Wanchoo, C.J.

1. The following question has been referred to this Full Bench for reply:

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 said to be in force in the former state of Marwar. The question came up be ore 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 Damdupat 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 even in the area which was comprised in the former State of Marwar.

4. The principle or 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. This use, 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.

5. 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. 17 which enjoined upon the Supreme Court or 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 Gentus".

The Calcutta High Court therefore held that so far as the Town of Calcutta was concerned, the rule of Damdupat applied as between Hindus in view of this provision o. 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 v. Romesh Chander Ghose, 14 Cal. 781 at page 788 (A).

6. 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 Note (1) at page lb of Maynes Hindu Law, 11th Edn.).

7. 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 v. Debidayal Surajprasad, AIR 1917 Nag. 116 (B).

8. In Santhal Pargauas its application is by Statute law.

9. 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 now 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 therefore the rule of Damdupat is applicable it is applied by virtue of a statute 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 or 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 liability for debts and alienations other than gifts and bequests. But the question of interest is not governed by the principles of Hindu Law at present, and is a question purely of civil law. This aspect is of importance, and will have to be borne in mind when we consider whether the rule of Damdupat, as known to Hindu Law, can now be applied in this State.

10. We now turn to the question whether this rule was in force in the former State of Marwar.

11. In Poona v. Moola, 1938 Marwar LR Civil 22 (C) it was held that according to the principle of Damdupat the plaintiff could not claim a larger sum on account of interest than the principal.

12. In Mangilal v. Bansidhar, 1939 Marwar LR Civil 51 (D) it was held that the rule of Damdupat applied to mortgage debts. This case also shows that in Marwar this rule was being applied as far back as 1925. It was again applied in 1927, and then in 1932. The same view was taken in Mst. Siraykanwar v. Molabux, 1941 Marwar LR Civil 194 (E).

13. There is not a single case on the other side. It is true that there is no rule or law made by the Ruler of the former State of Marwar applying this principle. But the Courts in Marwar were apparently always applying this principle wherever it could be properly applied.

Further, it is clear from the observations in 1941 Marwar LR (Civil) 194 (E) that the rule of Damdupat applied only when the original debtor was a Hindu, but not otherwise. In view, there ore, of these uninterrupted judicial precedents, it must be held that 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.

14. This brings us to the question whether the rule can now be applied in this State in the absence of any Statute. The contention on behalf of the plaintiff respondent is that the rule cannot now be applied in view of Arts, 14 and 15 of the Constitution. We shall first deal with the effect of Art. 15 (1) which is as follows:

The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

The argument is that the law of Damdupat as prevalent in the former State of Marwar was applicable only where parties were Hindus, or, at any rate, the original debtor was a Hindu. It was not applicable where the parties were say Mohammedans or Christians, or, at any rate, the original debtor was a Mohammedan or Christian. The result was that where the debtor was a Hindu, he was entitled to whatever benefit the rule of Damdupat might confer, but if he was a Christian or a Mohammedan, he was not so entitled.

If the same principle is to be applied now, the result would be that a clear discrimination on the ground of religion would arise between citizen and citizen in this part of India, and this is specifically forbidden by Art. 15(1) which lays down that State shall not discriminate against any Citizen on the ground of religion only.

We are of opinion that there is force in this argument. 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 citizen 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.

In enforcing the rule of Damdupat, therefore, as between Hindus, or, at any rate, in cases where the debtor is a Hindu, the State will clearly be discriminating against non-Hindus on the ground of their religion. 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 rule of Damdupat as recognised by Hindu Law in any part of this State in the absence of any Statute. The question whether even a statute could be enforced which made such a discriminating provision is another matter which need not be considered at present. But the rule of Damdupat, as it was in force in the former State of Marwar, cannot now have any binding force, and cannot be applied by Courts in view of the provisions of Art. 15(1).

15. Then we come to Art. 14. That Article lays down that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The argument on behalf of the plaintiff respondent in this connection is that the rule of Damdupat is not in force over the entire state of Rajasthan, and therefore, if the rule is in force only in the area covered by the former state of Marwar, the State would be denying equality before law to the residents in this area, while the residents of other areas of the State would not be hit by the rule of Damdupat.

16. The first question therefore that arises in this connection is whether the rule is in force over the entire State of Rajasthan, or only in some parts of it. So far as we have been able to find out, the rule seems to have been in force only in the former States of Marwar, Kotah and Bundi. Learned counsel for the defendant appellant has been unable to show us any case of any other area in this State where this rule was in force.

It will, therefore, have to be accepted that the rule is in force only in certain areas of this State, and not over the entire State. Is there then any justification for enforcing this rule over only part of this State We feel that there is none.

17. It was urged on behalf of the defendant appellant that this being a customary rule in force in certain parts of Rajasthan, there was bound to be difference between customs prevalent in different parts of Rajasthan. But even a custom having the force of law would be hit by Art. 14 unless there was clear justification for its application in a part of the State only. The justification in this case is sought in this way.

It is urged that this rule of Damdupat should be treated as a personal law of the Hindus, and as such it should be enforced wherever it was in force formerly. It is enough to say that this argument fails for two reasons.

In the first place the rule of Damdupat deals with the matter of interest. This, as we have shown, is a question of general civil law, and there is nothing in it which is in the nature of personal law of the Hindus. It cannot, therefore, be enforced as a custom relating to personal law of the Hindus in this area.

In the second place, there are Hindus in other areas of Rajasthan also, and there is no reason why there should be discrimination even between Hindus and Hindus in different areas of the same State. We have been shown no reason why the Hindus in the areas where the rule prevails should be treated differently from the Hindus in the area where the rule does not prevail. There can, therefore, be no justification for the prevalence of this rule now in some areas only of the State on the ground that this is a customary personal law of the Hindus in that area.

18. A second line of justification submitted before us is that this is a progressive law, and we should not strike it down simply because it does not prevail in other parts of Rajasthan (See Raja Hari Singh v. State of Rajasthan, : AIR 1954 Raj 117 (F)). We must say, however, that it seems to us very doubtful if this rule can be said to be a progressive law which should be saved. What after all is the rule of Damdupat. The rule is that the amount of interest recoverable at any one time cannot exceed the principal (Vide para. 596 Principles of Hindu Law by D.F. Mulla, 11th Edn. 675).

The rule of Damdupat does not say that the creditor shall not, in any case, be entitled to interest exceeding the principal. If the rule had been that, there might have been something to say for it as a piece of legislation with regard to the welfare of all classes within a particular territory. But under the rule of Damdupat as it was in force, the creditor could get much more than the principal and interest provided the debtor went on paying regularly.

The rule thus 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.

Further the rule as in force in the former State of Marwar was not for the benefit of all classes. It was only for the benefit of a particular class. We are, therefore, of opinion that the rule is also hit in the circumstances by Art. 14 of the Constitution, as by enforcing it the State would be denying equality before law to the citizens of this area.

19. Our answer, therefore, to the question put to us is that 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.