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Mt. Sahodra Vs. Ram Baboo and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Case NumberFirst Appeal No. 434 of 1943
Judge
Reported inAIR1950All10
ActsU.P. Encumbered Estates Act, 1934 - Sections 11, 11(2) and 30
AppellantMt. Sahodra
RespondentRam Baboo and ors.
Appellant AdvocateS.B.L. Gour and ;P.L. Banerji, Advs.
Respondent AdvocateG.S. Pathak, ;K.N. Agarwala, ;T.B. Sapru, ;Misrilal Chaturvedi and ;V.D. Bhargava, Advs.
DispositionAppeal allowed
Excerpt:
.....dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - ' the mere passing of the final liquidation award by the collector clearly would not amount to giving to each creditor bond or bonds for the amount due to him......1943, the date on which the application under section 11 was filed?'2. the finding of the learned special judge is that the property in dispute had not been transferred to any person under the provisions of the sections mentioned in the issue. the learned special judge also found that bonds had not been issued by the collector to the creditors under sections 80 or 31, encumbered estates act, before 24th february 1943, the date on which the objector filed his objection under section 11.3. the landlord, applicant has filed certain objections to these findings, mr. gopal swarup pathak on behalf of the landlord-applicant, ram babu, admitted that the property in dispute had not been transferred to any person under the provisions of sections 24, 25, 28 or 31 and a similar admission was made.....
Judgment:

Malik, C.J.

1. The facts are set out in our Judgment, dated 5th May 1948, (A. I. R. (36) 1949 ALL. 49). We had remitted an issue to the lower Court for a finding. The issue was as follows:

'Whether the property in dispute had been transferred to any person under the provisions of Sections 24, 25, 28 or 31 or bonds had been issued by the Collector to the creditors Under Sections 30 or 31, Encumbered Estates Act, before 24th February 1943, the date on which the application Under Section 11 was filed?'

2. The finding of the learned Special Judge is that the property in dispute had not been transferred to any person under the provisions of the sections mentioned in the issue. The learned Special Judge also found that bonds had not been issued by the Collector to the creditors Under Sections 80 or 31, Encumbered Estates Act, before 24th February 1943, the date on which the objector filed his objection Under Section 11.

3. The landlord, applicant has filed certain objections to these findings, Mr. Gopal Swarup Pathak on behalf of the landlord-applicant, Ram Babu, admitted that the property in dispute had not been transferred to any person under the provisions of Sections 24, 25, 28 or 31 and a similar admission was made in the lower Court. As regards bonds, the facts are admitted that on 11th February 1943, the final liquidation award was passed by the Collector who held that creditors Sri Niwas and Jugal Kishore and Bhawani Prasad would get bonds for the amounts mentioned by the Collector in the award. It is admitted that these bonds were given to one of the creditors on 6th May 1944, and to the other creditor on 22nd May 1944. Mr. Pathak has, however, urged that it was not necessary that the bonds should have actually been handed over to the creditors and the date of the final award should be taken to be the date on which the bonds were issued.

4. The proviso to Sub-section (2) of Section 11 is to the effect that the Special Judge may receive an 'application, if presented, at any time before ..... a bond is issued by the Collector to a creditor Under Sections 30 6r 31'. Section 30 reads as follows :

'If the Collector has proceeded Under Section 27 he shall in accordance with rules framed by the Provincial Government give to each creditor a bond or bonds for the amount due to him.'

The mere passing of the final liquidation award by the Collector clearly would not amount to giving to each creditor bond or bonds for the amount due to him. In some of the other sections where the Legislature thought that it is the date of passing of the order which should govern the rights of the parties it has said so. For example, in Section 7 it is provided that when the Collector has passed an order Under Section 6 certain consequences shall ensue. Learned counsel has urged that the giving of the bond is a ministerial act. Even if the bonds are actually handed over to the creditor by an officer subordinate to the Collector, the officer must be deemed to act for the Collector and we do not see how that can make any difference. The language of Section 30 appears to us to be clear that the date on which a bond is given to a creditor is the material date after which no objection Under Section 11 can be entertained by the Special Judge. We have already set out the facts in our previous judgment. There can be no doubt that the appellant could not have filed her claim within three months of the date of the issuing of the notice. She had filed a suit for recovery of the property now in dispute on the ground that she was the step-sister of the deceased owner of the property. This suit was dismissed on 18th September 1933, on the ground that the Hindu Law Amendment Act of 1929 did not give any rights to step-sisters. This decree was affirmed by this Court on 13th April 1937, and notices in the official Gazette were issued after this Court had affirmed the decree passed by the trial Court. It was not till 13th October 1942, that the Privy Council allowed the appeal and it was then that Mt. Sahodra could claim to be the owner of the property Under Section 11. The lower Court was of the opinion that though she had lost from the trial Court and from the High Court, she should have put forward her claim before the Special Judge. The Special Judge could not, however, have given her any relief so long as the judgments stood and were not set aside by a competent Court and the judgments had been passed before the notices under the Encumbered Estates Act, had been issued.

5. We are of opinion that this appeal should be allowed, the order of the lower Court set aside and the objections, dated 24th February 1943 and 27th February 1943, admitted. The learned Special Judge would now decide all the claims Under Sections 9 and 11 in accordance with the law. In view of the special facts of this case, we do not consider that we should pass any orders as to costs.


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