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Hrishikesh Banerjee and ors. Vs. Sushil Chandra Moulik - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 20 of 1950
Judge
Reported inAIR1957Cal211,60CWN1058
ActsEvidence Act, 1872 - Section 35; ;Debt Laws; ;Bengal Agricultural Debtors Act, 1936 - Sections 2(4), 13(2), 18, 19(2), 21, 22(1) and 36(2); Bengal Agricultural Debtors Rules - Rules 95, 100, 101 and 144; ;Majority Act, 1875 - Section 3; ;Code of Civil Procedure (CPC) , 1908 - Order 32, Rule 23; ;Transfer of Property Act, 1882 - Section 67
AppellantHrishikesh Banerjee and ors.
RespondentSushil Chandra Moulik
Appellant AdvocateBankim Chandra Banerjee, ;Nitya Ranjan Biswas, ;Akshoy Kumar Mukherjee and ;Benoy Behari Sen, Advs.
Respondent AdvocateAbinath Chandra Ghose, ;Amaresh Chandra Roy and ;Nirmal Chandra Chakravartty, Advs.
DispositionAppeal partly allowed
Cases ReferredRadha Nath v. Nagendra Nath
Excerpt:
- p.n. mookerjee, j.1. on may 29, 1935, the defendant-respondent sushil chandra moulik and his brother suresh chandra moulik, since deceased, borrowed a sum of rs. 7,000/- from the plaintiff appellants' father late krishnadas banerjee on a first mortgage of their premises no. 32, mahesh barik lane, baliaghata, 24-parganas. the mortgage deed (ex. 1 (a)) provided, inter alia, for payment of interest at the rate of 7 1/2 per cent, per annum compound with half-yearly rests and the stipulated date of re-payment was may 29, 1936.2. on the back of the mortgage bond (ex. 1 (a)) there were several endorsements of payment of interest totalling rs. 2,229-8-0 and these were duly given credit in the plaint which laid the claim at rs. 11,508/- on account of the outstanding principal and interest. the.....
Judgment:

P.N. Mookerjee, J.

1. On May 29, 1935, the defendant-respondent Sushil Chandra Moulik and his brother Suresh Chandra Moulik, since deceased, borrowed a sum of Rs. 7,000/- from the plaintiff appellants' father late Krishnadas Banerjee on a first mortgage of their premises No. 32, Mahesh Barik Lane, Baliaghata, 24-Parganas. The mortgage deed (Ex. 1 (a)) provided, inter alia, for payment of interest at the rate of 7 1/2 per cent, per annum compound with half-yearly rests and the stipulated date of re-payment was May 29, 1936.

2. On the back of the mortgage bond (Ex. 1 (a)) there were several endorsements of payment of interest totalling Rs. 2,229-8-0 and these were duly given credit in the plaint which laid the claim at Rs. 11,508/- on account of the outstanding principal and interest. The plaintiffs prayed for the usual mortgage decrees, preliminary, final and personal, and for costs.

3. The suit was contested by the defendant Sushil Chandra Moulik who claimed to be the 16 annas owner of the mortgaged property by virtue of a kobala or deed of sale, dated April 20, 1937, from his brother Suresh Chandra Moulik and his defence, inter alia, was (i) that the suit was barred by reason of certain proceedings and an award under the Bengal Agricultural Debtors Act and (ii) that further payments to the tune of Rs. 1,900/-made by him in respect of the above disputed mortgage had not been shown in the plaint and the defendant was entitled to credit for the same. Details of these defences will be given and discussed by us in the course of this judgment but we may at once indicate here that the main question which arises for our consideration in this appeal relates to the effect of the Bengal Agricultural Debtors Act proceedings, referred to in the written statement, on this mortgage Suit.

4. Due execution of the mortgage bond is admitted. Its attestation also is admitted, but the defendant has succeeded in showing that he included this debt in his application or statement of debt (Ex. 1) before the Debt Settlement Board, the proceedings in connection with which were originally started before the Debt Settlement Board of Tantiband and, later on, transferred to the Sujanagar Debt Settlement Board as Case No. T 59 of 1942 and that, eventually, there was an order made by the Board under Section 13(2) of the Bengal Agricultural Debtors Act in the Said proceedings, fixing the maximum limit of the recoverable amount under this debt at Rs. 3,000/-, of which a total sum of Rs. 1,900/- was paid by the defendant upto the date of the filing of his written statement.

5. It is necessary to state here that the present defendant Sushil Chandra Moulik borrowed another sum of Rs. 2,000/- on a second mortgage of the self-same property (including his brother's moiety share, acquired by him as aforesaid) under a bond (Ex. 1) executed in favour of plaintiff No. 1 Hrishikesh Banerjee alone on April 20, 1937, whichalso was the subject-matter of the above proceedings under the Bengal Agricultural Debtors Act andfor which the upward limit of Rs. 1,000/- was fixed as the recoverable amount under the above orderunder Section 13 (2), to which reference has been made,above, and, out of the total recoverable amount ofRs. 3,000/- plus Rs. 1,000/-, equal to Rs. 4,000/-,on the above two mortgages (Exs. 1 and 1 (a)) underthe aforesaid order under Section 13 (2), the debtor defendant Sushil Chandra Moulik had paid a sum ofRs. 2,900/- which included the above payment ofRs. 1,900/- in respect of the first bond (Ex. 1 (a)),as mentioned above in the preceding paragraph. Itmay be mentioned also that a separate suit (TitleSuit No. 115 of 1947) was brought by Hrishikeshon his second mortgage bond, mentioned above, butthe same was dismissed by the learned SubordinateJudge and there is no appeal from that decision.

6. The payment of Rs. 2,900/-, mentioned above, appears to have, been made by Postal, Money Order, Postal Insurance and on one occasion by a cheque within a registered cover but in each case the addressee was the plaintiff No. 1 Hrishikesh Banerjee alone and the cheque also appears to have been drawn only in his favour. Hrishikesh has admitted receipt of the moneys, but he claims to have appropriated the whole of the above sum of Rs. 2,900/-, towards his separate mortgage loan (Ex. 1), dated April 20, 1937. The other plaintiffs have denied receipt of any portion of the above amount of Rs. 2,900/-.

7. The proceeding under the Bengal Agricultural Debtors Act started sometime in the year 1942. It was originally initiated by a creditor Hemlata Debi of the present defendant Sushil Chandra Moulik before the Tantiband Debt Settlement Board. Later on, it was transferred to the Sujanagar Debt Settlement Board. Of the creditor Hemlata's application, notice appears to have been served, upon the debtor Sushil Chandra Moulik and in pursuance thereof, he filed his statement of debts (Ex. I) before the Sujanagar Debt Settlement Board on September 10, 1942. That was done in the form of an application for settlement of debts (Vide Rule 31, The Bengal Agricultural Debtors Rules) and the debts mentioned in the said application or statement of debts (Ex. I) included the present disputed mortgage debt which was admitted to be outstanding to the extent of Rs. 3,000/-. Of this application or statement of debts of the debtor Sushil Chandra Moulik, notices appear to have been issued to the present plaintiffs and, upon their failure to appear on the date fixed, namely, November 5, 1942, the recoverable debt under the present disputed mortgage bond was declared by the Sujanagar Debt Settlement Board under Section 13 (2) of the Bengal Agricultural Debtors Act at the amount, admitted by the debtor, namely, Rs. 3,000/- by an order of that date. Of this order, notices appear to have been issued to the present plaintiffs, but, they having failed to appear at any Subsequent stage also, the case was eventually sent to the. Pabna Sadr Special Board in September, 1944, recommending grant of a certificate under Section 21 of the Act for re-payment of the debts due to the present plaintiffs by instalments, extending over 8 to 10 years. The proceedings appear to have virtually terminated with the Section 21 certificate of the Pabna Special Debt Settlement Board which is Ex. F in the present case andwhich is dated February 17, 1945, followed by the Robokari, Ext. H, bearing the date March 20, 1945. In the Robokari, Ex, H, there is reference to an award which has given rise to some arguments and as the certificates also will be relevant in this connection, we propose to set out immediately below the terms of the said two documents.

8. The certificate under Section 21 of the Bengal Agricultural Debtors Act which is Ex. F in the present case runs as follows:

'Form No. IX.

Certificate under Section 21 of the Bengal Agricultural Debtors Act, 1935.

FirstParty--Debtor

Namesof both parties

SecondParty-- Creditor

NamesName offather or husbandResidenceNamesName offather or husbandResidence

SushilChandra Moulik.Late KailashChandra Moulik.Tantibanda.1. HrishikeshBandopadhya and others.LateKrishnadas Bandopadhya.No. 16,Garpar Road, Post Office, Manicktala, Calcutta.

Whereas during the proceedings No. T 29/12 of 1954 under the Bengal Agricultural Debtors Act, 1935, in the matter of the under-mentioned debts claimed to be owing from the first party, the second party has refused an offer made by the first party which in the opinion of this Board was a fair offerand such as ought reasonably to have been accepted the Board hereby grants the certificate under Section 21 of the Bengal Agricultural Debtors Act, 1935.

2. The second party submitted the under-mentioned particulars in respect of his claim.

Natureof the debt (with description of documents, etc.)Principalamount of debt.Rate of interest.Totalamount of claim.Remarks.

MortgageRs. 4,000/-.....Under S. 13 (2)

3. It is hereby ordered under Section 21 of the said Act that if no award is made in respect of other debts of the first party, the period during which the second party is debarred from executing any decree in respect of the aforementioned debts shall be up to the year 1361 B. S. from the date of this certificate Date 17-2-45.'

9. The Bobakari, Ext. H, is in these terms:

'(Pabna SadarDebt Settlement Board,District Pabna).Form No. 35. No. 29, date - 2.RobakariSubject--Publication of award.Case No. T-29/12 of 1944.' It is being required under Section 48 of the Bengal Agricultural Debtors Act, 1935, read with Rule No. 135 of the Rules framed under the said Act that the award made in the above case should be published by affixing the same in the First Court of the Munsif of the District of Pabna.

It is ordered that a copy of the award together with a copy of this Robakari be Sent to the First Munsif of the District of Pabna with this request that he will be obliged by causing the same to be posted on the notice-board of his Court on or before 25-3-1945, and by sending information thereof.'

10. The defendant contends that the present suit is barred under the provisions of the Bengal Agricultural Debtors Act by reason of the aforesaid proceedings and the certificate Ext. F and the award, referred to in the Bobakari Ext. H. The plaintiffs challenge the entire Bengal Agricultural Debtors Act proceedings including the so-called award and the certificate as wholly void and without jurisdiction. In the alternative, they assert that nothing of the saidproceedings is binding upon plaintiffs No. 3 and 4 Kamalesh Banerjee and Amaresh Banerjee, who, according to them, were minors at the date of the Service of the notices of the said proceedings which were started and continued against them apparently as major parties.

11. The learned Subordinate Judge has reject-ad the plaintiffs' contention that the above Bengal Agricultural Debtors Act proceedings were wholly void and without jurisdiction. He has also held that the said proceedings and the award mentioned by the defendant are binding on all the plaintiffs, although two of them Kamalesh and Amaresh were, in his opinion, minors at all material times. He has in this connection, principally relied upon Rule 95 of the Bengal Agricultural Debtors (Act) Rules. The learned Subordinate Judge has further found that the defendant made additional payment to the extent of Rs. 2,900/- as alleged by him. He has, accordingly, dismissed the plaintiffs suit and the propriety of his decision is challenged by the plaintiffs in this appeal. - (12) The trial court's finding that the plaintiffs Nos. 3 and 4 were minors, well below the age of 18 years when the notices of the Bengal Agricultural Debtors Act proceedings appear to have been served upon them, has been subjected to much criticism on behalf of the respondent. In our opinion, however, that criticism is entirely unfounded and there are enough materials on the record which support that finding of the learned Subordinate Judge. The learned Subordinate Judge has relied mainly in this connection upon the evidence of the plaintiffs' mother Sm. Ava Banerjee. He has examined this evidence with meticulous care. He has explained the apparent inconsistencies in this evidence and his explanation that these inconsistencies were apparently due to some confusion into which the lady fell in course ofher long and searching cross-examination seems to be quite reasonable and eminently acceptable. The lady's evidence on the question of age of plaintiffs Nos. 3 and 4 is well supported by the Matriculation Certificate, Ext. 5, of plaintiff No. 3 which is clearly admissible under Section 35 of the Indian Evidence Act and which we do not find sufficient reason to discard or disbelieve in the circumstances of the present case. Strong reliance was placed by the defendant respondent upon the statement of age of plaintiff No. 3 in his affidavit dated 13-9-1948, filed in the present suit, but, in our opinion, that statement was a clerical error, as explained in the said plaintiffs subsequent affidavit, dated 21-12-1948. We do not, therefore, attach any importance to the wrong statement of age in the plaintiff No. 3's said affidavit, dated 13-9-1948, and we accept the ages of plaintiffs Nos. 3 and 4 as found by the learned Subordinate Judge and we hold that they were minors, below the age of 18 years, at the relevant dates of the proceedings under the Bengal Agricultural Debtors Act.

13. Before proceeding further, it is necessary to clear up one matter. In the court below it appears to have been assumed by the learned Subordinate Judge that the so-called award of the Debt Settlement Board in the case, referred to in the written statement, was a valid award covering, inter alia, the present disputed mortgage debt. We are, however, far from satisfied that such was the actual position. The award is not before the court. All we have here is an order (Ext. E) under Section 13(2) of the Bengal Agricultural Debtors Act which certainly relates to the above debt and a certificate (Ext. F) under Section 21 of the Act, passed upon a determination of the said debt at Rs. 3,000/- under Section 18(2) of the Act, prohibiting execution of any decree in respect thereof up-to the 1361 B. S. The Robakari, Ext. H, no doubt mentions an award but that award appears to be invalid in law and it is not also clear whether it was in respect of the present mortgage debt or some other debt of the defendant debtor. The confusion has not been cleared up by the defendant and it will not be proper to hold on the materials before us, that there was in law any valid award in respect of the disputed mortgage debt. We shall presently enumerate our reasons for this view.

14. Of the Bengal Agricultural Debtors Act proceedings, we have on the record the order sheet Ext. G, the debtor's statement of debts Ext. 1 under Section 13(1) of the Act, the Board's order Ext. E under Section 13(2), the certificate Ext. F under Section 21 and the Robakari Ext. H under Section 48 of the Act. From these documents, read in the light of the defendant's oral evidence, the over-all position seems to be that one Sm. Hemlata Debi, claiming to be a creditor of the present defendant, applied before the Tantiband Debt Settlement Board for settlement of the defendant debtor's debt, that the said application was transferred to the Sujanagar Debt Settlement Board which issued notices on the debtor to submit his statement of debts and, thereupon, the debtor appeared and filed his statement of debts, Ext. I, mentioning, inter alia, the present suit mortgage and stating the outstanding debt thereunder to be Rs. 3,000/-. Then notices were issued on the present plaintiffs to file their statement of debts and upon their failure to appear or comply with the said notices, the Board declared the present mortgage debt at Rs. 3,000/-and made the usual order in those terms under Section 13(2)in Form No. VII as prescribed by the Act and, after the statutory publication of the said order (vide Section 48) and some further proceedings, the records were transmitted to the Pabna Sadar Special Board for grant of a certificate under Section 21 of the Act and, eventually, on 17-2-1945, this certificate was grant-ed in terms appearing in the document Ext. F which has been fully set out above and it was followed by the Robakari, Ext. H.

15. Except for the mention of an award in the Robakari, Ext. H, which receives some confirmation from the Order Sheet Ext. G, recording certain orders of the Sujanagar Debt Settlement Board from after the publication of the earlier order under Section 13(2), the matter appears to be quite simple and no question of any award relating to the present mortgage debt at all arises. The above orders, however, and the Robakari definitely refer to some award. The records do not show that any award was made by the Special Board, but they do show at the same time that some award was made by the Sujanagar Board which was registered and eventually published under the Robakari Ext. H. In spite, however, of there being some indication to the contrary, we are not prepared to hold that this award, whatever it was, was in respect of the disputed mortgage (Ext. 1(a)). Sujanagar Board's recommendation for action against the present plaintiffs under Section 21 of the Act (vide the order sheet Ext. G) and the making of the certificate, Ext. F, in terms appearing in the said document and upon the footing only of non-acceptance of the debtor's fair offer by the creditors concerned, namely, the present plaintiffs, without reference to any award, would obviously militate against the existence of any award in respect of the plain-tiffs' dues. The Act does not, in our opinion, contemplate any action under Section 21 of the Act in respect of a debt for which an award has been made. This is clear from the section itself which prescribes the penal order only in cases where the debt could not be settled due to intransigence of the creditor party and refers to awards for other debts which are given preference in the matter of recovery or realisation.

16. Even assuming that the award in question did actually include the present disputed mortgage debt, we do not think that the award was at all valid in law. Admittedly, the present plaintiffs did not agree to any amicable Settlement nor can it be contended in this case that there was any agreement for amicable settlement between the defendant debtor and any creditor or creditors to whom at least 40 per cent of total debts of the defendants was owing at the time. Clearly, therefore, there was no case at any stage for the application of either Clause (a) or Clause (b) of Section 19(1) of the Act in respect of the present disputed mortgage debt and necessarily Section 19(2) would be excluded. Obviously also this was not a case under Section 22(1) so as to attract Section 22(6) of the Act. The Board, therefore, had no power to make any award in respect of the present mortgage debt, as award under the definition clause Section 2(4), to quote its relevant part, means 'an award made by a Board under Sub-section (2) of Section 19 or Sub-section (6) of Section 22.' The award, therefore, if any, in respect of the plaintiffs' present mortgage would be null and void and wholly without jurisdiction and may be disregarded by the Civil Court.

17. We are supported in the above view by the Bench decision of this Court in the case of PromodoKumar v. Hirendra Nath : AIR1952Cal232 with which we respectfully agree except as to certain observations which were not material for purposes of that decision and which might carry a wrong impression as to the scope and effect of Sections 13(2), 18(2), and 36(a) of the Bengal Agricultural Debtors Act. These observations which did not really affect thedecision in the case cited and were thus in the nature of obiter dicta are to be found in certain passages at pp. 234 and 235 of the Report which may be quoted as hereunder, namely ;

(i) 'The scheme of the Act seems to me to be that if a creditor fails to comply with a notice under Section 13(1), tile Board may declare the amount admitted by the debtor to be the amount due. 'In such a case, there is no need to determine the amount of the debt under Section 18.' If the creditor agrees to have the amount so declared settled for the purposes of payment, it may be that the Board will be entitled to include it in an award. But if the creditor does not agree, as in this case the creditor does not, it seems to me that the only order which the Board can make is a penal order under Section 21 by which it can debar the creditor from recovering the debt for a period not exceeding ten years. 'In the absence of an agreement by the creditor, the Board, it appears to me, cannot deal further with a debt declared under Section 13 (2) except by way of making an order under Section 21'

and

(ii) 'It will be noticed that all that the section says is that the debt due from the debtor shall bedeemed to be the amount stated in the statement of debt for the purposes of the Act, and the section proceeds to say that such order shall not be questioned in any civil court or in any manner other than that provided in this Act. The section in my view means that the amount declared by the Board under this section shall be deemed to be the amount payable by the debtor for the purposes of this special Act, 'but for no other purpose', and that what the creditors prevented from questioning is the order that for the purposes of the Act the amount admitted by the debtor shall be deemed to be the amount really due. The prohibition does not extend beyond those limits, and I as read the section, it is not an absolute prohibition debarring the creditor from asserting a higher right against the debtor in any circumstances.'

18. In the quoted extracts, we have underlined (here in ' ') two sentences and a phrase which do not seem to be quite accurate and which are liable to give a wrong impression as to the scheme of the Act and as to the scope and effect of an order under Section 13 (2).

19. The earlier passage, quoted above, clearly recognises that an order under Section 13(2) may be followed by an order under Section 21. It overlooks, however, that, for an order under this latter section, a determination of the debt under Section 18 is necessary. This is clear from the wording of Clause (2) of this latter section. It will, therefore, be not quite correct to say that, where a debt is cleared under Section 13(2), 'there is no need to determine its amount under Section 18.'

20. We do not think also that it will, be strictly correct to say that

'the amount, declared by the Board under this Section (Section 13(2)), shall be deemed to be the amount payable by the debtor for the purposes of this special Act but for no other purpose,'

if it is meant thereby that it has no effect outside the Bengal Agricultural Debtors Act or in proceedings not taken under the said special Act. This appears from reading of Section 36(a) which is one of the sections, referred to in the judgment cited (vide page 235, col. 2), and which provides inter alia that

'any decree of a civil court passed after the date of an application under Section 8 shall be a nullity in so far as it is inconsistent with any order passed by the Board under Sub-section (2) of Section 13.'

Thus, in effect, the civil court's power to pass an effective decree after the date of an application under Section 8 is taken away to some extent in that the decree will be ineffective to the extent that it contravenes the order under Section 13(2). This, of course, will not affect a decree, passed before the date of an application under Section 8. That was actually the case before their Lordships in : AIR1952Cal232 and the order under Section 13(2) was rightly held to be ineffective in the particular facts of that case. We may point out, further, that, as already stated above by us, the order under Section 13(2) may be followed by a determination of the debt under Section 18(2) and in such determination the order under Section 13(2) is normally the determining factor as to the maximum limit of the amount recoverable except where there is an effective Civil Court decree, indicating the contrary, and the determination so made will be binding for all purposes (vide Section 18(4)). In the ultimate analysis then, the declaration under Section 13(2) may well affect the amount, actually recoverable under a particular debt, and its effect may well extend beyond the Board's proceedings. It is unnecessary to continue this discussion but, before concluding, we ought to make it clear that cases may arise where the order under Section 13(2) may be rendered ineffective or infructuous by reason of a determination Under Section 18, of the existence of a Civil Court decree, not coming within the mischief of Section 36(2), and nothing in this judgment should be taken to imply the contrary.

21. It follows from what we have stated above that the present appeal must be decided without reference to any award but upon the footing that there was a proceeding under the Bengal Agricultural Debtors Act in respect of the present mortgage debt (Ext. 1(a)) in which the above order under Section 13(2), followed by a determination under Section 18(2) of the Act and a certificate under Section 21, was made. On the materials before the Court, it will not be proper to proceed on any other basis.

22. Bearing the above in mind, we shall deal with the rights of the parties arid their respective contentions. It may be stated, however, that the non-existence of the award would not make much practical difference in the present case in view of the order under Section 13(2) and the determination of the debt under Section 18(2) of the Act.

23. The proceedings before the Board have been attacked on three grounds, namely, (i) that, the total debt mentioned in the debtor's application exceeded Rs. 5,000/- and, there being nothing to show that the requisite Collector's sanction (vide Rule 144) was obtained by the Board to deal with the application, the entire proceedings were void; (ii) that the notices under the Act were not served and, accordingly, neither the order under Section 13 (2) nor the determination of the debt under Section 18(2) nor the certificate under Section 21 would affect the powers of the Civil Court; and (iii) that, in any event, the said order or determination or certificate would not be binding on the minor plaintiffs Kamalesh and Amaresh, whose minority was not shown or disclosed before the Board and who were proceeded against as major parties throughout the entire proceedings before it.

24. As to the first ground the factual position in the present case is not very clear. It must be remembered however, that no such point was raised in the court below and as the materials before us do not warrant a positive finding that there was no Sanction obtained from the Collector and as the debts, mentioned in the relevant column of the debtor's application or statement of debts (Ext. I), even according to the decision reported in the case of Gostha Behari Dutt v. Palaram Pal, : AIR1950Cal102 , upon which the appellants relied, do not exceed Rs. 5,000/-, we are unable to give effect to this contention of the appellants.

25. On the question of service also, the finding of the learned Subordinate Judge in the respondent's favour must be accepted. In the circumstances of this case, the different entires in the Board's order-sheet (Ext. G) may be taken as sufficient evidence of the fact of service and, once that is done, the regularity of the service upon the persons, mentioned in the notices, that is, upon the present plaintiffs as majors as described in the said notices, may be presumed under Section 114 of the Indian Evidence Act, (vide Gaibanda Loan Office v. Mt. Satyadunnessa Khatun : AIR1943Cal114 . We would, therefore, reject the appellants' second contention too.

26. The appeal, however, must succeed in part on the third ground urged by the appellants. We have already found that the two plaintiffs Kamalesh and Amaresh were minors at the relevant dates. They were, therefore, in the eye of law, no parties to the Bengal Agricultural Debtors Act proceedings where they were shown and actually proceeded against as major throughout. In any event, there was no proper representation of them in the said proceedings and no proper service of the notices, required under the said Act; upon them so as to make the said proceedings binding upon them and thereby oust the jurisdiction of the Civil Court. So far as they are concerned, those proceedings must be treated as a nullity.

27. It was urged before us on behalf of the respondent that although the said two plaintiffs Nos. 3 and 4 might have been minors for purposes of proceedings before the ordinary Tribunals of the land, they were not minors for purposes of the proceedings before the Board which was a Special Tribunal under the Bengal Agricultural Debtors Act. We are unable to accept this argument. The Bengal Agricultural Debtors Act contains no special definition of 'minor''. The Indian Majority Act will, therefore, apply to proceedings under the Bengal Agricultural Debtors Act, and judged by the test, laid down in the relevant section (Section 3) of the said Act, plaintiffs Nos. 3 and 4 must be held to have been minors at the relevant dates of the Board's proceedings.

28. It was next urged by the learned Advocate for the respondent Mr. Ghose that, unlike the ordinary law of the land (vide in this connection Order XXXII of the Code of Civil Procedure), the Bengal Agricultural Debtors Act did not require representation of the minor by a competent adult person in allcases and the minor, if sufficiently above the age ofdiscretion which need' not necessarily be as high as18 years, may well represent himself in proceedingsunder the Act and no representation by a guardian ornext friend was necessary. On this part of the case,Mr. Ghose relied, in particular, upon Rule 95 of theAct and, about the capacity of the minor to actwhere he was above the age of discretion, he citedthe analogy of the Criminal Law where a minor abovea certain age may be guilty of an offence and maydefend himself at the trial. We do not think, however, that the above analogy of the Criminal Law isat all relevant. There the legislature has made special provision for that purpose, but there is no such provision in the Bengal Agricultural Debtors Act. Rule95, on the other hand, clearly contemplates representation of a minor party before the Board by a guardian. In our opinion, this Rule does not, in the least,support Mr. Ghose's submission. It is, on the otherhand, clearly against has contention. It proceedsupon the fooling that a minor has to be represented by some person (guardian) and merely lays downwho would be competent to act as such guardian;and, further, that even a legal practitioner may beeligible for the purpose. This is confirmed byRule 100 and also by Rule 101 which clearly envisagethe minor's representation by some guardian asaforesaid. We hold, therefore, that a minor beforethe Board must be represented by a guardian andwithout such representation, he cannot be held tobe a party before the Board and neither theproceedings before it nor any order, passedtherein will bind him. Plaintiffs Nos. 3 and 4,therefore, will not be affected in any way by theBengal Agricultural Debtors Act proceedings, referred to in the Written Statement.

29. At any rate, the notices of the said Bengal Agricultural Debtors Act proceedings having been served upon the said plaintiffs Nos. 3 and 4 themselves, when they were minors in law, the said proceedings can have no legal effect as against those plaintiffs. In the above state of things, neither the order under Section 13 (2) nor the determination of debt under Section 18 (2) nor the certificate under Section 21 would be binding against them. The above Bengal Agricultural Debtors Act proceedings again were not pending at the date of the present suit when Kamalesh had attained majority and, in the course of which, Amaresh also attained majority. In these circumstances, the Civil Court will not be hampered in any way in dealing with the disputed mortgage debt (Vide Ex. 1 (a)), so far as the above plaintiffs Nos. 3 and 4 are concerned.

30. As regards plaintiffs Nos. 1 and 2, however, the position would be materially different and they would be bound by the Section 13 (2) order and the determination under Section 18 (2) as also by the certificate under Section 21 and the effect will be that they cannot claim a decree for more than Rs. 3,000/- in respect of the disputed mortgage (Ex. 1 (a)) in view of the said order (Ex. E) under Section 13 (2) and the determination of the debt under Section 18 (2) although the certificate (Ex. F) under Section 21 would not really affect the position particularly when it only debars execution of the decree until 1361 B. S. which time has now expired.

31. The inevitable result thus would be that the disputed mortgage debt, Ex. 1 (a), will have to be apportioned between the plaintiffs upon thefooting that plaintiffs Nos. 1 and 2 will be entitled to their hall share of it, taking it to be Rs. 3,000/-in 16 annas, and plaintiffs Nos. 3 and 4 will get the remaining hall share on the basis of the claim amount in the mortgage suit, namely, Rs. 11,508/-. The security, however, cannot be split up in law and the plaintiffs will be entitled to proceed against the entire mortgaged property for realisation of the total decretal amount. That will be sufficient compliance with the law of integrity of mortgage debts in the facts and circumstances of the present case; vide in this connection Radha Nath v. Nagendra Nath : AIR1931Cal806 .

32. It must be remembered also that, out of the above mortgage debt, a sum of Rs. 1,900/- has been paid by the defendant since the passing of the order under Section 13 (2) of the Bengal Agricultural Debtors Act. It is true that this amount was actually received by the plaintiff No. 1 Hrishikesh alone. It is true also that he claims to have appropriated it towards his separate second mortgage of the year 1937 (Vide Ex. 1) and the other plaintiffs have denied receipt of any portion of it. But, in the circumstances of this case and having regard to the materials, actually before us, which show, inter alia, that the previous payments on account of the bond in suit used to be made by the defendant to one or other of the plaintiffs, we are inclined to give the defendant full credit in respect of this payment of Rs. 1,900/- against all the plaintiffs and to debit the same against the total sum, to which the plaintiffs have been found entitled upon the bond in suit (Ex. 1 (a) ) in the preceding paragraph. We would also give the plaintiffs some costs of the present proceedings.

33. In the result, then, there will be a preliminary mortgage decree for Rs. 5,570/- including costs against the defendant, out of which plaintiffs NOS. 1 and 2 will get Rs. 285/- each and plaintiffs Nos. 3 and 4 will get Rs. 2,500/- each, but, in the facts and circumstances of this case, we would not allow any interest pendente life or on the decretal amount as that would contravene the provisions of the Bengal Money-lenders Act. We would also grant the defendant three instalments to pay the decretal amount, namely, Rs. 1,570/- by the end of December 1956; a further sum of Rs. 2,000/- by the end of December, 1957, and the balance of Rs. 2,000/- by the end of December, 1958. The preliminary decree will make provision for a final decree in accordance with the terms of Section 34 of the Bengal Money-lenders Act and will reserve to the plaintiffs the usual liberty of applying for a personal decree in accordance with law in case of deficiency of sale proceeds of the mortgaged property.

34. As to the amount of Rs. 1,900/-, receivedby plaintiff No. 1 as stated above, of which duecredit has been given by us to the defendant againstall the plaintiffs, the rights of the plaintiffs inter sewill not be affected by anything said in this judgment and they will be entitled to have those rightsadjusted, if not already done, either amicably or bya separate suit.

35. The appeal thus succeeds in part and it is allowed as above. The decree of dismissal, passed by the trial Court, is set aside and in lieu thereof a decree is passed in favour of the plaintiffs on terms, indicated above, and their suit succeeds tothat extent. There will be no order as to costs except as stated above.

36. Let a comprehensive preliminary decree be drawn up by the Court below in the light of the directions, given above.

Renupada Mukherjee, J.

37. I agree.


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