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Aziz Ahmad Khan and anr. Vs. Atthar HusaIn and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 4066 of 1963
Judge
Reported inAIR1971All469
ActsDebt Law; Uttar Pradesh Zamindars' Debt Reduction Act, 1953 - Sections 2
AppellantAziz Ahmad Khan and anr.
RespondentAtthar HusaIn and anr.
Appellant AdvocateSwami Dayal, Adv.
Respondent AdvocateSyed Sadiq Ali, Adv.
DispositionAppeal allowed
Excerpt:
property - meaning of 'debt; - section 2(f) of u.p. zamindari debt reduction act, 1953 tendering something returnable in same specie - not an exchange for money, is not debt. - - in a case of advance it must be within the contemplation of the parties that should the condition of advance fail the thing must be returned in the same form. in the event of failure of 'prompt dower' the wife can refuse company and so there will be no services rendered at all and no delivery of her person. 10. sri sadiq ali appearing for the respondents traced the history of dower debt and contended that beforethe advent of islam girls were sold like chattels in arabia but later in order to give dignity to womanhood the concept of dower debt was evolved......lie within a short compass. the appellants obtained a decree against the respondents in regard to dower debt that was due to their predecessor-in-interest against the respondents. the decree was passed for a total sum of rs. 1250/- with costs of the suit. this decree was put into execution and the zamindari bonds of the respondents were attached. they therefore filed an objection under section 47, civil p. c. for deduction of the amount under section 9 of the u. p. zamindars' debt reduction act, 1952, (u. p. act no. xv of 1953), according to the formula given in schedule ii of that act. this application was opposed by the decree-holders. the question, therefore, which arose for determination was whether the decretal amount in question was a 'dabt' within the meaning of section 2 (f) of.....
Judgment:

M.N. Shukla, J.

1. This is an execution second appeal arising out of an application made under Section 47 of the Code of Civil Procedure by the judgment debtors which was allowed by the lower appellate court and aggrieved by the same the decree-holders have preferred this appeal.

2. The facts giving rise to this second appeal lie within a short compass. The appellants obtained a decree against the respondents in regard to dower debt that was due to their predecessor-in-interest against the respondents. The decree was passed for a total sum of Rs. 1250/- with costs of the suit. This decree was put into execution and the Zamindari bonds of the respondents were attached. They therefore filed an objection under Section 47, Civil P. C. for deduction of the amount under Section 9 of the U. P. Zamindars' Debt Reduction Act, 1952, (U. P. Act No. XV of 1953), according to the formula given in Schedule II of that Act. This application was opposed by the decree-holders. The question, therefore, which arose for determination was whether the decretal amount in question was a 'dabt' within the meaning of Section 2 (f) of the Zamindars' Debt Reduction Act. The learned Munsif held that the dower debt was not covered by the definition whereas the appellate court came to a contrary conclusion. The same controversy has been canvassed before me.

3. 'Debt' has been defined in Section 2 (f) of the Zamindars' Debt Reduction Act as follows:

'Debt' means an advance in cash or in kind and includes any transaction which is in substance a debt but does not include an advance as aforesaid made on or after the first day of July, 1952, or a debt due to-

(i) the Central Government or Government of any State.

(ii) a local authority

(iii) a schedule bank

(iv) a co-operative Society.

(v) a waqf, trust or endowment for charitable or religious purpose only, and ... ... ... ... ...'

4. The limited question which falls for decision in this appeal is as to whether a dower debt amounts to a 'debt' within the meaning of the above definition. We are not concerned with the larger question as to whether it fulfils the general ingredients of debt as understood in popular parlance or even debt as defined in wider terms in other statute. There is no direct authority on the point in controversy and the matter has, therefore, to be decided on first principles and on an interpretation of the language of the Act. It is obvious that 'debt' is a term of art as used in the statute under consideration and its essential ingredient is 'advance'. It may either be technically an advance or an advance in substance but in any case the essence of the definition is that it must possess the element of 'advance'. Therefore, this is the key word in the definition which must govern the connotation of the term under the Act. The word loan has been defined in very much similar language in the U. P. Agriculturists' Relief Act which is as follows:--

'Loan means an advance in cash or kind made before the first day of June, 1940, ... ... ... ... ... and includes anytransaction which in substance amounts to such advance; but does not include an advance.'

Yet another definition of 'loan' is found in Section 2 (a) of the U. P. Encumbered Estates Act, 1934, according to which 'a 'debt' includes any pecuniary liability except a liability for unliquidated damages.' The legislature while enacting the Zamindars' Debt Reduction Act had adopted the definitions of 'loan' in the Agriculturists' Relief Act and Debt, Redemption Act as the definition of Debt and not the definition of debt contained in the Encumbered Estates Act. It follows that 'debt' under this Act is intended to apply only to a case technically or substantially of an advance and not to one of mere pecuniary liability. The intention of the legislature to restrict the Act to a pecuniary liability arising out of a loan as understood in the Agriculturists' Relief Actor the Debt Redemption Act cannot be mistaken.

The result is that every pecuniary liability cannot be equated with debt fox the purposes of the present Act. Here the essential condition of 'debt' is that there must be an advance. The word 'advance' conveys the idea of furnishing, tendering or offering something which may be returned in the same form. It is not synonymous with exchange for money. That is why recovery of price of goods sold had not been adjudged as a case of advance. In sale the property at once passes to the purchaser and what is recovered is merely its equivalent in money. In order to be an advance the tender must be of something 'which can be returned in the same specie'. Sale excludes such requirement. In paying the price the vendee does not return the very thing delivered by the vendor. Hence, debt may have a wide or a restricted meaning depending upon the terminology used by the legislature in a particular statute. In the Zamindars' Debt Reduction Act it has been assigned a limited meaning; it is not debt simpliciter.

5. The abovementioned features of 'advance' were elucidated in several decisions under other Debts Acts in which the term 'loan' was construed. In Nihal Singh v. Ganesh Dass Ram Gopal 0044/1936 the court rejected the dictionary or popular meaning of 'debt' and the two basic principles underlying the idea of 'loan' under the U. P. Agriculturists' Relief Act were enunciated as under :--

(i) that the property in the thing borrowed remains with the creditor and is not transferred to the debtor and

(ii) that the thing borrowed is intended to be returned in specie.'

The pecuniary liability in the case arose from purchase of goods on credit. Since the property in goods purchased was undoubtedly transferred from the seller to the buyer as soon as the sale took place, there was no idea of the goods purchased being ever returned and all that was intended was that the price of the goods was to be paid afterwards. In these circumstances it was held by the Division Bench that it was a case of sale for price, even though the payment for the price was deferred and that 'the transaction was in no sense a loan, nor can it be said that there was any advance in kind within the meaning of the definition quoted above.

6. In Khincha Mal Hari Kishan Dass v. Khub Ram Munna Lal : AIR1937All669 , Ganganath, J., held 'The price due for thearticles purchased by an agriculturist cannot be regarded as an 'advance' to him in kind' and consequently the suit for the recovery of the price was not one for recovery of 'loan' as defined in the U. P. Agriculturists' Relief Act.

The same decision was followed by a Division Bench of this Court in Sukhanand Mathura Prasad v. Ram Gopal Girja Shankar : AIR1939All336 wherein it was observed:

'In case of goods being sold we do not consider that this can be held to be an advance to the agriculturist. The goods themselves are not advanced as a loan. They are actually sold and it is intended that the title in the goods should pass permanently to the agriculturists at the time of sale.'

In Mohd. Shibli Khan v. Ish Dutt Dikshit : AIR1939All398 , Mulla, J. observed:

'I am unable to hold that the sale of a half share in a motor lorry can be said to be an advance either of money or kind as contemplated in this definition (of loan).'

In Chitar Singh v. Roshan Singh : AIR1943All301 which was a case under the Debt Redemption Act, Collister, J., ruled that 'the unpaid balance of sale consideration could not be regarded as a loan, whether technically or substantially.'

7. In Raj Kumar H. S. Singh v. Ranjeet Singh, 1960 All LJ 795 which was not a case of dower debt but of partnership accounts, V. D. Bhargava and R. A. Misra, JJ. examined the legal characteristics of 'advance' either in kind or in cash which would amount to debt within the meaning of the U. P. Zamindars' Debt Reduction Act. In that case both the decree-holders and the judgment-debtors were partners in the property, and certain amounts were paid to one of the co-sharers which were actually in excess of his share. It was held that the co-sharer would be liable to refund the excess amount paid but not as a debt or as an advance; it would be an amount due to accounting and therefore the U. P. Zamindars' Debt Reduction Act would not be applicable. Bhargava, J. remarked at page 797:

'We are of opinion that actually there was no advance given to the judgment-debtor, it was really a case of accounting. On the date when the compromise was entered into it was not known whether the judgment-debtor had taken more amount than his own share.'

8. In Raideo Dube v. B. N. Singh, 1963 All LJ 1053 which again was not a case of dower debt the principles regarding the meaning of debt under the Zamindars' Debt Reduction Act were considered. In that case a final decree was passed for the balance of the price for the sale of proprietary rights in certain villages but before the property could be sold the U. P. Zamindari Abolition and Land Reforms Act came into force. It was held that Section 4 of U. P. Act No. XV of 1953 could not apply to such a decree. Desai, C. J. emphasised in paragraph 3:--

'Nothing was advanced in cash or in kind by the opposite party to the applicant; the applicant's liability arose out of sale of the property by the opposite party to him ... ... ... ... ... Thetransaction resulted in a pecuniary liability but that is not enough to convert the liability into 'debt' as defined in the Act. The essence of advance is lacking in the case and I do not think it can be said that the transaction was in substance an advance. The opposite party gave him loan but it was by way of sale and it could not possibly be said to be an advance of its price in substance. Apart from the land nothing was delivered to the applicant by the opposite party.'

9. Applying the above principle to the case of dower I am of the opinion that the element of 'advance' is absent therein and it is for that reason not a 'debt' as defined in the U. P, Zamindars' Debt Reduction Act. In a case of advance it must be within the contemplation of the parties that should the condition of advance fail the thing must be returned in the same form. In other words, what is delivered must be capable of being returned 'in specie'. In case of unpaid price of the property the vendee can sue for the price but he is not entitled to get back the property 'as such.' The idea of advance in the sense in which it is used in the definition of 'debt' in the Act is foreign to marital obligations. In the event of failure of 'prompt dower' the wife can refuse company and so there will be no services rendered at all and no delivery of her person. In the case of 'deferred dower' the services would have already been rendered and there can be no return of the same. In other words, the person tendered (assuming that there is tender of advance) cannot be 'untendered', if I may use that expression. Hence, there can be no 'return in specie', which proves that there was no advance initially. A deferred dower is payable on dissolution of marriage by death or divorce. The wife cannot refuse company on its account. Thus, the element of advance or tender is not involved in dower debt.

10. Sri Sadiq Ali appearing for the respondents traced the history of dower debt and contended that beforethe advent of Islam girls were sold like chattels in Arabia but later in order to give dignity to womanhood the concept of dower debt was evolved. He contended that really speaking the dower was nothing but price paid for performance of marital obligation and so it was a purely pecuniary liability. This concept, apart from presenting a mercenary and unedifying picture of marriage which offends modern judicial conscience, does not fulfil the ingredient of 'advance' which is the sine qua non of 'debt'. Sri Sadiq Ali contended that dower was fixed in terms of money; it was inheritable and transferable and was founded on contract. But in my opinion every contractual liability does not result in 'debt'. The husband may be under a pecuniary liability to pay it and the wife may refuse company to the husband unless the prompt dower is paid. Nevertheless, in my opinion, dower is not the equivalent of such company. There can be no withdrawal of past services already rendered.

11. The nature of the right in dower was analysed by the Privy Council in Mt. Maina v. Ch. Vakil Ahmad and was contrasted with the right of a mortgagee to possession. It was observed:

'Where a Mahomedan widow obtains possession of her husband's estate peaceably and without force or fraud, she is entitled to retain possession till her dower debt is paid. This right is not however founded upon any hypothecation by the husband; on the contrary there is a clear distinction between her right to retain possession, which is created by Mahomedan law and the right of mortgage to possession which is founded on contract. In the case of a mortgage the mortgagee takes and retains possession, under an agreement or an arrangement made between him and the mortgagor. Any rights the mortgagee may get are conferred upon him by the mortgagor. In the case of a Mahomedan widow neither the possession of the property nor the right to retain that possession when acquired is conferred by the agreement or the bounty of her deceased husband ... ...... ... ... There is no analogy betweenthe two rights.'

12. Sri Sadiq Ali also relied on Kaneez Fatima Begum v. Ram Nanda, AIR 1923 All 331 which held that:

'A dower debt is not a secured debt nor a charge but a simple debt ranking equally with other debts due from the estate.'

But that case merely stated the general law and the Court was not called upon to interpret the term 'debt' as used in the special statutes such as the Debt Acts.

13. The learned counsel further placed reliance on Kapore Chand v. Kidar Nissa 0043/1950 : [1950]1SCR747 but there also the only question which arose for decision was as to whether a claim for unpaid dower constituted a 'debt' for the purposes of the Transfer of Property Act and whether it was entitled to priority as against other unsecured creditors. The point at issue in the appeal before me did not arise in this manner in that case.

14. On the other hand, Sri Swami Dayal appearing for the appellants referred to a Division Bench decision of this Court in Rehana Khatun v. Iqtidar Uddin Hasan : AIR1943All184 wherein it was held that a dower could not be called a 'loan' within the Agriculturists' Relief Act as there was no advance. It is true that the case arose under the U. P. Agriculturists' Relief Act, the definition of loan incorporated therein was interpreted and the reasoning was not elaborate. Nevertheless, with respect I am inclined to adopt the same principles for the interpretation of the term 'debt' occurring in the U. P. Zamindars' Debt Reduction Act, 1952.

15. I, would, therefore, hold that the decretal amount in question could not be treated as a 'debt' within the meaning of the provisions of U. P. Act No. XV of 1953 and the satisfaction of the decree could not be recorded in accordance with the formula given in Schedule II of the Act.

16. In the result this appeal is allowed with costs and the application of the judgment-debtors made under Section 47 of the Code of Civil Procedure is rejected.


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