HIGH COURT OF KERALA
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(1.) THE short question for decision is these three appeals is whether an assignee of the property of a judgment-debtor is entitled to claim that he could invoke the provisions of the Kerala Agriculturists' Debt relief Act, 11 of 1970. THE third defendant contended that though the decree was passed against the first defendant and the properties of the first defendant, be, along with the second defendant, had obtained an assignment of the rights of the first defendant in the property with an obligation to pay off the decree debt subject to the decree, but before the commencement of Kerala act XI of 1970. THErefore be claims to be an assign of the debtor and as assign he would say that he himself would be a debtor as the term is defined under S. 2 (5) of Act XI of 1970. By reason of such assignment the debt is due from him and he is entitled to pay off such debt. This contention did not find favour with the court below and hence the appeal.
(2.) WE bad occasion to consider this question is our decision in A. S. 407 and 408 of 1972 and we have indicated our views on this question which may be extracted here: "the appellant decree-holder has raised a number of contentions before us and he has urged all of them with considerable force. According to him the persons who had taken assignment of the property of the judgment-debtor cannot seek to discharge the decree-debt in instalments. The right under S. 4 to pay of the decree debt under the provisions of Act 11 of 1970 in 17 equal instalments is conferred on an agriculturist and the right so conferred is to discharge his debt. There is no case that the person who had taken the assignment was not an agriculturist but the contention was that the debt was not his. In this context reference may be made to the definition of the term "debtor",in sub-s. (5) of S. 2 of the Act. That is defined so as to include the heirs, legal representatives and assigns of the debtor. There is a proviso to the definition the requirement under which is that such heirs, legal representatives or assigns also should be agriculturists. It is evident therefore that any assign of a debt of the debtor is himself a debtor within the meaning of the Act. Counsel for the appellants Sri Rajagopal very forcefully argued that any person who takes assignment of a property of a debt will not be an assign within the meaning of the definition of the term debtor under the Act. Normally one associates assignment with rights and not liabilities. Property is transferable unless such transfer is prohibited by law. In the same sense one cannot speak of a transfer of a debt, for a creditor looks up to his debtor to discharge his debt and it is not open to the debtor to make an assignment of his obligations in favour of another so as to bind the creditor. The concept of assignment is positive in nature. There is passing of property from one to another when such assignment is effected. A debt being an obligation there is no question of assigning any property when one "assigns" a debt in the sense that one assigns the obligation under debt. The assignment in that context only means the assignee has been directed by the assignor-debtor to discharge his debt. Such, a direction would be binding on the assignee if it is made for proper consideration. It would be a case where the assign undertakes to discharge the debt of the assignor. Of course, it is not open to the debtor to say that in view of the assignment the creditor shall have no recourse to him, for, any arrangement between himself and the assign would not be binding on the creditor unless he is party to such assignment or he agrees to such assignment later. Therefore assign of a debt is a person who has undertaken to discharge the obligation of the debtor. When a person transfers his property to another and further directs the transferee to discharge his debts the transferee undertakes the obligation to pay off the debts of the transferor and that is exactly what is conceived by the term 'assign' of a debtor. WE find no reason therefore to hold that a person who has taken the property of the debtor with an obligation to discharge the decree-debt is not an assign of the debtor within the meaning of the term in s. 2 (5) of the Kerala Act XI of 1970. If he is assign he is a debtor for the purposes of the Act and that necessarily would mean that what is sought to be discharged is his debt. If he is an agriculturist he can seek to do so under the provisions of the Act, XI of 1970. " In the decision in lyappu Varghese v. Palai Central Bank ltd. 1959 KLT 955 a Division Bench of this Court, following the earlier decision in Rehina Beebi v. The Court Liquidator (The Millions Bank Ltd.)Alleppey 1957 KLT 809 held that a person who had purchased the property of a debtor with a charge on such property is entitled to treat himself as a debtor in regard to such debt and he is entitled to discharge the debt under the Act. But a learned single judge of this Court, Velu Pillai, J. , in the decision in varkey v. Sankaran 1965 KLT 519 has struck a slightly different note. That was a case of an assignee of a mortgagor claiming the benefit of S. 11 of Act 31 of 1958. The question decided was whether he, as an assign of the mortgagor, was entitled to the benefit of the Act. The learned judge referred to the decision in Krishanan Nair v. Abdu 1964 KLT 94 where the question to be decided concerned the right of an assignee of a person who granted a melpattom to relief under S. 11a of the Kerala Agriculturists' Debt Relief Act 31 of 1958. The definition in S. 2 (fff) in that Act introduced by the Amending Act of 1961 read: "melpattomdar, mortgage debtor and creditor shall include the heirs, legal representatives and assigns of the melpattomdar, mortgage debtor and creditor 'respectively. " While the definition indicated that the melpattomdar included his assign it was not so in the case of grantor of melpattom and for that reason the Full Bench found that such grantor was not entitled to the benefit of S. 11a of the Act. For the same reason Velu Pillai, J. found in varkey v. Sankaran 1965 KLT 519 that since S. 2 (fff) did not refer to a mortgagor as including his assign while it referred to the mortgagee as including his assign of a, mortgagor cannot consider himself as a mortgagor so to claim the benefit under the Act. This decision, it is urged by the learned counsel for the respondent here, is said to support his stand. But the term debtor' was defined in S. 2 (fff) to include the assign of a debtor. Even in regard to the mortgagor a contention based on the decision of Velu Pillai, J may not be available now in view of the S. 2 (5) of Act XI of 1970 which defines 'mortgagor' to include the heirs, legal representatives and assigns of the mortgagor. The result is, we allow all these appeals and hold that the appellant is a debtor. Further orders on the application must necessarily be after consideration of other questions relating to the debtor's right to discharge his debt. The lower court is directed to go into these matters and pass necessary orders on the applications. Allowed as above. No costs. Allowed. . .;
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