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Abbasali Yusufali Vs. Fazalali Isufali - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1962)3GLR676
AppellantAbbasali Yusufali
RespondentFazalali Isufali
Cases ReferredSri Sri Nandkishore Ananga Bhima Dev Kesari Gajanathi v. Susilamala Patta Mahadevi and Ors. A.I.R.
Excerpt:
.....both the debtor as well as the creditor are from the former rajpipla state. so in this case the personal cultivation that would be required would be for two years prior to 15th september 1945. in other words he should have cultivated personally for two cultivating seasons prior to 15th september 1948. both the courts came to the conclusion that this condition was not satisfied in regard to the petitioner. as i have stated earlier assuming the receivers possession to be the possession of the petitioner it is difficult to say that the cultivation by the receiver is under the personal supervision of the petitioner in these circumstances the requirements of section 2(14) are not satisfied in this case. if a creditor for one reason or another does not make an application under section 4 in..........possession and that the cultivation by the receiver in this manner should be deemed to be the personal cultivation of the petitioner. it is the case of the petitioner that his father was cultivating the land in question since 1935; that his father died on the 28 december 1942; that the petitioner being born in 1926 was at the time of the death of his father a minor and that immediately after his fathers death the petitioner was dispossessed of the land in question. the petitioner therefore filed a suit on the 2nd february 1944 in the court of the former state of rajpipla and immediately after filing of the suit a receiver was appointed who took possession of the land in question. after the merger the suit was renumbered in the jhagadia court and the jhagadia court passed a decree in.....
Judgment:

R.B. Mehta, J.

1. This is a revision application against an order passed by the learned District Judge Broach dismissing the appeal of the petitioner against an order made by the learned Civil Judge Junior Division Jhagadia in execution proceedings against the present petitioner who was original defendant No. 5 in the suit in which the relevant decree was passed. This revision application raises a question under the Bombay Agricultural Debtors Relief Act 1947 (hereinafter referred to as the Act). The facts leading to this application are this way.

2. The opponent-plaintiff filed a Darkhast No. 7/1954 in the Court of the Civil Judge Jr. Dn. Jhagadia for execution of a decree dated 3rd December 1948 which was passed in his favour against several defendants one of whom was the present petitioner (defendant No.5). The decretal amount is Rs. 1952-13-2. The defence taken by the present petitioner in the said Darkhast was that the relevant debt was extinguished as no application was made under Section 4 of the Act on the ground that the judgment-debtor was a debtor under the said Act. The executing Court decided against the petitioner holding that the petitioner was not a debtor under the Act as he was not cultivating land personally for two years immediately preceding the date of coming into operation of the Act. On appeal the learned District Judge Broach confirmed the order of the trial Court. It is against this order of the learned District Judge that this revision application is filed.

It is necessary to state that both the debtor as well as the creditor are from the former Rajpipla State. The Act was applied to the former Rajpipla State on 15th September 1948 on its merger with the former State of Bombay by the Bombay Merged Areas (Amendment of Laws) Act 1949 - The date 1st August 1947 in Section 4 was substituted by the date 15 June 1949 for the territory of the former Rajpipla State. Section 4 of the Act provides as follows:

(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.

By Section 15 of the said Act it is provided that every debt due from a debtor in respect of which no application has been made under Section 4 within the period specified in the said Section 4 shall be extinguished. It was contended by the judgment-debtor that he was a debtor as defined in this Act and that in respect of his debt no application was made either by him or by his creditor under Section 4 of the Act and that therefore under Section 15 of the Act the debt due to the judgment-creditor was extinguished and that therefore no execution could be levied against him.

3. Both the Courts however came to the conclusion that Section 4 of the Act was nor applicable in this case as the judgment-debtor did not satisfy the definition of a debtor under the Act. A debtor is defined by Section 2(5) as follows:

(5) debtor means.

(a) an individual

(i) who is indebted;

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

(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 33 P.C. of his total annual income or does not exceed Rs. 500/- whichever is greater.

4. The contention of Mr. Desai was that by reason of the facts which I will be presently referred to the land in question being in the possession of a receiver and cultivated by the receiver through either the tenants or servants or hired labourers the possession of the receiver should be deemed to be the petitioners possession and that the cultivation by the receiver in this manner should be deemed to be the personal cultivation of the petitioner. It is the case of the petitioner that his father was cultivating the land in question since 1935; that his father died on the 28 December 1942; that the petitioner being born in 1926 was at the time of the death of his father a minor and that immediately after his fathers death the petitioner was dispossessed of the land in question. The petitioner therefore filed a suit on the 2nd February 1944 in the Court of the former State of Rajpipla and immediately after filing of the suit a receiver was appointed who took possession of the land in question. After the merger the suit was renumbered in the Jhagadia Court and the Jhagadia Court passed a decree in favour of the plaintiffs title and also for possession on 30th November 1950. Now personal cultivation is required under Clause (iii) of Section 2(5)(a) of the Act for two years immediately preceding the date of the coming into operation of this Act. So in this case the personal cultivation that would be required would be for two years prior to 15th September 1945. In other words he should have cultivated personally for two cultivating seasons prior to 15th September 1948. Both the Courts came to the conclusion that this condition was not satisfied in regard to the petitioner. Mr. Desai's argument however was that the suit was decreed in favour of the petitioner on 30th November 1950 and that prior to that date the lands were in possession of the Receiver who had got the lands cultivated either through the tenants or through servants or hired labourers when the Receiver was appointed sometime in 1944. Mr. Desai contended that the Receiver cultivated this land for at least two years prior to 15th September 1948 and that therefore the cultivation by the Receiver should be deemed to be cultivation by the petitioner. Mr. Desai in support of his argument relied on the case of Sri Sri Nandkishore Ananga Bhima Dev Kesari Gajanathi v. Susilamala Patta Mahadevi and Ors. A.I.R. 1940 Madras 850 where on a difference between Mr. Justice Burn and Mr. Justice Stodart the case was referred for the opinion of Mr. Justice Wadsworth and Mr. Justice Wadsworth agreed with the opinion expressed by Mr. Justice Burn to the effect that the possession of a receiver pendente lite must be held to be the possession of the party who is ultimately declared to be successful. At page 850 of the report Mr. Justice Burn observes as follows:

But in my opinion and in this my learned brother differs from me a complete answer to these arguments is furnished by the principle that the possession of a receiver pendente lite must be deemed to be the possession of the party who is ultimately declared successful. Here the plaintiff had succeeded in the Court of first instance He was then declared to be entitled to immediate possession of the estate. He applied to the Court to be put into possession that application was stayed. Nevertheless the defendant was not allowed to remain in possession. A receiver was appointed and put in charge of the estate. But the estate is a profit yielding concern and the receiver had strictly to account for the profits. On whose behalf did he hold these profits? The answer, must be in my opinion on behalf of the party ultimately declared successful. And if he had to account for the profits to that person he should be deemed to have held the estate on behalf of that person.

5. Assuming this to be a correct proposition of law what it says is that where a receiver is appointed Pendente lite and when the receiver tales possession of any immovable property then the receiver must be deemed to have held the same of behalf on the party who is found to be ultimately the successful party. In other words the possession of the receiver must be held to be the possession on behalf of the party who ultimately succeeds. In other words it can be said that the party who was found ultimately successful held the lands in question through the receiver. That means the receiver was the agent of the party who was found ultimately successful. But there is difficulty in the way of Mr. Desai for the expression to cultivate personally has been defined by Sub-section (14) of Section 2 as follows:

(14) to cultivate personally means to cultivate by ones own labour or by the labour of any member of ones family or by servants or hired labour under ones personal supervision or the personal supervision of any member of ones family.

Explanation I to this sub-section says as follows:

If a person who was cultivating personally dies leaving as his heir a widow or a minor or a person who is subject to physical or mental disability such heir shall be deemed to cultivate the land personally notwithstanding the fact that the land is r cultivated on behalf of such heir by servants or hired labour or by tenants.

6. Mr. Desai's argument on this provision was however put in two ways. Firstly Mr. Desai contended that the suit was filed on the 2nd February 1944 and the petitioner was born on the 3rd June 1926 and that therefore the petitioner would attain majority about the 2nd June 1944 and that consequently he was a minor at the date of the suit and therefore he continued to be a minor till the decision of the suit on the 30th November 1950. Mr. Desai contended that the suit was filed by the next friend on behalf of the minor and that the next friend was not discharged till 30th November 1950. Mr. Desai further contended that therefore by reason of the explanation that when the land was cultivated by the tenants or servants or hired labourers of the receiver and when the receivers possession should be deemed to be the possession of the petitioner the cultivation by the receivers tenants servants or hired labourers is the personal cultivation by the minor. In my view this argument cannot be sustained. The petitioner attained majority on or about the 2nd June 1944. Therefore after that date he would not be a minor and from the mere fact that the next friend was not discharged from the conduct of the suit it does not follow that the petitioners minority continued till the decision of the suit. By his own voluntary act in not getting the next friend discharged from the conduct of the suit it was not open to the minor to extend the period of minority which had ended on the 2nd June 1944. In my view therefore it cannot be contended that for the relevant two years prior to the 15th September 1948 the petitioner was personally cultivating the land for the reason that the land was being cultivated by the receivers tenants servants or agents on the ground that the petitioner continued to be a minor till 30th November 1950. In my view therefore it is not possible to sustain the argument advanced by Mr. Desai on this basis.

7. The second way in which Mr. Desai put his argument before the Court as that the petitioner became ultimately the successful party in that suit and that because of that the possession of the receiver was the petitioners possession and that the cultivation by the receiver should be deemed to be the personal cultivation by the petitioner. But Mr. Desai had to face another difficulty in regard to this argument for Sub-section (14) of Section 2 of the Act requires for the purposes of personal cultivation that a person should either cultivate by ones own labour or by the labour of any member of ones family or by servants or by hired labourers under ones personal supervision or the personal supervision of any member of ones family. Now in this case ex hypothesis the cultivation is by the receiver through his tenants servants and agents. Therefore it is not the cultivation either by the labour of the petitioner or by the labour of any member of the petitioners family. Neither it is cultivation by servants or hired labourers under the personal supervision of the petitioner or of any member of the petitioners family. It is difficult to say that cultivation through a receiver satisfies the element of cultivation under ones personal supervision. Cultivation by a receiver is at the most cultivation by an agent; and to fall under the definition of to cultivate personally there must be an element of personal supervision which is lacking in this case. In these circumstances it is difficult to accept Mr. Desai's contention that the cultivation by the receiver in this case is a personal cultivation on behalf of the petitioner. As I have stated earlier assuming the receivers possession to be the possession of the petitioner it is difficult to say that the cultivation by the receiver is under the personal supervision of the petitioner in these circumstances the requirements of Section 2(14) are not satisfied in this case. Therefore it cannot be said that the petitioner was a debtor as contemplated under Section 4 of the Act. Mr. Desai further contended in this regard that by Section 4 of the Act there was an absolute duty cast on the creditor to make an application under Section 4 and that if such an application is not made then under the provisions of Section 15 of the Act the debt is extinguished. Mr. Desai's further contention was that until such an application is made and adjudicated and the question whether the debtor is a debtor under the said Act is decided it cannot be said that the debtor is not a debtor under the said Act. Mr. Desai drew my attention to Sub-section (2) of Section 15 of the Act which provides as follows:

(2) Nothing in this section shall apply to any debt due from any person who has by his declaration act or omission intentionally caused or permitted his creditor to believe that he is not a debtor for the purposes of this Act or that no application under Section 4 can be entertained in respect of any debt owed by such person to such creditor by reason of the provisions of Section 11.

8. Basing his argument on this Sub-section (2) Mr. Desai said that his client had done nothing by which he intentionally led his creditor to believe that he was not a debtor and that therefore his creditor was not exonerated from his absolute obligation under Section 4 to got the status of the judgment-debtor adjudicated and to find out whether he is a debtor under the Act or not. It is difficult to accept this argument of Mr. Desai. It is not correct to say that Section 4 casts an absolute obligation on a creditor to make an application for the adjustment of his debts due to him irrespective of the fact whether the debtor is a debtor as contemplated under the Act The obligation to make an application Under Section 4 is in connection with a debtor who is a debtor as contemplated under the Act. If the debtor is not a debtor as contemplated under the Act then under Section 4 there is no obligation on the creditor to make an application for the adjustment of debts due to him. It is only in cases where the debtor 85 a debtor under the Act that an application under Section 4 has to be made. If a creditor for one reason or another does not make an application under Section 4 in respect of any of his debtors then the creditor takes the risk if the debtor is a debtor within the meaning of the Act and the creditors failure to make an application will result in the extinguishment of his debts. On the other hand if at the time when the question arises the debtor is found not to be a debtor within the meaning of the Act then in that case the provisions of Section 4 obviously would not apply in respect in such a debtor. Therefore it cannot be said that irrespective of whether a debtor is a debtor within the meaning of the Act or not there is an absolute obligation on a creditor to make an application under Section 4 for the adjustment of his debt and for the adjudication of the question whether the debtor is a debtor under the Act or not. In this view of the matter it is not possible to accept the argument of Mr. Desai.

9. Sub-section (2) of Section 15 of the Act applies to those cases where the debtor himself has led his creditor to believe by his declaration act or omission that he is not a debtor under the Act or that no application was permissible regarding his debt in other words the debtor is stopped from contending that he is a debtor by reason of the debtors own conduct. No such consideration arises in this case. This argument has also therefore no force.

In the result the revision application fails and is dismissed. As there is no appearance on behalf of the opponent there will be no order as to costs. Rule discharged.


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