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Govindbhai Popatbhai Kabaria Vs. Ranchhodbhai Virjibhai Kabaria and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1981)22GLR662
AppellantGovindbhai Popatbhai Kabaria
RespondentRanchhodbhai Virjibhai Kabaria and ors.
Cases ReferredVora Saiyadbhai Kadarbhai v. Saiyad Inlajam H. Sadumia
Excerpt:
- - shah is well-founded......in question and had been jointly holding the agricultural land. according to him, therefore, the joint family of respondents no. 1, 2 and 3 must be considered to be the debtor and it is character of that debtor which should be determined with reference to the total holding of the joint family. in law, the contention which has been raised by mr. shah is well-founded. it has been found by the tribunals below that the decretal debt was owed jointly by respondents no. 1, 2 and 3 to the petitioner. in other words, in respect of the decretal debt, respondents no. 1, 2 and 3 were jointly and severally liable to the petitioner. it has also been found as a fact by the tribunals below that the lands which they were cultivating were shown in the revenue record in the joint names of three.....
Judgment:

S.H. Sheth, J.

1. The petitioner is the creditor. He has filed this petition in which he is challenging the award made by the Debt Settlement Officer under the Gujarat Rural Debtors' Relief Act, 1976 and confirmed by the Appellate Officer:

2. Respondent No. 1, 2 and 3 owned to the petitioner decretal Debt amounting to Rs. 7,500/-. They applied to the Debt Settlement Officer under the Act in which they contended that on the 'appointed day', they were 'marginal farmers' and that, therefore, their debt was extinguished. Respondents Nos. 1, 2 and 3 by executing an agreement of sale had charged their land with repayment of the debt which they owed to the petitioner. The Debt Settlement Officer held that respondents No. 1, 2 and 3 were on the 'appointed day' marginal farmers' and that, therefore, their debt was extinguished. He ordered that the agreement of sale which respondents Nos. 1, 1 and 3 had executed in favour of the petitioner had become unenforceable and therefore, void.

3. The petitioner appealed against that award to the Appellate Officer. He dismissed the appeal and confirmed the award.

4. It is that award which is challenged by the petitioner in this petition.

5. Mr. S.D. Shah who appears on behalf of the petitioner has raised before us two constitutional contentions. His first contention is that Section 3 and Section 14 of the Act are ultra vires Article 19(1)(f) and Article 300A. In Special Civil Application No. 2279 of 1979 decided by us on 16th and 17th December 1980, Vora Saiyadbhai Kadarbhai v. Saiyad Inlajam H. Sadumia XXII G.L.R. 596, we have upheld the constitutional validity of Section 3. We have also upheld the validity of Sub-section (1) of Section 14 and a part of Sub-section (2) of Section 14. We have struck down a part of Sub-section (2) of Section 14 on the ground that it is ultra vires Article 19(1)(0) and 19(1)(g). For the reasons stated in that decision, we turn down the contention raised by Mr, Shah except in respect of a part of Sub-section (2) which we have declared ultra vires Article 19(1)(f) and 19(1)(g). In the instant case, the declaration which we have made in regard to a part of Sub-section (2) of Section 14 is not material.

6. The next constitutional contention which Mr. Shah has raised is that Section 3 read with Section 2(c) in so far as it relates to the decretal liability is ultra vires Article 254 on the ground that it is inconsistent with the Code of Civil Procedure which is existing law. Mr. Shah has advanced no arguments in support of this constitutional contention. We, therefore, reject it.

7. On merits, Mr. Shah has contended that respondents No. 1, 2 and 3 jointly owed to the petitioner the debt in question and had been jointly holding the agricultural land. According to him, therefore, the joint family of respondents No. 1, 2 and 3 must be considered to be the debtor and it is character of that debtor which should be determined with reference to the total holding of the joint family. In law, the contention which has been raised by Mr. Shah is well-founded. It has been found by the tribunals below that the decretal debt was owed jointly by respondents No. 1, 2 and 3 to the petitioner. In other words, in respect of the decretal debt, respondents No. 1, 2 and 3 were jointly and severally liable to the petitioner. It has also been found as a fact by the Tribunals below that the lands which they were cultivating were shown in the revenue record in the joint names of three brothers. Obviously, therefore, they were joint owners. Section 2(i) of the Act defines 'owner' in the following terms:

'owner' in relation to land includes a person holding the land as occupant or landholder as defined in the Boasbay Land Revenue Code, 1879, as in force in the State of Gujarat.

Section 3 (25) of the Bombay Land Revenue Code, 1879, defines the term 'joint holders', or 'joint occupants', in the following terms:

The term 'joint holders', or 'joint occupants', means holders or occupants who hold land as co-sharers, whether, as co-sharers in a family undivided, according to Hindu law or otherwise, and whose shares are not divided by metes and bounds; and where land is held by joint holders or joint occupants, 'holder' or 'occupant', as the case may be, means all of the joint holders or joint occupants.

It is clear, therefore, that respondent Nos. 1, 2 and 3 in whose joint names their lands were shown in the revenue records were the joint owners or joint occupants of their lands. They jointly incurred the debt. Therefore what was necessary to be decided in the instant case was the joint status with reference to the joint ownership of their land.

8. It has been fouad that respondents No. 1, 2 and 3 owned 11 acres 23 gunthes of land which is equivalent to 4 Hectares 63 Ares. In respect of the joint debt which respondents 1, 2 and 3 owed to the petitioner, their joint holding of agricultural land was, therefore, 4 Hectares 63 Ares. The lands are situate at Amreli proper. The Schedule to the Act shows that a 'small fanner' as defined by Section 2(p) is one whose land does not exceed the area of laud shown in the 5th column against his village. So far as Amreli is concerned, the Schedule shows that a 'small farmer' is one who owns 3.03 Hectares or less-not being less then 1-52 Hectares. In view of this fact, it is clear that respondents No. 1, 2 and 3 had been holding on the 'appointed day' 4.63 H.A. of agricultural land. It exceeded the ceiling prescribed in the Schedule for one to become a 'small farmer'. Respondents No. 1, 2 and 3 were, therefore, not 'small farmer' within the meaning of that expression given in the Act-much less were they 'marginal farmer' as found by the Debt Settlement Officer and the Appellate Officer.

9. The Tribunals below were in error in considering the decretal debt of respondents 1, 2 and 3 jointly and in artificially dividing on paper their shares in agricultural land for deciding their status, whether they were on the 'appointed day' marginal farmers or small fanners. In case of a joint family, it is the joint family which is the 'debtor' and it is the land of the joint family which must determine the status of the joint family. In case of joint debtors, they constitute a unit and it is their joint holding of agricultural land which must be taken into account for the purpose of determining their status-whether they were marginal farmers or small farmers on the appointed day.

10. We may, however, observe that different considerations will prevail where lands are owned jointly but holders are not joint holders, or where they are joint debtors who do not own lands jointly. None of these alternatives is required to be considered in this case.

11. It has, however, been pointed out to us that the impugned award shows that respondents No. 1, 2 and Shad been cultivating land separately. The lands appeared in the revenue records in their joint names. They were, therefore, joint owners or joint occupants. If they had been cultivating separately different portions of lands, it appears that they were doing so for the sake of mere convenience. There is no evidence to show that there was any partition between them. It is also necessary to remember that the debt which they owed is the joint debt. Whether such a joint debt should be extinguished or scaled down cannot be decided by taking into account undivided individual shares of joint holders.

12. In the result, we find that since respondents 1, 2 and 3 held agricultural land which exceeded the ceiling prescribed by the Act for a small farmer, they were not entitled to make the present application for adjustment of their debts. In the result, we allow the petition, quash and set aside the impugned award and dismiss the Debt Adjustment Application made by respondents No. 1, 2 and 3, Rule is made absolute with no order as to costs.


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