JIVANSINHJI TAKHATSINHJI Vs. DEVUBHAI MADHAVSINHJI
HIGH COURT OF GUJARAT
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(1.)This petition raises an interesting question and one of some importance relating to the interpretation of the expression debtor in section 2(6) of the Saurashtra Agricultural Debtors Relief Act 1954 in the context of debts or debt incurred by an undivided Hindu family.
(2.)The facts require to be stated in some detail. Takhatsing and Madhavsing were two girasdars who were members of an undivided Hindu family. On 24/10/1923 they mortgaged some of their properties with the firm of Mehta Dhanji Tejshi who are the second opponent before us. The mortgage was to secure a loan of Rs. 15 0 On 1/04/1927 they created a second mortgage on the same properties in favour Of the same creditors to secure a further advance of Rs. 2275.00. Both the mortgages were created for joint family purpose. After the death of the two brothers an application was made by their sons for adjustment of their debts under the provisions of the Saurashtra Agricultural Debtors Relief Act to be referred to hereafter by us as the Act. That application was registered as No. 304 of 1955. In that application they stated (***) that the liability of the sons of both Takhatsing and Madhavsing was a joint liability. It is to be noted that the liability was not described as a joint and several liability or as a several liability. Two mortgage-creditor firms filed their claims in accordance with the provisions of the Act and set out the names of all the sons of Takhatsing and Madhavsing as debtors describing them as the heirs of Takhatsing and Madhavsing. In the column relating to the details of the debt they described the sons of the two brothers as (***) their debtors.
(3.)Another application for adjustment of debts under the Act was preferred only by the heirs of Takhatsing. That application related to the debts of the three brothers as heirs of Takhatsing. It is not disputed nor is it disputable that the aggregate amount of the debts there shown as Rs. 11 50 in respect of the debts of the sons of Takhatsing as members of an undivided Hindu family. The Court of first instance consolidated the two matters and framed a preliminary issue and the preliminary issue was whether the applicants in the two applications were debtors or not. That they were agriculturists was not in dispute but the dispute was whether the debts of the applicants exceeded Rs. 25 0 on the date of the filing of the two applications to the Board under section 4 of the Act. The trial Court reached the conclusion that the applicants in the two applications could be regarded as debtors within the ambit of the Act and that was on the ground that the aggregate amount of their debts did not exceed Rs. 25 0 In the view we take of the matter it is not necessary in this revision application to refer to one or two other contentions of the debtors which were considered by the Courts below. The trial Court having found that it had jurisdiction to adjust the debts of the applicants made an award and proceeded to take accounts for the purpose of scaling down the debts of the debtors. The creditors appealed against that decision and in appeal the learned District Judge Madhya Saurashtra took the view that the sons of Takhatsing were liable for the entire amount of the mortgages and also for the amount of Rs. 11 50 shown in the second application and therefore their total debts exceeded Rs. 25000.00. Being of that view the learned Judge held that the trial Court had no jurisdiction to adjust the debts of the applicants and the applicants have come to this Court on this revision application.
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