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Lekshmikutty Amma Vs. Bathu Kudimi Mathu - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 118 of 1967
Judge
Reported inAIR1969Ker234
ActsDebt Laws; Kerala Agriculturists Debt Relief Act, 1958 - Sections 2 and 6; Cochin Transfer of Property Act - Sections 56(4); Code of Civil Procedure (CPC) , 1908
AppellantLekshmikutty Amma
RespondentBathu Kudimi Mathu
Appellant Advocate P. Sreedhara Menon, Adv.
Respondent Advocate C.K. Sivasankara Panicker,; D. Narayana Potti and; T.A.
DispositionPetition dismissed
Cases ReferredIn Sutters v. Brings
Excerpt:
.....- mortgage - sections 2 and 6 of kerala agriculturists debt relief act, 1958 and section 56 (4) of cochin transfer of property act - petitioner decree-holder - petitioner obtained decree for sale of suit property in execution of mortgage - petitioner took steps to execute decree - judgment-debtor filed application to get benefit under act - application opposed by petitioner on ground that liability under decree was not debt - effect of first proviso to section 6 is to keep alive provisions of repealed cochin transfer of property act for limited purpose of preserving rights, privileges, obligations and liabilities already acquired or accrued prior to date of repeal - held, lower court rightly overruled objections raised by petitioner. - - 7. the first proviso saves the previous..........convert the statutory charge which was available to unpaid vendors under section 56 (4) (b) of the cochin transfer of property act of 1111, into a charge under the transfer of propertv act of 1882 with effect from 1-4-1951 and hence the liability for unpaid purchase-money due to him falls within the exemption contained in section 2 (c) clause (vii) of the act.5. before we proceed to discuss the effect of the provisos to section 6 of the part b states (laws) act, 1951 it is necessary to extract section 2 (c) (vii) of the act (act 31 of 1958) on the strength of which the exemption is claimed by the petitioner. it rims thus:--(c) 'debt' means any liability in cash or kind, whether secured or unsecured, due from or incurred by an agriculturist on or before the commencement of this act,.....
Judgment:

Balakrishna Eradi, J.

1. The revision petitioner is the decree-holder in O. S. No. 402 of 1961 on the file of the Munsiff's Court, Cochin. He obtained the decree for sale of the suit property in enforcement of a mortgage dated 7-1-1124 executed in his favour by the respondent herein. The mortgage had been executed to secure the balance of the sale consideration due by the mortgagor (respondent) to the mortgagee (petitioner) under an assignment deed of even date respecting the plaint property itself.

2. When the decree-holder took steps to execute the decree, the judgment-debtor (respondent herein) filed an application under Section 7 of the Kerala Agriculturists Debt Relief Act. 1958, Act 31 of 1958 (hereinafter referred to at the Act) praying that the decree should be amended in accordance with the provisions of the Act on the ground that he was an agriculturist entitled to the benefits of the Act. The application was opposed by the decree-holder who contended that the liability under the decree was not a 'debt' since the mortgage sued on had been executed to secure the fimount of purchase-money remaining unpaid in respect of a transaction of sale of immovable property between the same parties and was therefore covered by the exemption contained in Section 2 (c) (vii) of the Act.

The lower court overruled the above objection raised by the decree-holder relying on the decision of a Division Bench of this Court reported in Kochukunju Kunjukunju v. Sankaran Ambujakshan, 1962 Ker LT 254, wherein it has been held that in order to come within the scope of Section 2 (c) (vii) of the Act the transaction of sale out of which the liability arose should have been governed on its data by the provisions of the Transfer of Property Act, 1882.

3. As the revision petitioner is challenging the correctness of the above Division Bench ruling, Raghavan, J. before whom this case originally came on for hearing considered that it is desirable that there should be an authoritative pronouncement on the matter by a Full Bench, particularly in view of certain observations contained in a later Division Bench decision reported in Beevi v. Pareed, 1965 Ker LT 104, expressing a doubt regarding the correctness of the decision rendered in 1962 Ker. LT 254, and the case has therefore been referred to this Full Bench,

4. The only ground on which counsel for the petitioner contended that the ruling in Kochukunju Kuniukunju v. Sankaran Ambujakshan, 1962 Ker LT 254, requires reconsideration, is that the Division Bench in deciding that case had not adverted to the two provisos to Section 6 of the Part B States (Laws) Act, 1951, and that if the attention of the learned Judges had been drawn to the said provisos their conclusion would not have been different. It is only on this same reasoning that the learned Judges, who decided 1965 Ker LT 104, have expressed the view (though obiter) that the earlier decision, 1962 Ker LT 254, may require reconsideration, According to the petitioner, the effect of the two provisos aforementioned is to convert the statutory charge which was available to unpaid vendors under Section 56 (4) (b) of the Cochin Transfer of Property Act of 1111, into a charge under the Transfer of Propertv Act of 1882 with effect from 1-4-1951 and hence the liability for unpaid purchase-money due to him falls within the exemption contained in Section 2 (c) Clause (vii) of the Act.

5. Before we proceed to discuss the effect of the provisos to Section 6 of the Part B States (Laws) Act, 1951 it is necessary to extract Section 2 (c) (vii) of the Act (Act 31 of 1958) on the strength of which the exemption is claimed by the petitioner. It rims thus:--

(c) 'debt' means any liability in cash or kind, whether secured or unsecured, due from or incurred by an agriculturist on or before the commencement of this Act, whether payable under a contract or under a decree or order of any Court, or otherwise, and includes any debt or balance of debt due at the commencement of this Act under the Madras Indebted Agriculturists (Re-payment of Debts) Act, 1955, or the Travancore-Cochin Indebted Agriculturists Relief Act, 1956, but does not include -

* * * *(vii) any liability for which a charge is provided under Sub-clause (b) of Clause (4) of Section 55 of the Transfer of Property Act, 1882;'

While it is true that what is material for the applicability of the above provision in Clause (vii) is the category of the liability and not the actual subsistence of the charge on the date of the application, it is essential that to come under the exempted category the liability must be one for which a charge is provided under Section 55 (4) (b) of the Transfer of Property Act, 1882. No exception has been taken before us to this statement of the law as contained in the decision of the Division Bench in 1962 Ker LT 254, and in our opinion, quite rightly, since that is the only interpretation that the plain language of the Section warrants. The contention put forward on behalf of the petitioner is that even in respect of transactions of sale which took place in the erstwhile Cochin area prior to 1-4-1951 (the 'appointed day' under the Part B States (Laws) Act), the statutory charge which was available to the vendor under Section 56 (4) (b) of the Cochin Transfer of Property Act, 17 of 1111, became converted into a charge under Section 55 of the Transfer of Property Act, 1882 by virtue of the operation of the two provisos to Section 6 of the Part B States (Laws) Act, 1951. We have therefore to consider the scope and effect of the provisos to Section 6 of the Part B States (Laws) Act, 1951.

6. Section 6 of the Part B States (Laws) Act, 1951 reads:--

'Repeals and savings: If immediately before the appointed day, there is in force in any Part B State any law corresponding to any of the Act or Ordinances now extended to that State, that law shall, gave as otherwise expressly provided in this Act, stand repealed:

Provided that the repeal shall not affect--

(a) the previous operation of any law so repealed or anything duly done of suffered thereunder, or

(b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed, or

(c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed. or

(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or romedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed:

Provided further that, subject to the preceding proviso, anything done or any action taken (including any appointment or delegation made, notification, order, instruction or direction issued, rule, regulation, form, bye-law or scheme framed, certificate obtained, patent, permit or licence granted or registration effected) under any such law shall be deemed to have been done or taken under the corresponding provision of the Act or Ordinance as now extended to that State, and shall continue to be in force accordingly, unless and until superseded by anything done or any action taken under the said Act or Ordinance.'

The Part B States (Laws) Act, 1951, hereinafter called the said Act, was enacted with a view to provide for the extension of certain Central Laws to Part B States and one of the laws mentioned in the schedule to the said Act is the Transfer of Property Act, 1882. Section 6 of the said Act states that on the Central enactment being extended to the territory of a Part B State any law in force in that State which corresponds to the Central enactment so extended shall stand repealed, and the consequences of such repeal are governed by the saving provisions contained in the provisos to the said Section.

7. The first proviso saves the previous operation of the repealed law and anything duly done or suffered thereunder and also declares that any right, privilege, obligation or liability acquired, accrued or incurred under that law as well as any investigation, legal proceeding or remedy in respect of such right, privilege, obligation or liability shall stand unaffected by the repeal of that law. Thus, both in regard to transactions which are past and closed and also with respect to rights, privileges, obligations or liabilities acquired, accrued or incurred under the repealed law before the appointed date, the rights and remedies which were available to the parties under the repealed law are preserved unaffected by the repeal; in other words in so far as these matters are concerned it is as if the previous law is kept alive notwithstanding its repeal, and the rights and liabilities of parties will continue to be governed by that law.

Hence, as a result of the application of the first proviso, the charge which was available to persons like the petitioner under Section 56 (4) (b) of the Cochin Transfer of Property Act is preserved unaffected by the repeal of that Act and it may be enforced in any legal proceedings, as if the Part B States (Laws) Act, 1951 repealing the Cochin Transfer of Property Act had not been passed. Thus, far from converting the statutory charge available under the Cochin Act, 17 of 1111. into one under the Transfer of Property Act, 1882 as contended by the petitioner, the effect of the proviso is to preserve the charge as one under the old Act itself notwithstanding its repeal.

8. The second proviso which is expressly stated to be subject to the first proviso, only provides that 'anything done or any action taken' under the repealed law shall be deemed to have been done or taken under the corresponding provision of the Central Act as now extended to the Part B State. In our opinion the statutory charge which accrued to the unpaid vendor by reason of the operation of Section 56 (4) (b) of the Cochin Transfer of Property Act cannot be regarded as a 'thing done' or 'action taken' under the said Act so as to fall within the scope of the second proviso It was a right or liability which automatically arose as a legal consequence resulting from the application of the repealed statute to a given set of facts and can therefore legitimately come only within the scope of the first proviso to Section 6 which deals with rights and liabilities acquired, accrued or incurred under the repealed law.

9. We have, therefore, no hesitation to hold that the effect of the first proviso to Section 6 is to keep alive the provisions of the repealed Cochin Transfer of Property Act for the limited purpose of preserving the rights, privileges, obligations and liabilities already acquired, accrued or incurred prior to the date of the repeal, and the remedies for enforcement thereof. In this view, it is manifest that the charge available to the vendor for the unpaid portion of the purchase-money in respect of a transaction of sale of immovable property effected in the erstwhile Cochin State prior to the extension of the Transfer of Property Act to the Cochin area continues to be one under Section 56 (4) (b) of the Cochin Transfer of Property Act only and that the liability of the vendee in such a case cannot therefore fall within the scope of Section 2 (c) (vii) of the Act (Kerala Act 31 of 1958) We accordingly hold that 1962 Ker LT 254, was correctly decided.

10. We are aware that on the above interpretation of Section 2 (c) (vii) of the Act the benefit of the exemption under the said proviso will not be available to unpaid vendors whose transactions of sale took place prior to 1-4-1951 in the erstwhile Travancore and Cochin areas of our State. But that however is the inescapable result of giving effect to the language employed by the legislature. When the words of the statute are clear and unambiguous it is the plain duty of the court to give effect to them whatever may be the consequences. As observed by Finnemore, J. in Holmes v, Bradfield R. D. C. (1949) 2 KB 1 at p. 7 the mere fact that the results of a statute may be unjust or absurd does not entitle the court to refuse to give it effect. In Sutters v. Brings, 1922-1 AC 1 at p. 8, Lord Birkenhead said:--

'The consequences of this view of Section 2 of the Gaming Act, 1935 will no doubt be extremely inconvenient to many persons. But this is not a matter proper to influence the House unless in a doubtful case affording foothold for balanced speculation as to the probable intention of the legislature.'

The court while interpreting the statute and giving effect to its provisions may certainly point out any hardship or anomaly that is likely to result therefrom, but it must be left to the legislature to take appropriate steps to amend the law as and when it deems fit to do so.

11. In the light of our conclusionregarding the scope of Section 2 (c) (vii)of the Act it has to follow that the courtbelow was right in overruling the objection raised by the decree-holder basedon Section 2 (c) (vii) of the Act. TheCivil Revision Petition fails and is dismissed, but in the circumstances without any order as to costs.


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