of an amendment in
the State Act. Reading of Section 37A brings out the legislative
intent with unambiguous clarity and therefore the High Court
was right in relying upon Section 37A of the State Act to find that
though it was by agreement dated 07.12.1959 which is a separate
document that condition to make it a mortgage was incorporated
it would not make any difference. Despite the sale deed dated
27.11.1959, the respondents continued to be in possession of
the plaint scheduled property and it has been found that they
paid the taxes. It is further found that the market value of the
property would not have been less than Rs. 30 thousand as on
the 
date 
of 
the 
alleged 
sale 
namely 
27.11.1959.
[Paras 9 and 10][1193-C-D; F-H; 1194-A-B]
2. A Suit for redemption is mentioned as suit to which
Section 36 of the State Act applies. Section 38 undoubtedly
enables the borrowers to seek a direction for taking accounts.
The reliefs in the suit filed by the respondents include reliefs
relating to redemption in the form it is asked for. In fact, no issue
in this regard was taken before the Trial Court. There is no reason
to non-suit, the respondents on this ground. [Paras 15 and
16][1197-C-E]
3.1 It was pleaded that Money lending falls as entry (30) in
the State List of the Constitution. Transfer of Property other than
agricultural land falls in Entry 6 in the concurrent list. The State
legislature in enacting Section 37A of the State Act, a law relating
to money lending has made a law which is inconsistent and
therefore, repugnant to the law made by the Parliament in Section
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58(c) of the Transfer of Property Act. This contention is taken
for the first time in this Court. There is also no meri
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