SHANTABAI Vs. SAVITRIBAI
LAWS(MPH)-1969-11-13
HIGH COURT OF MADHYA PRADESH
Decided on November 12,1969

SHANTABAI Appellant
VERSUS
SAVITRIBAI Respondents

JUDGEMENT

BISHAMBHAR DAYAL C.J - (1.) THIS is a Letters Patent appeal by Mst. Shanta Bai. The facts which have given rise to this appeal are complicated but only the most relevant may be noted as follows. Two brothers Shaligram and Rameshwar were proprietors in the district of Hoshangabad. Shaligram bad two sons, Shrinarain and Sheonarain. Shrinarain left a widow Godavaribai and Sheonarain left Savitribai. Rameshwar had died leaving Kundanbai, his widow, in the life-time of his brother Shaligram. Kundanbai filed a suit for maintenance against her husband's brother Shaligram being Civil Suit No. 26 of 1894. THIS suit was decreed on 30th April 1895 decreeing the claim at Rs. 250 per mensem and this maintenance was declared to be a charge upon all ancestral property of the family. The property consisted of proprietary rights in villages also. From time to time Kundanbai had to file suits for recovery of her maintenance and in one of such suits the amount of maintenance was reduced to Rs. 200 per month with effect from 1st July 1918. As the maintenance fell in arrears, Kundanbai executed two wills but for the purposes of this suit it is enough to refer to the will dated 9th February 1944 by which she bequeathed her arrears of maintenance from the 25th September 1936 to 24th January 1944 in favour of the present plaintiff Smt. Shanta Bai who was her brother's grand-daughter. After executing this will Smt. Kundanbai died on the 22nd July 1944. In 1951 the Madhya Pradesh Abolition of Proprietary Rights Act, 1950 (No. 1 of 1951) came into force by which all liabilities of the proprietors which were made a charge on proprietary rights were to be liquidated and Smt. Savitribai, the widow of Sheonarain who was the only heir left in the family of Shaligram, and Rameshwar filed an application under section 19 of the Abolition Act showing the decretal liability of the maintenance allowance but did not show the arrears of maintenance allowance which had not been decreed but which had already fallen due. THIS application was contested by Smt. Shanta Bai, the present plaintiff-appellant; but she also did not claim the arrears of maintenance which had not till then been decreed and to which she was entitled under the will mentioned above. Thereafter, the present suit for recovery of Rs. 6,364, principal and interest, was filed on 27th September 1954.
(2.) A large number of pleas were taken by the defendant-respondent but we are now dealing with only one of the objections, namely, that the claim not having been proved before the Claims Officer under the Abolition Act stands discharged, and no suit can be decreed on its basis. The trial Court accepted this plea among others and dismissed the suit. The lower appellate Court did not agree with the trial Court on this point, but in second appeal the learned single Judge of this Court has upheld the plea in defence and has upheld the dismissal of the suit on that ground. Before us this was the first contention raised by learned counsel for the appellant and since we have agreed with the learned single Judge on this point for reasons which we will hereafter indicate, it is not necessary to go into the other questious that arise in the case. We, therefore, proceed to consider the provisions of the said Abolition Act bearing upon this question. Section 17 (a) defines a "secured debt" or a "secured claim" as a debt or claim secured by mortgage or charge on proprietary rights which had vested in the State. There is no dispute in the present case that this liability was a charge upon the proprietary rights. By sub-section (b) a "creditor" is defined as a person to whom a secured debt or claim is owed. By sub-section (c) an "excluded debt" is defined. This sub-section (c) has several clauses but for our purposes clause (ii) is relevant. The relevant part of sub-section (c) may be read as follows:- "(c) 'excluded debt' refers to secured claims due in respect of- (i) * * * (ii) any liability in respect of maintenance whether under decree of Court or other wise;" It will be clear from the above quotation that an excluded debt is a species of secured claim defined by sub-section (a) and the contention of learned counsel for the appellant that an excluded debt is a different category from a secured debt is not borne out. Under section 18 Claims Officers have to be appointed and under section 19 the debtor as well as the creditor are required to make an application specifying all the claims against the debtor. In the present case, since it is an admitted fact that the debtors in their application under section 19 did not show this debt, it became the responsibility of the creditor under sub-section (2) of section 19 to file an application making a claim, which admittedly was not done. Section 20 is then important only on account of the fact that it directs that all proceedings pending in civil Courts in relation to secured liabilities shall be stayed. There is no mention in section 20 that only those proceedings will be stayed which relate to liabilities which have been proved before the Claims Officers under section 19. On the contrary, all proceedings relating to "the recovery of any amount in respect of a secured debt" have been stayed. This is an indication that the Act intended to deal with all secured liabilities and not only with those which had been proved under section 19. Section 21 relates to the hearing of those claims and section 22 (i) is very important. It is, therefore, quoted below: - "22. Submission of Claims by creditors.- (i) when the Claims Officer orders that the proceedings shall continue, he shall fix a date not earlier than one month and on or before such date, every creditor shall file a written statement of his claim signed and verified in the manner prescribed by Order 6, rule 15 of the Code of Civil Procedure, 1908 (5 of 1908). Such statement shall be submitted in person or by an agent authorised in writing or by registered post and everyclaim not so submitted shall be deemed for all purposes and all occasions to have been discharged as against such debtor: Provided that if a creditor files a statement of claim within a further period of two months and satisfies the Claims Officer that such creditor was for good and sufficient cause unable to file the same before the date fixed for hearing, the Claims Officer may revive the claim." It is significant that "every claim not so submitted" has been declared for all purposes and all occasions to have been discharged. This obviously cannot refer to those claims which have already been made under section 19 and the sole purpose of this provision is that the claims which have not been made before the Claims Officer are declared as discharged. In this connection the contention of learned counsel for the appellant that the claim of the appellant being an excluded debt need not have been proved is not right because an excluded debt is also a secured debt and the only benefit given to an excluded debt in this Chapter is under section 24 (6) which provides that an excluded debt shall not be reduced as provided by sub-sections (1) to (5) of section 24. This also indicates that even an excluded debt has to be claimed under section 19 and if it is proved to be an excluded debt, the creditor will get the benefit of section 24 (6); but if he does not prove the debt, it will stand discharged. Section 25 deals with priority in the discharge of the creditors whose claims have been found proved by the Claims Officer. Section 26 deals with the distribution of the compensation amount among such creditors. Section 27 then deals with those claims which have remained undischarged after paying off the whole of the compensation amount. This section is quoted below:- "27. Order regarding unpaid amount of claim:-If the Claims Officer finds that the amount of compensation is not sufficient to satisfy the claims determined under section 24, he shall record an order specifying- (a) the amount remaining unpaid in respect of each claim; (b) the name of the creditor to whom it is due; and (c) the particulars of the property remaining encumbered in respect of each claim." It will be seen from this section that if a debt has been proved before the Claims Officer and has not been discharged, the Claims Officer will pass an order specifying the amount which has remained unpaid and the particulars of property over which it is a charge and which has not vested in the Government. This indicates that the secured debts dealt with by the Claims Officer are not those debts alone which are charged over proprietary rights only but include also those debts which are charged both upon proprietary rights and nonproprietary property. If such a debt is not discharged by compensation, then the creditor will get this order specifying the non-proprietary property on which the balance remains charged. Under section 28 the creditor is entitled on an application being made to the civil Court to get a preliminary decree for sale of that property over which the Claims Officer has declared it to be a charge. Sections 29 and 30 deal with court-fees and appeal. Section 31 deals with review. Under section 32 orders passed by the Claims Officer or in appeal have been made final. Section 33 bars the jurisdiction of a civil Court. This section is also important and is quoted below:- "33. Bar against jurisdiction of Courts in certain matters.- The jurisdiction of the civil Courts shall, except as otherwise provided in this Act, be barred in respect of- (a) any matter pending before a Claims Officer; (b) the claim for any secured debt or claim which has been discharged or deemed to have been discharged under section 22; (c) the recovery of any secured debt or claim determined under section 24 except in the manner provided for in section 28." From this section the inference is inevitable that the only remedy in a civil Court left to a secured creditor is to obtain a preliminary decree under section 28 and if the case does not come within the provisions of that section-as the present case before us does not-the creditor has no right to go to a civil Court and the civil Court has no jurisdiction to give any relief to such a creditor. On an analysis of the relevant provisions of the Abolition Act we have no doubt in our mind that the present plaintiff, who has now filed a suit for the recovery of arrears of maintenance from 5th March 1942 to 24th January 1944, should have made a claim before the Claims Officer in proceedings under the Abolition Act and having failed to do so, the liability stands discharged and no decree can be passed in favour of the plaintiff in this suit.
(3.) WE, therefore, see no force in this appeal and it is dismissed. In view of all the circumstances of the case we direct the parties to bear their own costs of this appeal.;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.