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Savithri Amma Seethamma Vs. Velayudhan Bhargavan and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKerala High Court
Decided On
Case NumberO.P. No. 4071 of 1980-P
Judge
Reported inAIR1982Ker220
ActsKerala Debt Relief Act, 1977 - Sections 2(4)
AppellantSavithri Amma Seethamma
RespondentVelayudhan Bhargavan and ors.
Appellant Advocate V. Vyasan Poti and; N. Sugathan, Advs.
Respondent Advocate B. Reghunathan,; Babu Mathew and; P. Joseph, Advs.
DispositionPetition allowed
Cases ReferredVasistha Vadhyar v. Mohini Bai
Excerpt:
- - the legislature obviously did not intend to exclude a family who is forced to borrow in strained circumstances, from the purview of the beneficial provisions of the act, if the debtor-family satisfied other requirements for claiming the benefits of the act. 9. in the light of the above discussion the orders of respondents 2 and 3 are clearly vitiated by errors of law apparent on the face of the record......an ag-gregation of the income of all the family members the appellate authority concluded that the family income 'cannot be anything less than rs. 8,000 per annum'. in that view of the matter the rejection of the application by the tribunal was affirmed by the appellate authority.4. counsel for the petitioner contended that the civil court having adjudicated the question and found that the petitioner was entitled to the benefits of act 17 of 1977, the functionary under the act could not go behind it. alternatively it was contended that even on the finding of the appellate authority, that the petitioner's income was only rs. 240, the action of the appellate authority in clubbing along with it the income from other members of the petitioner's family was totally unjustified on a proper.....
Judgment:
ORDER

K. Sukumaran, J.

1. The petitioner challenges the order Ext. p. 4 dated 9-10-1979 pass-ed by the Tribunal, the Tahsildar, constituted under the Kerala Debt Relief Act, 1977 (Act 17 of 1977), hereinafter referred to as 'the Act', and the appellate order therefrom, Ext. P. 5 dated14-7-1980, whereunder the application filed claiming benefits of Section 4 of the Act stood dismissed.

2. The facts are short and are as follows:-- The petitioner executed a mortgage for a sum of Rs. 300/- on 16-1-1959 in favour of the 1st respondent. A further loan was raised on the above security for Rs. 300 on 24-5-1965. The redemption of mortgage was sought by filing a suit O. S. No. 360 of 1976 on 20-3-76. The suit was decreed on 26-9-1977, Ext. P. 1 being the judgment and Ext. P. 2 the decree. Under Ext. P. 1 it was found by the civil court that the petitioner was a debtor under the Act on a consideration of issue No. 4, which related to the question whether the plaintiff was entilled to the benefits of Ordinance 1 of 1977, which was replaced by Act 17 of 1977. The civil court entered a definite and positive finding that the petitioner was a debtor and was entitled to avail of the benefits of the Act- However, the civil court fell that having regard to the provisions of Section 4 of the Act, the party has to move the Tribunal constituted under the Act for having a reconveyance of the property. This the petitioner attempted by filing an application before the 2nd respondent. This application was disposed of by a cryptic order Ext. P. 4 under which the petition was rejected by the Tahsildar-Tribunal by referring to the enquiries made to the Village Officer and the deposition of the counter-petitioner, which according to the Tribunal showed that the annual income of the debtor is more than Rs. 3,000. The basis of the report of the Village Officer or the particulars of the deposition of the counter-petitioner are, not even shadowed in Ext. P. 4. This unsatisfactory feature of the disposal of the application under the Act is perhaps understandable in the background of the lack of experience of the Tahsidar entrusted with the adjudication of claims which involve interpretation of the legal provisions and judicial approach to the questions.

3. The petitioner carried the matter in appeal before the appellate authority, the 3rd respondent. The order gives particulars of the reasoning of the appellate authority in support of its conclusion. It is evident that while considering the question whether the petitioner was a debtor under the Act, the appellate authority attempted an aggregation ofthe income of all the members of the petitioner's family. He noted that the petitioner has only an income of Rs. 240. The fact that the petitioner's husband, a pensioner, was in receipt of pension of Rs. 1,032 per annum was also noted by the appellate authority. He further entered on the speculation that the two unmarried employed sons of the appellant 'should be earning an annual income of at least Rs. 7,200'. On making an ag-gregation of the income of all the family members the appellate authority concluded that the family income 'cannot be anything less than Rs. 8,000 per annum'. In that view of the matter the rejection of the application by the Tribunal was affirmed by the appellate authority.

4. Counsel for the petitioner contended that the civil court having adjudicated the question and found that the petitioner was entitled to the benefits of Act 17 of 1977, the functionary under the Act could not go behind it. Alternatively it was contended that even on the finding of the appellate authority, that the petitioner's income was only Rs. 240, the action of the appellate authority in clubbing along with it the income from other members of the petitioner's family was totally unjustified on a proper interpretation of Section 2 (3) and (4) of the Act which detls with and defines respectively, the terms of the 'debt' and 'debtor'.

5. In view of my conclusion On the second question, it is not necessary for me to consider or pronounce upon the first one.

6. Section 2 (4) of the Act defines the term 'debtor' in the following terms :--

' 'debtor' means any person whose annual income does not exceed three thousand rupees, from whom any debt is due, but does not include --

(i) any person from whom debt or debts exceeding three thousand rupees (excluding interest) is or are due;

(ii) .....

Explanation: For the purposes of this clause the term 'person' shall include a family;'

The term 'family' referred to in the Explanation is defined in Section 2 (5):--

' 'family' means a Hindu undivided family or a Marumakkathayam tarwad or tavazhi or an Aliyasanthana kutumbe or kavaru or a Nambudiri illom.'

The definition of the term 'debt' occurred in Section 2 (3) and the main limb of it reads as follows:--

' 'debt' means any liability in cash or kind, whether secured or unsecured, due from or incurred by a debtor on or before the date of commencement of this Act, whether payable under a contract, or under a decree or order of any court, or otherwise, and subsisting on that date, but does not include--'

It is not necessary to refer to the inclusive portion of the definition for the purpose of this case.

7. It is clear from the reference to the sections that in determining as to who the 'debtor' is, the relevant criterion is fo find out as to who is owing the debt, Or from whom debt is due. Individuals may incur a debt. It is quite possible that in certain situations, a family too, qua family, incur such a liability. The legislature obviously did not intend to exclude a family who is forced to borrow in strained circumstances, from the purview of the beneficial provisions of the Act, if the debtor-family satisfied other requirements for claiming the benefits of the Act. That accounts for the Explanation to Section 2 (4). This does not, however, mean that an individual, who happens to be a member of the family, ceases to be a 'person' from whom debt is due, for the only reason that he is a member of a family. It therefore follows that an individual from whom debt is due is also a debtor under the Act. In finding out annual income of such a person it is not permissible to club the income of the other members of the family. This is not warranted at all by a proper interpretation of the section.

8. Counsel for the respondents submitted that having regard to the inclusive definition of the term 'person' in Section 2 (4), it was permissible for the authorities to reckon the income of all the members of the family. As stated earlier, this approach is incorrect, having regard to the statutory scheme and the background of the legislation. The legislature has always taken care to explicitly take into consideration of the existence of the other members of the family, when it has so intended to do. It may not be necessary to refer to the various statutory schemes to support this conclusion. It was urged by counsel for the petitioner that an analogous situation occurs in the Land Reforms Act, and it has received judicial interpretation in the decision reported in Vasistha Vadhyar v. Mohini Bai, 1975 Ker LT 365, and that while interpreting Section 2 (25) of the KeralaLand Reforms Act, this court made a similar approach. It is not necessary to pursue the above decision or other analogous statutory schemes, as the provisions of the Act appear to me to be clear even otherwise. It may be noted that if the limited and restricted interpretation as contended for by respondent No. 1 is given on Section 2 (4), it will virtually make it a dead letter, for in that event only a very limited number of families who have incurred debts as families, would be the beneficiaries of the enactment. I am clear in my mind that this is farthest from the intention of the legislature.

9. In the light Of the above discussion the orders of respondents 2 and 3 are clearly vitiated by errors of law apparent on the face of the record. I quash those orders.

10. I direct respondent No. 2 to expeditiously deal with the application for action under Section 4 treating the petitioner as entitled to the benefits of the Act. The matter has been pending for a long time; more than five years have elapsed after the petitioner initiated attempts at recovery of the property by instituting the suit in the year 1976. An inordinate delay will sap the vitality and efficacy of this socially benevolent statute. If the delay is unjustified, it will be oppressive to the debtor. I direct that the further action pursuant to the application made by the petitioner for reconveyance of the property should be completed by the 2nd respondent within a period of one month from the date of the receipt of the judgment.

11. In the result, the writ petition is allowed with costs.


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