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Md. Abdul Aziz Vs. Golla Bhumavva and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 7326 of 1979
Judge
Reported inAIR1982AP349
ActsAndhra Pradesh Agricultural Indebtedness (Relief) Act, 1977 - Sections 3, 4, 4(1), 6, 6(2) and 9(2); Bar Councils Act, 1926 - Sections 14(1); Constitution of India - Article 19; Wakf Act, 1954 - Sections 57(1)
AppellantMd. Abdul Aziz
RespondentGolla Bhumavva and ors.
Appellant AdvocateMd. Mukramuddin, Adv.
Respondent AdvocateB. Subhashan Reddy, Adv. and ;Govt. Pleader
Excerpt:
commercial - endowment - sections 3, 4, 4 (1), 6, 6 (2) and 9 (2) of andhra pradesh agricultural indebtedness (relief) act, 1977, bar councils act, 1926, article 19 of constitution of india and section 57 (1) of wakf act, 1954 - owner of land executed mortgage with possession in favour of a - a endowed land to wakf - respondents (heirs of mortgagor) filed petition for declaration that mortgage debt stood discharged under act of 1977 and for delivery of possession - court observed that respondents were debtors within meaning of act - petitioner was creditor as he was assignee of a (original creditor) - no evidence to show that mortgage was redeemed or lands were sold by mortgagor to mortgagee - land was still under mortgage when it was endowed as wakf - no valid wakf was created as person.....ramachandra rao, j.1. the facts giving rise to this writ petition are as follows. the dispute in this writ petition relates to ac. 7-29 guntas of land in chintalangaram village of banswads taluk, nizamabad district. one golla bhumavva, the grandmother (mother's mother) of respondents 1 and 2 executed a mortgage with possession in respect of the aforesaid land on 17th shaherevar 1353 fasli in favour of one abbas bee, wife of syed ibrahim for rs. 300/-. while so, syed ibrahim appears to have endowed the said land to the jama masjid at banswada on 21-9-1953. the said land was registered as a wakf on 26-6-1954.2. the 1st respondent filed a petition on 17-1-1977 under s. 4 read with s. 6 of the andhra pradesh agricultural indebtedness (relief) act, 1977 for a declaration that the mortgage debt.....
Judgment:

Ramachandra Rao, J.

1. The facts giving rise to this writ petition are as follows. The dispute in this writ petition relates to Ac. 7-29 guntas of land in Chintalangaram village of Banswads Taluk, Nizamabad district. One Golla Bhumavva, the grandmother (mother's mother) of respondents 1 and 2 executed a mortgage with possession in respect of the aforesaid land on 17th Shaherevar 1353 Fasli in favour of one Abbas Bee, wife of Syed Ibrahim for Rs. 300/-. While so, Syed Ibrahim appears to have endowed the said land to the Jama Masjid at Banswada on 21-9-1953. The said land was registered as a wakf on 26-6-1954.

2. The 1st respondent filed a petition on 17-1-1977 under S. 4 read with S. 6 of the Andhra Pradesh Agricultural Indebtedness (Relief) Act, 1977 for a declaration that the mortgage debt stood discharged, and for delivery of the said lands to the respondents 1 and 3. The petitioner filed a copy of the registered mortgage deed and also copies of the extracts of the pahanies for the years 1949-50 to 1953-54 and the pauthi book showing payment of land revenue from 1973 onwards. The said application was opposed by the petitioner stating that the said land was endowed by Syed Ibrahim after purchasing the same, and that the respondents did not object to the registration of the lands as wakf, and that the respondents were not entitled to recover possession of the same. It was also contended that the respondents were not the legal heirs of the mortgagor, Bhumavva and that they were not the owners of the land.

3. Before the Tribunal, Banswada, a pedigree of the family was filed by the respondents showing that the original mortgagor Bhumavva died leaving one daughter Lingavva, and that Lingavva also died leaving two daughters Bhumavva and Mallavva, the respondents 1 and 2 herein. The patta for the land was mutated in the name of Mallavva, the 2nd respondent. Both the respondents 1 and 2 appeared before the Tribunal and deposed that they were living jointly marrying one Laxmaiah, and that they were the legal heirs of Smt. Bhumavva, the mortgagor. They also examined two witnesses Nalla Poshaiah and Peeraiah to speak to their relationship to the original mortgagor. The entries in the khasra pahanies and the pahanies show that Mallavva was the legal heir of the deceased Bhumavva. No evidence was produced on behalf of the petitioner to rebut the evidence produced on behalf of respondents 1 and 2. On the aforesaid evidence, the Tribunal came to the conclusion that respondents 1 and 2 are the legal heirs of the original mortgagor Bhumavva, and that they were entitled to seek relief under the provisions of the Act.

4. On the merits, the Tribunal found that the disputed land was included in the Muntakhab as per the wakfnama executed by Syed Ibrahim on 21-9-1953. But, the title was not approved as Syed Ibrahim was not eligible to donate the land standing in the name of Mallavva as per revenue records. Moreover, the name of Syed Ibrahim was not mentioned in any of the pahanies. The Tribunal, therefore, held that Syed Ibrahim had no right to donate the land.

5. The Tribunal further found that the respondent is a small farmer depending on agriculture and is entitled to relief under S. 4 91) of the Act. It also disbelieved the case of the petitioner that the land was purchased by Syed Ibrahim. In that view, the Tribunal held that the land in question was mortgaged for Rs. 300/- by a small farmer, and that the respondents were entitled to relief. Accordingly, the Tribunal declared that the debt, if any, outstanding on the mortgage of the lands stood discharged, and that the respondents were entitled to recover possession of the lands from the petitioner.

6. The petitioner carried the matter in appeal to the Appellate Tribunal and Sub-Collector, Bodhan under S. 7 of the Act. Before the Appellate Tribunal, three contentions were raised, viz., that there was no evidence to prove the relationship of the debtor and creditor between the parties; and that the land was held by the A. P. Wakf board and, therefore, no relief of restoration could be granted to the respondents; and thirdly, the Wakf Board was in adverse possession of the lands and perfected title to the same. Another contention was also raised that earlier when proceedings were taken for registration of the properties as wakf, no objections were raised and the request of the 2nd respondent for eviction of the petitioner was also rejected and, therefore, the respondents were precluded from seeking recovery of possession of the lands under the Act.

7. The Appellate Tribunal, on a consideration of the material on record, found that the respondents 1 and 2 were the legal heirs of the original mortgagor Bhumavva, and that the respondents 1 and 2 debtors within the meaning of the Act, and that the petitioner was a 'creditor' within the meaning of the Act as he was an assignee of the original creditor, and that there was relationship of debtor and creditor between the parties. The Appellate Tribunal also found that there was no evidence on record to show that the mortgage was redeemed by repayment of the debt or that the lands were sold by the mortgagor to the mortgagee. On the other hand, the revenue records prior to the Khasra bear the name of Mallavva, the 2nd respondent and this is also borne out by the extract of the phaani for the year 1953. Accordingly, the Appellate Tribunal came to the conclusion that the land was still under mortgage when it was endowed as a Wakf.

8. On the question of limitation, the Appellate Tribunal found that the mortgage being for a period of 20 years commencing from 1943, the right to recover possession accrued in the year 1963, and that the period of limitation for recovery of possession was 30 years from 1963 and, therefore, the application filed by the respondents for recovery of possession was within time. The Appellate Tribunal also found that the entries in the khasra pahani would not bar the maintainability of the application for restoration of possession. A contention was raised that the Wakf Board was a necessary party, but that was rejected. On the aforesaid findings, the Appellate Tribunal came to the conclusion that the application for delivery of possession of the lands was maintainable and accordingly declared that the mortgage deed stood discharged, and that the respondents 1 and 2 were entitled to release of the mortgaged property and recovery of possession. It is this order of the Appellate Tribunal confirming the order of the Original Tribvunal, that is challenged in this writ petition.

9. Sri Mukarramuddin, the learned counsel for the petitioner firstly contended that S. 9 (2) of the Andhra Pradesh Agricultural Indebtedness (Relief) Act, 1977 (hereinafter called 'the Act') which precludes a legal practitioner from appearing for a party is violative of the provisions of S. 30(ii) of the Advocates Act, and in support of this contention here lies upon the ruling of a Full Bench of the Punjab and Haryana High Court in Jaswant Kaur v. State, . But, the provisions of S. 30 of the Advocates Act have not yet come into force. Therefore, the question of S. 9 (2) being repugnant to S. 30 of the Advocates Act does not arise.

10. The provisions of the Bar Councils Act continue to apply and a lawyer's right to practise is subject to the limitations contained in the Bar Councils Act. Section 14(1)(c) of the Bar Councils Act provides that an Advocate shall be entitled as of right to practise before any other authority or person before whom such Advocate is by or under the law for the time being in force entitled to practise. It was held in Rangaswami v. Industrial Tribunal, : (1953)IILLJ24Mad that Section 36(4) of the Industrial Disputes Act is a law limiting the lawyer's right to practise before a Tribunal as contemplated by Section 14(1) of the Bar Councils Act, and that his right to practise is circumscribed by the provisions of the said Act and it is not infringed by the provisions of Sec. 36 94) of the Industrial Disputes Act, and that there was noviolation of his fundamental right under Art. 19(1)(g) of the Constitution of India. Hence, the first contention raised with regard to the validity of S. 9 (2) of the Act is devoid of any force.

11. It is next contended that it is not established that respondents 1 and 2 are the legal heirs of the original mortgagor Bhumavva. But the finding of the tribunals below that they are the legal heirs of the original mortgagor Bhumavva is based on relevant evidence and is fully supported by the said evidence and no evidence contra was produced by the petitioner. Therefore, the said finding cannot be interfered with in a proceeding under Art. 226 of the Constitution.

12. Next it is contended that the Wakf board had acquired rights by adverse possession. But, the Tribunals found that the mortgage was subsisting as on the date of the Act, and that the same was not redeemed (sic) by the original mortgagee Abbas Bee or by her successors in interest. It was also found that the plea of purchase of the lands by Syed Ibrahim set up by the petitioner was also found to be not true. There is also no plea raised nor any material produced as to when adverse possession began. The plea of adverse possession is a mixed question of fact and law and unless proper foundation has been laid down in the pleading and evidence adduced in that behalf ,such a plea cannot be allowed to be raised. Even otherwise, the material on record does not substantiate the plea of adverse possession raised on behalf of the petitioner. Therefore, the Appellate Tribunal rightly negatived this plea.

13. Next it is contended that the petitioner or the Masjid in whose favour the endowment was made is not a creditor within the meaning of the Act. But we have already held that the person who made the endowment to the Masjid had no title to the lands, and that the plea of purchase of lands by him was not established by any material on record and the same was negatived by both the Tribunals below. If so, it follows that the mortgage by the original mortgagor Bhumavva was still subsisting on the date of commencement of the Act, and that the possession by the Masjid could only be subject to the mortgage.

14. Under S. 3 (h) of the Act, 'creditor' means a person from or in respect of whom the debtor has borrowed or incurred a debt and includes his heirs, legal representatives and assignees. In the instant case, the Masjid is no doubt not a heir or a legal representative or an assignee of the original creditor Abbas Bee. But, under S. 3 (v), 'transferee of the creditor' is defined as including any subsequent transferee or an assignee or any person in possession of the property pledged or mortgaged. Though the masjid is not a subsequent transferee and assignee of the original creditor, he will be a 'person in possession of the property mortgaged.'

15. Under S. 4 (1) of the Act, with effect on and from the commencement of the Act, every debt including interest, if any, owing to any creditor by a debtor as defined in the Act shall be deemed to be wholly discharged. Under S. 4 (3) (b), every mortgage executed by such debtor in favour of the creditor shall stand redeemed and the mortgaged property shall be released in favour of such debtor.

16. Under S. 6 (1) of the Act, the debtor referred to in clause (b) of sub-sec. (3) of S. 4 may make an application to the Tribunal constituted under the Act for an order releasing the mortgaged property and for the grant of a certificate of redemption. Under S. 6 (2) (a), the tribunal shall, on receipt of such application and after making an enquiry, pass an order releasing the mortgaged property and granting a certificate of redemption. Under S. 6 (2) (b), the Tribunal shall also direct the creditor or the transferee of the creditor to deliver possession of the mortgaged property to the debtor if the debtor is not already in possession of the mortgaged property and also make an endorsement of redemption on the mortgage deed or other document. Thus, a person inpossession of the mortgaged property falls within the definition of 'transferee of the creditor' under s. 3 (v) and is liable to deliver possession of the property to the debtors under S. 6 (2) (b) of the Act, subject, of course, to the applicant for relief under S. 4 (1) establishing that the debt was subsisting on the date of the commencement of the Act, and that he is a 'debtor' within the meaning of the Act on the date of commencement of the Act.

17. The next contention of Sri Mukarramuddin is that the definition of 'debtor'under S. 3 (j) of the Act does not take in legal heirs or legal representatives of the original debtor, and that respondents 1 and 2 as grand-daughters of the original debtor Bhumavva, are not entitled to claim relief under Section 4(1) of the Act. Under S. 4 91),with effect on and from the commencement of the Act, every debt including interest, if any, owing to any creditor by any agricultural labourer, a rural artisan or a small farmer shall be deemed to be wholly discharged. 'Creditor' is defined in Section 3 (h) as meaning a person from or in respect of whom the debtor has borrowed or incurred a debt and including his heirs, legal representatives and assignee. 'Debt' is defined in S. 3 (1) as including any liability owing to a creditor in cash or in kind, whether secured or unsecured payable under a decree or order of a Civil Court or otherwise and subsisting at the commencement of the Act, but does not include the debts mentioned in clauses (i) to (xii) of Section 3 (i). 'Debtor' is defined in Section 3 (i) as meaning an agricultural labourer, a rural artisan or a small farmer who has borrowed or incurred any debt before the commencement of the Act.

18. The contention of Sri Mukarramuddin is that while the Act defined 'creditor' as including the heirs, legal representatives and assigns of a person from whom or in respect of whom the debtor has borrowed or incurred a debt, the definition of 'debtor' does not include his heirs, legal representatives and assigns and, therefore, the legal heirs of a debtor who had borrowed the debt prior to the commencement of the Act would not be entitled to claim the benefit of the provisions of the Act. But, we are unable to agree with this submission. The following ingredients have to be established under S. 4 (1) for claiming relief under the Act:-

(i) that the debt including any liability owing to a creditor was subsisting at the commencement of the Act.

(ii) that the debtor must have either borrowed or incurred the debt before the commencement of the Act; and

(iii) that the said debtor must be an agricultural labourer, a rural artisan or a small farmer at the commencement of the Act.

19. It is only such debt owed or incurred by a debtor and subsisting at the commencement of the Act that would stand wholly discharged with effect on and from the commencement of the Act. The definitions of 'creditor' and 'debtor' in S. 3 (h) and (j) respectively make it clear that a debtor must have borrowed or incurred a debt before the commencement of the Act. Therefore, the expression 'debtor' not only takes in a person who has originally borrowed the debt but also a person who incurred the debt before the commencement of the Act. Further, the definition of 'debt' includes any liability owing to a creditor'. Therefore, reading the definitions of 'creditor', 'debt' and 'debtor' together, it is clear that not only a debtor who has originally borrowed the debt but also a person who incurred the liability or the debt, will be entitled to claim relief provided he falls within the definition of 'debtor' at the commencement of the Act. Therefore, in order to claim the benefit under S. 4 (1) of the Act, the applicant for relief must establish that he is an agricultural labourer or a rural artisan or a small farmer at the commencement of the Act, and that the debt was subsisting at the commencement of the Act.

20. In K. Koteswaramma v. A. Krishna Rao, (1978) 1 APLJ 282 it was held by Lakshmaiah, J., that even the legal representatives of the debtor would be entitled to the protection of the Andhra Pradesh Agricultural Indebtedness Relief Ordinance, 1976, which has been replaced by the A. P. Act 7 of 1977.

21. Our attention has been invited to two decisions of Muktadar. J. in K. V. S. Ramachandra Raju v. K. R. K. Raju, (1980) 1 APLJ 180 and C. R. K. Prasad v. S. R. V. Rajyalakshmamma, (1980) 1 APLJ 273 . In the first of the cases, during the pendency of a proceeding for execution of a money decree, one of the heirs of the original judgment-debtor raised a plea that he was a small farmer. The lower Court held that the heir was not a small farmer and rejected his claim for relief under the A. P. Act 7 of 1977. On revision to this Court, Muktadar, J. held that while the definition of 'creditor' under S. 3 (h) of the Act includes heirs, legal representatives and assigns, the definition of 'debtor' omitted those words, and that what the legislature intended was that the enquiry under the Act should be directed to find out as to whether the original debtor was a small farmer or not, and not as to whether the heir of the original debtor was a small farmer or not, and in that view, allowed the revision petition and remanded the case to the lower court to hold and enquiry and determine whether the original debtor was a small farmer or not. In the second of the cases, the same learned Judge reiterated the view taken by him in the first of the cases mentioned supra. But, with great respect in our opinion, the view taken by Muktadar, J. in the above two cases cannot be taken to have laid down the correct law. As already held by us, on a consideration of the definitions of 'creditor', 'debt' and 'debtor' and the provisions of S. 4 (1), in order to give relief under S. 4 (1), it has to be established, firstly, that the debt was borrowed or incurred prior to the commencement of the Act, and that the person who was claiming relief under S. 4 (1), whether he has originally borrowed the debt or whether he has incurred the liability for the debt, should establish that he was on the date of commencement of the Act an agricultural labourer or a rural artisan or a small farmer. The person claiming relief under S. 4 (1) need not necessarily be the original borrower, but he may incur the liability by operation of law or otherwise. In this context, it is useful to refer to some decisions cited by the learned government Pleader Sri n. Subba Reddy. In the Full Bench decision of Patna High Court in Balchand Mahto v. Munshi Lal, : AIR1955Pat494 the question, whether a transferee of the equity of redemption could, in a suit for redemption, claim relief under the Usurious Loans Act, was referred to the Full Bench. It was held by the learned Judges that in the absence of any definition of the expression 'debtor' in the Act, one has to refer to the dictionary meaning of that word, which is 'one who owes a debt', and that the purchaser of equity of redemption surely owes a debt to the mortgagee and is a debtor and that the expression 'debtor' includes also a transferee from debtor.

22. In Perianna Goundan v. Sellappa Goundan, (1938) 2 Mad LJ 1068: (AIR 1939 Mad 186), a case which arose under the Madras Agriculturists'

Relief Act IV of 1938, a suit was filed for recovery money due under a mortgage deed executed by the 1st defendant in favour of the plaintiff. In execution of a money decree obtained against the mortgagor, the 8th defendant purchased the equity of redemption in a portion of the hypothecate and sold the same to the 9th defendant. The plaintiff sought to bring to sale the properties purchased by 9th defendant as part of his mortgage security. The 9th defendant was an agriculturist within the meaning of Madras Act IV of 1938. A question arose whether the liability of the the defendant as a purchaser of the equity of redemption was a 'debt' within the meaning of S. 3 (3) should be understood as limited to cases where a person was personally liable. But the learned Judges repelling the said contention held that there were no words in the definition clause justifying any such restriction, and that the clause speaks of 'any liability' and the word 'due' did not necessarily imply that it must be recovered by imprisonment of the debtor, and that the Legislature could not have intended to limit relief under the Act to cases where a person was personally liable, and that its avowed purpose was to enable agriculturists to retain their property and prevent such property passing into the hands of the creditors or execution purchasers.

23. Another contention was raised before the learned Judges that only a person who actually contracted the debt would be entitled to claim relief under the Act and not his heir at law or legal representatives, as the latter would ordinarily be under no personal liability. It was also contended that while the definition of 'creditor' in that Act took care to include his heirs, legal representatives and assignees, there was no corresponding definition in the case of a 'debtor'. The learned Judges repelled that contention in the following words:

'This omission is obviously due to the fact that the reference to liability in clause (3) is wide enough to cover every person who is in any manner liable, either because he is personally liable or because he is liable on account of the possession of property. There was no necessity to refer to any heir, legal representative or assign except in cases in which such person was liable within the meaning of cl. (3).'

24. In Ramayya v. Subbaiah, AIR 1956 AP 177, the following question was referred to the Full Bench (at p. 179):-

'Can a purchaser of a mortgaged property claim to have the mortgage debt d down under the Madras Agriculturists' Relief Act on the basis that such debt is itself a renewal of an earlier debt secured or unsecured ?'

The Full Bench held that the definition of 'debt' in S. 3 (iii) took in simple debts as well as secured debts due from an agriculturist. The question referred to was answered as follows (at p. 182):-

'The liability of the purchaser of an equity of redemption is not a new liability but only one arising under a preexisting mortgage debt, though his liability is confined only to the properties in his possession. Where a person purchases an equity of redemption, the character of the debt does not undergo any metamorphosis in the process of transfer. The liability of the security continues to be the same, though a different person holds the property securing the debt. The right of a purchaser of an equity of redemption under the Act is co-extensive with that of a mortgagor. Where the purchaser is an agriculturist and the debtor was an agriculturist at the commencement of the Act, the debt payable at the commencement of the Act, is liable to be scaled down under the provisions of the Act, i.e., it can be traced back to the original debt whether secured or unsecured.'

25. The Full Bench decision was followed in an unreported decision of the same High Court in Dadi Appala Naidu v. Poosarla Sambamurthi (S. A. Nos. 368 and 456 of 1951, D/- 30-1-1956: 1956 Andh LT (NRC) 35). In that case, it was held by his Lordship Subbarao, C. J. That:

'There is no distinction in principle between the purchaser of the equity of redemption and a purchaser from the purchaser of an equity of redemption. In either case, the conditions to be fulfilled for the application of the Act arte: (i) that the person seeking relief under the Act should be an agriculturist and, (ii) the mortgage debt should have been payable by an agriculturist at the commencement of the Act.'

26. In the decision reported in Nageswaraswamy v. Viswasundra Rao, : [1953]4SCR894 , it was observed as follows (at p. 372):-

'It is not necessary that the applicant for relief himself should be liable for the debt on the date that the Act came into force. The right to claim relief as is well settled by decisions, vide Perianna v. Sellappa (AIR 1939 mad 186) (supra) of the Madras High court, is not confined to person who originally contracted the debt, but is available to his legal representatives and assigns as well; nor is it necessary that the applicant should be personally liable for the debt. The liability of a purchaser of the equity of redemption to pay the mortgagee debt undoubtedly arises on the date of his purchase, but the debt itself which has its origin in the mortgage bond did exist from before his purchase, and if it was payable by an agriculturist at the relevant date, the purchaser could certainly claim the privileges of the Act if he himself was an agriculturist at the date of his application.'

On the facts of that case, no doubt, it was held that the applicant failed to show that there was existence of debt payable by an agriculturist on 22nd March, 1938, the date of the coming into force of Madras Act was not confined to the person who originally contract the debt but was available to his legal representatives and assignees as well and that it was not necessary that the applicant should be personally liable for the debt.

27. Sri B. Subhashan Reddy invited our attention to a ruling of the Supreme Court in Kidar Nath v. Mangai Rao, : [1970]3SCR213 . In that case, the question which arose for consideration was, whether it was open to the legal representatives of a debtor to invoke the help of S. 30 of the Punjab Relief of Indebtedness Act in a suit for possession by redemption. Their Lordships of the Supreme Court held as follows :

'Section 7 of the Punjab Relief of Indebtedness Act, 1934, defined a 'debt' as inclusive of 'all liabilities of a debtor in cash or in kind, secured or unsecured, payable under a decree or order of a Civil Court or otherwise, whether mature or not, x x x x x '. The definition of the expression 'debt' therefore includes all liabilities of a debtor in cash or in kind, secured or unsecured. The liability of a mortgagor to pay the money due under the mortgage and to pay interest accruing due is clearly a debt, even if it be assumed that the mortgagee had no right to enforce the mortgage by sale of the property and had a right only to foreclose the mortgages. Under the terms of the mortgage deeds, if the mortgagor pays the amount due, the mortgagee is bound to release the mortgaged property. It cannot be said that under the three mortgages there was no debt due by the mortgagor. Nor do we agree with counsel for the mortgagee that the benefit of S. 30 of the Punjab Relief of Indebtedness Act is available only to the original mortgagor and not to his representatives. S. 30 of the Punjab Relief of Indebtedness Act by the first sub-section provides: 'In any suit brought after the commencement of this Act in respect of a debt as defined in S. 7, advanced before the commencement of this Act no court shall pass or execute a decreed or give effect to an a award in respect of such debt for a larger sum than twice the mount of the sum found by the Court to have been actually advanced, less any amount already received by a creditor in excess of the amount due to him under clause (e) of sub-sec. (2) of S. 3 of the Usurious Loans act, 1918.' A suit to redeem property on payment of the amount due on the mortgage is a suit in respect of a debt; and the court is, by s. 30 of the Act, debarred from passing a decree for a sum larger than twice the amount of the sum found by the Court to have been actually advanced. The section imposes a restriction, in certain conditions, upon the power of the Court. It is the nature of the suit which decides the Court's jurisdiction; the section makes no reference to the status of the party claiming relief except in so far as the definition of debt involves such reference. On the plain words of the section there is no warrant for the view that the jurisdiction of the Court is attracted only when the person who incurred the obligation to pay the debt personally is a party to the suit and not when his legal representative is a party. An obligation to pay a debt is not extinguished on the death of the debtor. The obligation is enforceable against the estate of the debtor in the hands of his legal representatives; and when it is no sought to been forced, in the absence of an express provision or clear intendment to the contrary, the representatives may set up the defence which the original debtor could if he has been sued have set up. The representatives of the mortgagor were therefore rightly held entitled to the benefit of S. 30 of the Punjab Relief of Indebtedness Act, 1934.'

28. Applying the principles laid down in the aforesaid rulings and on a consideration of the definitions of 'creditor', 'debt' and 'debtor' and the provisions of S. 4 (1) of the Act, we hold that the petitioners as legal representatives of their grandmother, the original debtor, would be entitled to claim relief under the provisions of S. 4 (1) of the Act subject to their establishing that the debt was subsisting on the date of the commencement of the Act and that they fall within the definition of 'debtor' at the commencement of the Act.

29. On the first question, we have already held that the mortgage was not redeemed by the date of the Act, and that the debt was subsisting at the commencement of the Act. The only question then for consideration is, whether the respondents 1 and 2 established that they were small farmers on the date of the commencement of the Act. Both the Tribunals found that the 1st respondent, the applicant, was a small farmer. This finding is sought to be challenged by Sri Mukarramuddin, the learned counsel for the petitioner. But, this finding is one of fact based on a consideration of the relevant evidence and the same cannot be interfered with in a proceeding under Art. 226 of the constitution unless it is established that the said finding is based on no evidence or is vitiated by any error of law. While Sri Mukarramuddin contended that it is not established that the principal means of livelihood of respondents 1 and 2 is income derived from agricultural lands or that they were holding and personally cultivating agricultural lands, it is contended by Sri B. Subhashan Reddy that the applicant has averred in the petition filed before the original Tribunal that she was cultivating land within the limits mentioned in s. 3 (b) of the Act and she also spoke to the same in her evidence, and the same has not been controverted or rebutted by any evidence on behalf of the petitioner. The question whether the applicant was a small farmer or not on the date of the commencement of the Act is a pure question of fact and as both the Tribunals came to the conclusion that respondent No. 1 was a small farmer within the meaning of the Act, we do not think we will be justified in interfering with the said finding of fact. We, therefore, hold that both the tribunals rightly held that the respondents 1 and 2 were small farmers entitled to relief under Ss. 4 (1) and 3 (b) read with S. 6 of the Act.

30. It is next contended by Sri Mukarramuddin that under S. 57(1) of the Wakfs Act, notice should have been given to the Wakf board. But, in the instant case, it is found that no valid wakf was created as the person who is alleged to have endowed the property to the masjid had no title to create a wakf. Even otherwise, the absence of notice would not invalidate the proceedings under S. 4 (1) of the Act. We have already held that the Masjid being in possession of the mortgaged property falls within the definition of 'transferee of the creditor' under S. 3 (v) of the Act and, therefore, the mortgage shall stand redeemed and the mortgaged lands shall have to be released in favour of the debtor, and under the provisions of Section 6 (2) (b), the transferee of the creditor is liable to deliver possession of the mortgaged property to the debtor. Both the Tribunals, therefore, rightly declared the mortgage debt to have been discharged and directed that the lands should be delivered possession to the respondents 1 and 2.

31. For all the foregoing reasons, the writ petition fails and is dismissed with costs. Advocate's fee Rs. 250.

32. Petition dismissed.


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