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Mt. Hajira Begum Vs. Hamid HusaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Case NumberFirst Appeal No. 279 of 1948
Judge
Reported inAIR1950All45
ActsUttar Pradesh Encumbered Estates Act, 1934 - Sections 11(2); Debt Law
AppellantMt. Hajira Begum
RespondentHamid HusaIn and ors.
Appellant AdvocateWahid Ahmad Khan, Adv.
Respondent AdvocateBaleshwari Prasad, ;M.N. Raina, ;J.N. Takru, ;Jagdish Swarup and ;G. Kumar, Advs.
DispositionAppeal dismissed
Excerpt:
.....entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - failed to delay the proceedings further, had set. the obvious reason for this ultimate limit must be that if the collector had issued bonds and had transferred some property any claim to any item made-thereafter would upset the whole award and the collector would have to recalculate the amount available for each creditor from the reduced-amount of property available and as he could not recall the bonds or cancel sale deeds executed by him the creditors in whose favour sale deeds-or bonds had already been executed would be in a much better position..........4, u. p. encumbered estates act on 23rd july 1935. the papers were in due course sent to the special judge, first grade, pilibhit, and a notice setting out the list of properties was published in the provincial gazette on 7th november 1936. no objections under section 11, encumbered estates act were filed and on 12th august 1911, the special judge determined all the claims under section 14, encumbered estates act. the papers were in due course sent to the collector for liquidation of the debts and a liquidation award was drawn up on 24th august 1943, by an officer appointed for the purpose. hamid husain, however, filed an appeal against this award but the appeal was dismissed by the collector on 7th december 1945, and on 18th april 1946, the final award was passed. under this award.....
Judgment:

Malik, C.J.

1. One Hamid Husain filed an application under Section 4, U. P. Encumbered Estates Act on 23rd July 1935. The papers were in due course sent to the Special Judge, first grade, Pilibhit, and a notice setting out the list of properties was published in the Provincial Gazette on 7th November 1936. No objections under Section 11, Encumbered Estates Act were filed and on 12th August 1911, the Special Judge determined all the claims under Section 14, Encumbered Estates Act. The papers were in due course sent to the Collector for liquidation of the debts and a liquidation award was drawn up on 24th August 1943, by an officer appointed for the purpose. Hamid Husain, however, filed an appeal against this award but the appeal was dismissed by the Collector on 7th December 1945, and on 18th April 1946, the final award was passed. Under this award certain bonds were to be issued to the secured creditors and certain items of property were to be transferred to certain others. Hamid Husain even after the order of the Collector dated 7th December 1945, filed an application on 14th February 1946, challenging the ranking order passed by the learned Special Judge. This application was obviously frivolous and was dismissed on 1st February 1947. Thereafter the liquidation officer transferred several items of properties under sale deeds dated 19th March 1947 and 22nd March 1947. Bonds for Rs. 300, Rs. 1,000, RS. 1,800 and Rs. 1,600 were to be issued to creditors 1 to 4 and they were drawn up bat they were not handed over to the creditors when on 26th March 1947, the appellant, Mt. Hazra Begum, filed an objection under Section 11, Encumbered Estates Act on the ground that the properties mentioned in the notice under Section 9, had belonged to her father Ahmed Husain who had died in 1919 and she had under the Mohammadan law a one-third share in the said properties. The properties had all along remained entered in the name of Hamid Husain after his father's death and he had been dealing with the properties as his own. It is not, however, necessary to go into the merits of that application though the learned Special Judge was of the opinion that Hamid Husain, having; failed to delay the proceedings further, had set. up his sister to file the objection under Section 11, Encumbered Estates Act. The learned Special Judge dismissed the application on the ground that the application was barred by time.

2. Learned counsel for the appellant has urged that the entire property not having been transferred under Sections 24, 25, 28 and 30, Encumbered Estates Act and no bonds having been issued under Sections 30 or 31, Encumbered Estates Act to any creditor the learned Judge should have considered whether there was sufficient cause for not making the application earlier and should not have dismissed the application on the ground that it was barred by limitation. In the Encumbered Estates Act as originally passed the Special Judge had no discretion in the matter and the application had to be filed within three months from the date of the publication of the notice in the Gazette. It was further provided in Sub-section (3) of Section 11, Encumbered Estates Act that all claims under Section 11 had to be determined before the Special Judge proceeded to determine the amount due to any creditor under Section 14, Encumbered Estates Act. The reason why the provisions were so strict probably was that the Collector had to take into consideration all the decrees and the entire property available and had to prepare a scheme making an equitable distribution of the assets available to pay off the various creditors. Sub-section (2) of Section 11 was amended by Amending Act XI [11] of 1939 and it gave the Special Judge a discretion to extend the period of limitation for filing a claim to any item of property, on sufficient cause being shown, even-if the application was filed after three months of the publication of notice but before the Collector had issued bonds or transferred the properties in liquidation of the debts. The obvious reason for this ultimate limit must be that if the Collector had issued bonds and had transferred some property any claim to any item made-thereafter would upset the whole award and the collector would have to recalculate the amount available for each creditor from the reduced-amount of property available and as he could not recall the bonds or cancel sale deeds executed by him the creditors in whose favour sale deeds-or bonds had already been executed would be in a much better position than the others in whose favour sale deeds or bonds had yet to be executed. This intention appears to be obvious, otherwise there is no reason why the issue of even a a single bond by a collector under Section 30 or 31 should prevent the Special Judge from considering a claim under Section 11, Encumbered Estates Act. Learned counsel has admitted that the issue of a bond by the Collector under Section 30 or 31 would have debarred his client from making the application but be has urged that the words 'before such property is transferred to any person' mean that the entire property should have been transferred by the Collector under the provisions of Sections 24, 25, 28 and 30 or 31, Encumbered Estates Act. It is the case of the respondents that the words 'such property' mean any part of the property. Apart from the fact that accepting the interpretation put on these words by learned counsel for the appellant would result in creating complications and in doing injustice to certain creditors as against the others, we think that the language of the section is clear on the point. Sub-section (2) of Section 11, Encumbered Estates Act, provides that if any person has 'a claim to the property' mentioned in such notice--that would obviously mean the entire property or any part thereof--'the Special Judge shall determine whether the property specified in the claim, or any part thereof is available for the payment of the debts of the landlord applicant. The words 'the property' (sic) in the proviso to Sub-section (2) must, therefore, refer to the property specified in the claim or any part thereof. It is admitted that the appellant claimed a one third share in all the properties, and it is also admitted that several items of zamindari were transferred under sale deeds dated 19th March and 22nd March 1947, before the claim under Section 11, Encumbered Estates Act was filed. The learned Judge was, therefore, right in his view that the application was barred by limitation having been made after the Collector had transferred a part of the property. The appeal has no force and is dismissed with costs.

3. The appeal having been dismissed the application for injunction is dismissed with costs and the injunction order is discharged.


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