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Keshavalal Girdharllal Gandhi and ors. Vs. Patel Vithalbhai Shankarbhai and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. Nos. 31, 232, 234, 865, 872 and 885 of 1960 and 399 and 521 of 1962
Judge
Reported inAIR1965Guj275; (1964)GLR988
ActsDebt Laws-Bombay Agricultural Debtors Relief Act, 1947 - Sections 2 (4), 2(6), 4 and 46; Code of Civil Procedure (CPC), 1908 - Sections 141 - Order 22, Rule I; Succession Act, 1925 - Sections 306
AppellantKeshavalal Girdharllal Gandhi and ors.
RespondentPatel Vithalbhai Shankarbhai and ors.
Advocates: I.M. Nanavati, Adv. for; B.A. Kayastha, Adv.,; S.B. Maju
Cases ReferredBireshwar Das Bapuli v. Ppandit Uma Kant Panday
Excerpt:
(i) commercial - adjustment of debt - sections 2, (4), 2 (6), 4 and 46 of bombay agricultural debtors relief act, 1947, section 141, order 22 rule 1 of code of civil procedure, 1908 and section 306 of succession act, 1925 - whether heirs of deceased debtor can continue application for adjustment of debts under section 4 - on death of creditor application not abated - open to debtor to subsequently amend list of creditors by substituting heirs of deceased - order 22 rule 1 applicable to such proceedings - right to sue would survive and heirs could prosecute such application - heirs of deceased debtor can continue application for adjustment of debts made under section 4. (ii) mortgage - whether heirs of mortgagor and purchaser of equity of redemption in case of usufructuary mortgage in.....mehta, j.1. this group of eight civil revision applications involves one or the other of the two important questions under the agricultural debtors relief act as under:(1)whether the heirs of the deceased debtor can continue the applicants for adjustment of debts under section 4 of the act? (2) whether the heirs of a mortgagor and the purchaser of the equity of redemption in case of a usufructuary mortgage, in which there is no clause of personal liability, could make an application for adjustment of debt under section 4 of the bombay act or the saurashtra act?* * * * * * * * * * * *(2) to appreciate the contentions urged before u, it would be proper to consider at the outset the scheme of the act. the preamble of the act states the act is meant to give relief to agricultural debtors and.....
Judgment:

Mehta, J.

1. This group of eight Civil Revision Applications involves one or the other of the two important questions under the Agricultural Debtors Relief Act as under:

(1)Whether the heirs of the deceased debtor can continue the applicants for adjustment of debts under section 4 of the Act?

(2) Whether the heirs of a mortgagor and the purchaser of the equity of redemption in case of a usufructuary mortgage, in which there is no clause of personal liability, could make an application for adjustment of debt under section 4 of the Bombay Act or the Saurashtra Act?* * * * * * * * * * * *

(2) To appreciate the contentions urged before u, it would be proper to consider at the outset the scheme of the Act. The preamble of the Act states the Act is meant to give relief to agricultural debtors and for certain other purposes specified therein. Section 2(4) defines 'debt'. Section 2(5) defines a 'debtor' to mean an individual person or an individual Hindu family as unit. The debtor's definition in section 2(5) read with S. 11 shows that he must be small agriculturist whose debts do not exceed Rs. 15,000. The chapter II of the Act contains sections 4 to 46-G of the Act, which deal with the procedure for adjustment of debts. Section 4(1) provides that any debtor ordinarily residing in any local area for which a Board was established under section 4 of the repealed Act on or after the 1st February 1957, or his creditor may make an application before 1st August 1947 to the Court for the adjustment of his debts. Section 11 provides that no application under secton 4 or 8 shall be entertained by the Court on behalf of or in respect of any debtor, unless the total amount of debts due from him on the date of the application is not more than Rs.15,000/-. Section 12 lays down that an application for adjustment of debts under section 4 or an application or recording a settlement under section 8 shall not be withdrawn without the leave of the Court. Section 15 provides that every debt due from a debtor in respect of which no application has been made under section 4 within the period specified or in respect of which no application for recording a settlement is made or in respect of which an application made to the Court is withdrawn and no fresh application is made under section 4 and every debt from such debtor in respect of which a statement is not submitted tot he Court by the creditor in compliance with the provisions of section 14 shall be extinguished. Section 17 provides for fixation of the two preliminary issues (1) whether the person for the adjustment of whose debts the application has been made is a debtor, and (2) whether the total amount of debts due from such person on the date of the application exceeds Rs.15,000/-. Section 19 provides for transfer of pending suits, appeals, application and proceedings to the Court having jurisdiction under the Act hereinafter referred to as 'the Court'.

Section 20to 22 provides for the manner of taking accounts after the decision of the preliminary issues by the Court. Section 21 then deals with the power of the Court to declare certain transactions purporting to be sales to be in the nature of mortgage. After taking account under section 22, under section 27, the Court next determines,

(1)the particulars of the property belonging to the debtor,

(2)the value of the property,

(3)the particulars of any incumbrances on the said property and

(4)the paying capacity of the debtors

Section 28 provides that the fraudulent alienation or incumrances shall be void and the power is given to the Court itself to declare such alienations or incumbrances to be void. Under section 30 the paying capacity of the debtor shall be deemed to be sixty per center of the value of all the property of the debtor. Section 31 thereafter provides for further scaling down of the debtors payable by the debtors. After determining the amount of debts scaled down in the manner provided in section 31, the Court is to make an award under section 32, subject to the providing of sections 33, in the prescribed form providing for a charge on the property of the debtor, the order or priority of the debts, the instalments and interest. Section 33 further provides for scaling down the amount of debts of the debtor if it exceeds half the value of the debtor's immovable property as determined by the Court. Section 34 thereafter lays down that no recovery shall be made of the amount in excess of the amount as scaled down under the Act and the balance of the debt shall be extinguished. Section 36 provides for ex parte proceedings if any party does not appear before the Court. Section 38 deals with the registration of the award. Section 40 restricts alienation by the debtors all his debts are discharged, except with the previous sanction of the Court. Section 43 provides an appeal and bars a second appeal against any decision or order award of the Court under the Act. Section 46 makes the Civil Procedure Code 1908 (hereinafter referred to as 'the Code') applicable to all proceedings under the said Chapter II, except as otherwise expressly provided under the Act. Finally, section 47 empowers the Court to declare the debtor an insolvent in certain circumstances. From this scheme of the Act, it is clear that the Act is meant to adjust and scale down the debts of the small agricultural debtors as defined, therein.

(3) Mr. Nanavati relied on certain decisions to show that this aspect of relief was purely a personal right of such a debtor. In Manubhai Mahijibhai Patel vb. Trikmalal Laximidas, 60 Bom. LR 1092: (AIR 1960 Bom, 247) my learned brother Miabhoy J., while he was sitting in the High Court at Bombay, had held that in the absence of any agreement making a mortgage personally liable, a purchaser of equity of redemption in case of a usufrutuary mortgage, was not settled to apply under section 4 for the adjustment of the mortgage debt. Even though it was covered under the definition of a 'debt' under section 2(4) inasmuch as such a mortgage debt was not his debt within the meaning of section 4, the application was held to be incompetent. In Bai Mena v. Patel Vithalbhai Shambhubhai, 3 Guj L.R. 194, R.B.Mehta J., following the decisions in Manubhai Patel's case, 60 Bom L.R. 1092: (AIR 1960 Bom 247) had also held that the transferee of a debtor who had no privity of contract with the creditor- mortgagee could not apply under section 4 as it was not his debt. In Mer Ranmal Veman v. Mer Vajshi Parbat : AIR1963Guj280 , our learned brother, Raju J., also took the same view in case of the Saurashtra Act and held that an application for adjustment by an heir of the original usufructuary mortgage was not competent. These three decisions thus only lay down that the person making the application must apply for adjustment of his debts and the transferee or heir who had no personal liability of his own could not make such an application. Mr. Nanavati next relied on the decision in Maruti Babaji v. Martand Narayan Kulkarni, 34 Bom L.R. 749: (A.I.R. 1922 Bom 213), where it was only held that the immunity from attachment and sale in execution of a money decree against the property belonging to agriculturist, by virtue of section 22 of the Dekhan agriculturists' Relief Act, ceased as soon as the property on his death to his legal representatives who were not themselves agriculturists, on the ground that at he material date of the attachment, as the estate of the deceased had come in the hands of the legal representative, it had ceased to belong to the agriculturist. In the next case in Martand Trimbak Gadre v. Amirtrao Raghojirao Damle, 27 Bom L.R 951: (A.I.R. 1925 Bom501) the question had arisen under section 10A of the Dekhan Agriculturists' Relief Act, 1879,which provided that the Court had the power to inquire into and determine the real nature of the transaction whenever it was alleged that it was really a mortgage, at any stage of any suit or proceedings to which an agriculturist was a party. Therefore, before invoking section 10A, the condition that the person was an agriculturist had to be fulfilled at the material date, when such question was raised. Accordingly, it was held that a legal representative who was not an agriculturist and who was brought on record in the place of the original agriculturist could not take advantage of section 10A to have the issue tries that the transaction was in the nature of a mortgage. Finally, Mr. Nanavati relied on the decision in Shantaram Ganpat v. Lalit Vithal : AIR1957Bom162 where it was held that an application under S.47 (1A) of the Bombay Agricultural Debtors Relief Act for modification of the terms of the award made by the Court could only be made by the debtor and not by his heir. These authorities, therefore, only lay down that the right to make an application for adjustment of the debts under S.4 or that for modification of an award under S.47 (IA) is personal to the debtor and cannot be availed of by the heirs or the transferees. So also, the rights of claiming immunity from attachment under S.22 of the Dekhhan Agriculturist's Relief Act or to take advantage of S.10A thereof were held to be personal to the agriculturist and if he was not so at the relevant date, he could not get the said advantages. But none of these cases deal with the first question which has arisen before us.

(4) Here, the application for adjustment of debts was made by the debtor himself and the same when made, was legally competent. The question is not whether the heirs could initiate any such independent proceedings in their own right, but whether they can continue the proceeding already instituted under S.4 by the debtor himself. Section 46 of the Act, as we have already stated, makes the provisions of the Civil Procedure Code 1908, applicable to all proceedings under the Act, in absence of any express provision to the contrary. Under S. 141 of the Code, such an application under S.4 would be an original proceeding and the procedure for suits will be applicable to such a proceeding. Under O.22, R.I of the Code, a suit shall not abate if the right to sue survives. For considering whether the right to sue survives in case of such a special proceeding, it would be proper to consider S. 306 of the Indian Succession Act, Act XXXIX of 1925. It provides that all demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators except causes of action for defamation, assault, as defined in the Indian Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory. It is true that section in terms cannot apply here. But the principle on which it is based would be clearly applicable, viz., that the right to continue such a proceeding will survive unless the relief sought could not be enjoyed or granting it would be nugatory. It is only in exceptional cases in case of actions for damages for personal wrong that the maxim Actio personalis moritur cum persona has application. Such a rule has no application to claims for property. After an application is made within the time prescribed under S.4 the right to get the debt adjusted can be said to have been crystallized. The right to continue such a special proceeding for securing adjustment of the debt would, therefore, clearly survive on the analogy of S. 306 of the Indian Succession Act as such a relief in the matter of debts could be obviously enjoyed and would not become nugatory.

(5) Mr.Nanavati and Mr.Shah vehemently urged that the relief in such cases would be nugatory and would even clearly frustrate the aim and object of the Act. The aim and object of the Act was clearly to benefit the small agriculturists debtors and it was, therefore, urged that granting of reliefs to an heir who may not be such a small agriculturist debtor as contemplated by the Act would be obviously making it nugatory. We cannot accept this argument for the simple reason that in such cases he relief would not be nugatory for the heirs would be able to enjoy the same. Besides, there is no provision in the Act that even if a person ceases to be a debtor after he has filed an application, he ceases to be entitled to any such adjustment of his debts. Therefore, the argument based on the aim and object of the Act does not appoint to us in such a case where the heirs merely continue the proceedings already instituted by the debtor. Section 17 which also provides for the tow statutory preliminary issues viz., whether a person for the adjustment of whose debts the application is made is a debtor and whether the total amount of debts due from and such a person on the date of the application exceeds Rs.15,000/- would be equally applicable even if the heir continues such an application. Mr.Shah, however, urged that the Act provides an integrated scheme for adjustment of the debtors' debts meanwhile keeping intact the entire property for the benefit of the creditors and such a scheme would be unworkable and would be completely frustrated by permitting the heir to continue the application. He relied on Ss. 40,47, and 32 of the Act for this purpose not contended that unlike the debtor, the heir would not be subject to restrictions in the matter of alienations and could dispose of the entire property and thereafter no property would be left on which the charge under S.32 could operate land thus the heir would be in a better position than ever the debtor himself. Section 28 makes an analogous provision to S. 53 of the Transfer of Property Act. Act 4 of 1882 so that this special Court itself could declare any alienation made by the debtor to be void, if it was with intent to defeat or delay the creditors. This section must refer to an alienation which has been made prior to the date of application, for subsequent alienations are restricted are and are dealt with under S.40 of the Act and they would be invalid but of the Court's sanction. Thus, S.28, therefore, obviously could not apply to an heir who continues the application. Similarly, S.32 (2) (iv) which provides that in fixing the amount of instalments in which the debt shall be paid, the Court shall ascertain the net annual income of the debtor and the annual instalments payable by the debtor shall not exceed his net annual income, clearly contemplates the annual income of the debtor being taken into account. This special proviso may, therefore, be inapplicable in the case of an heir. Section 47 also, which provides for the debtor being declare insolvent in certain circumstances, may by its very nature be inapplicable to the case of an heir. Therefore, really S.40 was the main stay of Mr.Shah. It provides that, notwithstanding any law or contract but subject to the provisions of Ss.41 and 53 no alienation of any property belonging to a debtor who is a party to any proceedings under the Act or an award registered under the Act, made by him before all his debts are discharged shall be valid, except with the previous sanction of the Court. Prima facie, it appears that he restriction is on the alienation made by the debtor and it may not apply to the heir. It is, therefore, urged that if an heir were to prosecute the application, the entire property may be taken out of the reach of the creditors and the integrated scheme under the Act would be unworkable, especially as under such property in the final award. It may be that there is a lacuna in the section or in the context, the words 'made by him: may have to be widely interpreted to cover such an heir who is a party to the proceedings in place of the debtor, especially as in the case of a joint family which is treated as a distinct debtor under section 2(5)(b), the alienation by the co-parceners must be deemed to be covered in the ambit of the section. The question of the proper construction of this section is not before us. But whatsoever may be it true import, one thing is certain that the provisions of the Code were not intended to be excluded by the section and merely because there may not be any such restriction on alienation in the case of an heir, it cannot be contended that the Act would become unworkable. The Act would properly operate even in the absence of such a section, as in that case. S. 53 of the Transfer of Property Act may have to be resorted to for the protection of the creditors by approaching the proper Court. On the other hand, there are indication in the Act which would show that the exclusion of S. 22 of the Code was not at all intended in the scheme of the Act. In the case of a debtor having many creditors if any one of the creditors dies, the application could not abate and the heirs of the creditors must be allowed to be brought on the record, as otherwise the whole object of the Act would be frustrated. The same rule must equally apply even in the case of the debtor's death. Section 19 deals with transfer of a suit to the Court which would by its very nature suggest that such a proceeding could not abate by the death of the debtor. On such a transfer the suit or the proceeding is to be treated under S.19 (3), as if an application under S.4 had been made to the Court. But still the suit or the proceeding continue to retain its original nature and to such a suit or proceeding O.22 of the Code shall be clearly applicable. Section 4 also provides for an application for adjustments of the debts made within the prescribed period and once such application is made, the right of the debtor to get his debts adjusted gets crystallized and such an application must result in the final award. Even for withdrawal of such an application, S.12 requires the leave of the Court to be first obtained. Section 36 further provides proceedings being held ex parte, if any of the parties did not appear. The intention, therefore, appears to be that the application must result in the final award as contemplated under S.32, and it could not possibly abate. In any event, so long as there is no express provision to the contrary, which provides that O.22 of the Civil Procedure Code will not apply, S.46 of the Act in terms makes it clear that the Civil Procedure Code shall be applicable. In an unreported judgment in Patanwadia Chatur Ghela v. Pathak Rasiklal Manilal, in Civil Revn. Appln. No. 767 of 1950, D/- 7-12-1950(Bom) Chagla, C.J. had held that in view taken in a number of matters by the Bombay High Court was that an application by the debtor was not directed against any particular creditor but was merely an application for adjustment of debts and such an application should not be construed strictly as a suit and, therefore, on the death of the creditor the application did not abate but it was open to the debtor at any time subsequently to amend the list of the creditors by substituting the heirs of the deceased. It is not necessary for our purpose to go so far as to hold that there would be no question of abatement for in view of the clear terms of S. 46 which makes O.22, R.1 of the Code applicable to such a proceeding, the right to sue would survive and the heirs could prosecute such an application. Our answer, therefore, on the question is that the heirs of the deceased debtor and continue the application for adjustment of debts made under S.4 of the Act.

(6) As regards the second question very elaborate arguments were urged to persuade us to depart from the settled view of this Court in the three judgments earlier referred to which lay down that an heir or a transferee of a mortgagor in the case of an usufructuary mortgage could not make an application under S.4 of the Bombay Act or Saurashtra Act as in the absence of any personal liability, the debtors could not be said to be his debt. Mr. M., I.Patel and Mr. Majumdar however, relied on an unreported decision of the Supreme Court in Naunilal Kishan v. Pratap Singh, in Civil Appeal No, 594 of 21960, D/- 13-3-1963: (Since reported in : [1964]2SCR293 ) and urged that after the said decision the said three decisions were no longer good law. That case had arisen under the Displaced Persons (Debts Adjustment) Act, 1951, LXX of 1951 which provides for the adjustment and settlement of debts due by displaced persons. Section 2(9) defines a 'displaced person' as a displaced person from whom a debt is due or is being claimed. Section 2(6) defines the word 'debt' as any pecuniary liability, whether payable presently or in future or under a decree or order of civil or revenue Court or otherwise, or whether ascertained or to be ascertained ......'. Under section 5(1) it is provided that 'at any time within one year after the date on which the said Act came into force in any local area displaced debtors may make an application for the adjustment of his debts to the Tribunal within the local limits of whose jurisdiction he actually and voluntarily resides, or carries on business or personally works for gain......'.

Section 16(4) provided that:

Notwithstanding anything contained in this section, where a debt is secured by a mortgage of agricultural lands belonging to a displaced person in West Pakistan and the mortgage was with possession, the mortgage shall if he has been allotted lands in India in lieu of the lands of which he was in possession in West Pakistan, be entitled to continue in possession of he lands so allotted until the debt is satisfied from the usufruct of the lands is redeemed by the debtor.

Provided that in either case he amount of the debts shall be only that amount as bears to the total debt the same proportion as he value of the lands allotted to the creditors in India bears to the value of the lands left behind by him in West Pakistan and to the extent the debt shall be deemed to have been reduced'.

In that case the usufructuary mortgage was containing a case for personal liability but the Supreme Court had considered the questions of maintainability of the application under S.5 of that Act at the instance of the original mortgagor Sham Singh and of the purchaser of the equity of redemption Prartap Singh even apart from that clause on a true construction of S.16 (4) of the Act. The Supreme Court held that the expression 'pecuniary liability' in the definition the word 'debt' in S.2 (6) of that Act had to be understood not in isolation but with reference to other provisions of the Act and particularly S.16 which contained s specific provision for adjustment of debts secured by mortgage on immovable property and left no doubt that such mortgage debts were included in its scope and that they wee also to be scaled down. Therefore, it was held that the displaced debtors could file an application for adjustment of such debt on the plain terms of S.5 read with section 16 and it was wholly immaterial whether or not the creditor is entitled to proceed personally against the debtor and recover the amount of the mortgage. The supreme Court had referred to the Bombay High Court judgment given by my learned brother Miabhoy J. in Manubahai's case, 60 Bom LR decision turned wholly upon the decisions contained in the enactment before the Court and could not be called in aid as laying down any general proposition of universal application. Their Lordships had also observed:

'There is therefore, no scope for the argument based on the analogy of other enactment in which the word 'debt' has been construed as indicating the necessity for a personal liability or an obligation to repay on part of the debtor'.

In the ratio of this decision, therefore, is that the question whether personal liability was the necessary ingredient or not would turn on the particular scheme of the relevant enactment. In view of the special terms of section 16(4) of that Act, the security being by way of an usufructuary mortgage and the right of debtor to redeem were held to be sufficient to attract the provisions of the section and personal liability was not held to be a necessary ingredient., it should be noted that section 2 (6) of that Act which defines the word 'debt' had not used the expression 'debt due from him' and the debtor was not defined as a person who is indebted. Besides section 5 contemplated application by the displaced debtors only and not by their creditors. The decision turned only on the construction of section 16(4) of that Act under which the right to redeem was held o be sufficient to invoke its beneficent provision. That decision would not apply to the statute under our consideration if on a true construction of its scheme we come to the conclusion that the necessary ingredient was the personal liability and not the right to redeem. Similarly the decision of the Calcutta High Court in Kailash Chandra v. Ram Kanai : AIR1939Cal177 , which held that a purchaser of the equity of redemption was a debtor and of the Allahabad High Court in Bireshwar Das Bapuli v. Ppandit Uma Kant Panday : AIR1937All297 which also construed the definition of the debtor in a wider sense so as to include not only the person who was personally liable but also a mortgagor the successor of the mortgagor who had to pay the debt to the mortgagee also turned on the provision of the enactment in question in those cases and could have no general application.

(7) We would, therefore, consider the relevant provisions which arise for our consideration. Section 2(4) defined 'debt' as meaning only liability in cash or kind, whether secured or unsecured due from a debtor whether payable under a decree or order of any Civil Court or otherwise and includes mortgage money the payment of which is secured by the usufructuary mortgage of immovable property but does not include arrears of wages payable in respect of agricultural or manual labour. Section 2 (5) gives the definition of a debtor as under :

'Debtor' means -

(a) an individual

(i)who is indebted ;

(ii) who holds lands for agricultural purpose or has held such land at any time not more than 30 years before the 30th January 1940, has been transferred is in the nature of a mortgage although not purporting to be so ;

(iii) who has been cultivating land personally for the cultivating seasons in the two years immediately preceding the date of the coming into operation of this Act or of the establishment of the Board concerned under the repealed Act; and

(iv) whose annual income from sources other than agriculture and manual labour does not exceed 53 per cent of his total annual income or does not exceed Rs. 500/- whichever is greater;

(a) an undivided Hindu family---

(i) which is indebted;

(ii) which holds lands used for agricultural purposes or has held such land at any time not more than 30 years before the 30th January 1940 which land has been transferred whether under an instrument or not and which transfer is in the nature of a mortgage although not purporting to be se;

(iii) which has been cultivating land personally for the cultivating seasons in the two years immediately preceding the date of the coming into operation of this Act or of the establishment of the Board concerned under the replaced Act; and

(iv) the annual income of income which from sources other than agricultural and manual labour does not exceed 40 per cent. of its total annual income and the aggregate of such incomes of the members of which does not exceed Rs. 1500/-

Explanation I --- For the purposes of this clause 'agriculture' includes horticulture, the raising of crops or garden produce, dairy farming, poultry farming, stock breeding and grazing, but does not include leasing of land or cutting only of wood;

Explanation II--- In the case of ---

(a)any person who dies leaving his heir, a widow or a minor or a person who is subject to physical or mental disability, or

(b)an undivided Hindu family, in when there are no adult male co-parceners capable of cultivating the land personally,

the income derived by such heir or family by the lease of land for an agricultural purpose shall, not withstanding anything contained in Explanation I, be deemed to be income from agriculture'.

In our Act, section 4 (1) is the material section which has to be construed by us. It is as under:

'4 (1) Any debtor ordinarily residing in any local area for which a Board was established under section 4 of the repealed Act on or after the 1st February 1947, or his creditor may make an application before the 1st August 1947 to the Court for the adjustment of his debts'.

Under that section an application has to be made for the adjustment of his debts. It was contended that the word 'his' was superfluous and was in fact omitted in the corresponding section 4 of the Saurashtra Act. We cannot agree as even in the Saurashtra Act such nexus between the creditor and the debtor is implicit for the debtor under section 2 (6) sub-clause (1) is an agriculturist whose debts did not exceed Rs. 25,000 on the date of filing an application to the Board under section 4. Similarly, the words 'his debts' also could not be said to refer to the creditor's debts in the sense that the creditor owns such debts. In-section 17 (2) of the Bombay Act and section 16 (4) of the Saurashtra Act we do find expression 'debts of all creditor's but so far as section 4 is concerned the expression 'adjustment of his debts' in the Bombay Act or the expression 'adjustment of debts' in the Saurashtra Act could not refer to the creditor's debts for the simple reason that the right to apply is conferred under section 4 only on the debtor or his creditor to apply for such adjustment. Therefore, the word 'his debts' would in this context only mean the debts of the debtor. The definition of the word 'debt' in section 2 (4) clearly implies the two necessary ingredients, that the debt is due from the debtor and that it must be payable by him, whether under a decree or order of any civil Court or otherwise. This would clearly mean that a creditor-debtor relationship or a concept of personal liability is implicit in this definition. That is why there is a further clause in the said definition which includes in the Bombay Act, mortgage-money, the payment of which is secured by the usufructuary mortgage of immovable property and under section 2 (5) of the Saurashtra Act, includes mortgage money, the payment of which is secured by the usufructuary mortgage or by anomalous mortgage in the nature of PURA CHHOOT of immovable property, which would otherwise have been excluded from the concept of debt, there being no personal liability or obligation to repay the debt in such cases. But the artificial inclusion must be limited to the special cases which have been included in the definition. Even though there is no personal liability, the mortgagor under a usufructuary mortgage or one in the nature of poora chhoot would be himself covered under this artificial inclusion and such a mortgagor could apply under section 4 and he would be deemed to be asking for adjustment of his debts even though he had no personal liability. Except for this artificial inclusion, the word 'debt', due from a debtor or payable by him, must involve a personal liability and in the absence of such a personal liability, it would not be his debt for which an application under section 4 would be competent. The definition of the word 'debtor' in section 5 also contemplates that the debtor must be either an individual who is indebted or an undivided Hindu family which is indebted. It refers to a person who is liable and not to the estate which is indebted. Explanation II in the said subs. 2 (5) and the definition in S. 2 (14) of the expression 'to cultivate personally' were strongly relied upon to show that a widow or a minor heir of a deceased debtor is in terms included in the term 'debtor'. The Explanation II as well as section 2 (14) have only a limited purpose and they do not have any impact on the requirements of the first two clauses of section 2 (5), viz., (1) that the debtor must be one who is indebted and (2) that he holds land used for agricultural purposes or has held such land as stated therein. The only effect of the Explanation II and the definition in section 2 (14) is that where an heir, who is a widow or a minor or a person under disability, claims to be a debtor, the conditions contemplated in sub-clauses (3) and (4) are relaxed to the extent that even where there is no personal cultivation and the cultivation is by servants or hired labour or by tenants on behalf of such heir, tenant, it is deemed to be personal cultivation and the income derived by the lease of the land is deemed to be an agricultural income. They do not dispense with the first two conditions which even such an heir must fulfil viz., that he must be himself indebted and that he must hold the land. Therefore, in view of the special features in the Acts before us, viz., (1) the debt must be due from the debtor whether payable under a decree or order of a civil Court or otherwise (2) the debtor is defined as a person who is indebted, and (3) the adjustment is confined to his debts, we cannot agree that even if there is no personal liability or no contractual relationship of creditor and debtor such a person could make an application under S. 4. The only exception is in the case of a usufructuary mortgagor under the Bombay Act or a usufructuary mortgagor as well as the anomalous mortgagor of a mortgage in the nature of Pura Chhoot under the Saurashtra Act, who though not personally liable, have been artificially included by the extended definition of the word 'debt'. There is no further extension of this exception to the heirs or purchases of equity of redemption who are not personally liable for the debts and who have no privity of contract.

(8) There is one more reason for holding that personal liability is a necessary ingredient under our Acts and mere right to redeem is not sufficient to invoke the beneficent provisions of these Acts. This is because our section 4 is equally applicable both to the debtors as well as to the creditors and so even a creditor can apply for the adjustment of the debtor's debts. Mr. Shah ably argued that under our Act, if an heir or a transferee were included in the term debtor, its effects would be wholly unintended and the Act instead of being a measure of relief would create a new personal liability of such heir or transferee which did not exist in the general law. Under S. 27, particulars of his property would have to be given. Under S.32 charge on all properties would be created. Under S. 47 such a debtor can be declared insolvent under certain circumstances. Under section 40, there would be a restriction on alienation of all his property. Besides, his creditor could apply under S. 4 against such an heir or a transferee for a debt which is not his own and would make him personally liable only as a result of these proceedings. Such a result could not have been intended by the Legislature. Similarly, we cannot hold that the heir could file an application, not as a debtor in his own right, but as a representative of the deceased because section 4 confers a personal right on the debtor himself which could not devolve on the heirs or the transferees.

(9) An attempt was made to rely on sections 11, 22 and 24 sub-clauses (1) and (2) to show that us heir could make such an application. Section 11 provides that no application under section 4 or 8 would be entertained by the Court on behalf of or in respect of a debtor unless the total amount of debts due from him on the date of the application is not more than Rs. 15, 000/-. Although section 11 uses the expression 'on behalf of' or 'in respect of' any debtor, it is clear that the application is to be in respect of debts due from the debtor and, therefore, this provision cannot be relied on for this purpose. Section 22 provides that an account shall be taken between the parties from the commencement of transactions subsisting between the parties and the persons, if any, through whom they claim. Proviso to sub-clause (6) also provides that a settlement of accounts signed by a debtor or a person through whom the liability is derived shall be accepted as binding between the parties. This section also may cove cases of an heir who would have undertaken the personal liability or who might have been conferred a special privilege as in S. 24 (2) of the Act. Such a provision could not be pressed in service for the purposes of the broad proposition that a debtor would include an heir or a transferee in all cases, irrespective of the question of personal liability. Finally, section 24 was relied upon. Section 24, clause (1) gives power to the Court to declare a transfer purporting to be a sale to be in the nature of mortgage, if a question arose during the course of the hearing of an application made under section 4 that any transfer of land by a person whose debts are being adjusted under the Act or any other person through whom he inherited it was a transfer in the nature of a mortgage. This section clearly contemplates the question being raised during the course of the hearing of an application made under section 4 and the transfer must be alleged to have been made by the debtor or by any of his predecessor. This section, therefore, could not be invoked in aid by an heir for supporting the present proposition. Section 24 (2), however, provides that any agricultural labourer may make an application before 1st August 1947 to the Court that any transfer of land by him or any other person through whom he inherited it was a transfer in the nature of a mortgage. It further provides that when the Court makes any such declaration, the applicant shall, notwithstanding anything contained in the definition of 'debtor' in sub-section (5) of section 2, be deemed to be a debtor for the purpose of this Act and the Court shall proceed as if an application under S. 4 had been made to it. This section appears to confer a right on an agricultural labourer for challenging a transfer in the nature of a mortgage, provided an application is made before 1st August 1947. In such a case a person who was an heir could also challenges such a transfer made by a person from whom he inherited. This section thus appears to confer a special right on certain heirs in certain circumstances and it could not be invoked to support the general proposition that an heir would be always included in the term 'debtor' under the Act. In fact, as the wording of this section itself suggests, wherever the Legislature intended to include such an heir in the term 'debtor' a specific provision has been made by incorporating the fiction that such an heir would be deemed to be a debtor and the Court shall proceed as if the application under section 4 had been made to it. We, therefore, cannot agree that this section can be relied upon for the purposes of showing that an heir or a transferee could make an application under section 4 of the Act.

(10) Therefore, we find no reason to depart from the settled view taken in the three earlier decisions already referred to and we agree with the same and we hold that in the absence of any personal liability, an heir or a purchaser of equity of redemption could not maintain such an application under section 4 of the Bombay Act or the Saurashtra Act, as the scheme of the Saurashtra Act is also similar except for the minor differences already indicated and the same reasoning would, therefore, hold good even under the Saurashtra Act. Our answer therefore, to the second question is that the that the heirs of a mortgager or a purchaser of equity of redemption in case of usufructuary mortgage in which there is no clause of personal liability could not make an application for adjustment of debts under section 4 of the Bombay Act or the Saurashtra Act.

(11-22) * * * * * * * * *

23. Order accordingly.


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