SURAJ PRASAD AND ANOTHER Vs. SMT. BITTI KUNWAR AND ANOTHER
LAWS(ALL)-1965-2-33
HIGH COURT OF ALLAHABAD
Decided on February 17,1965

Suraj Prasad And Another Appellant
VERSUS
Smt. Bitti Kunwar And Another Respondents

JUDGEMENT

C.B. Capoor, J. - (1.)THIS is a decree -holders' appeal. A final decree for a sum of Rs. 2020/5/ - had been passed on 22 -4 -1950, on the foot of a simple mortgage deed dated 22 -9 -1933. When execution was taken out the judgment -debtors raised objection based on the provisions of the U.P. Zamindars Debt Reduction Act. The learned Munsif accepted the aforesaid objection and reduced the amount of the decree to Rs. 656. 44 presumably in accordance with Section 4 (2) of the aforesaid Act. As against the aforesaid order an appeal was preferred by the Appellants and two contentions were raised firstly that the amount of cost could not have been reduced and secondly that the mortgage deed comprised house property also and the reduction should have been in accordance with Sub -section (3) of Section 4 of the aforesaid Act. These contentions did not find favour with the learned lower appellate court and hence the present appeal has been preferred.
(2.)THE first question which arises for consideration is whether the mortgaged property consisted partly of property other than estate. A reference to the mortgage deed in question will indicate that the houses which were in the occupation and possession of the mortgagor were also mortgaged. Section 6 of the U.P.Z.A. and L.R. Act details the consequences that ensue on the vesting of an estate in the State and it would appear from a perusal of that section that the super structure of houses in the possession of the erstwhile Zamindars did not vest in the State. The provisions of Section 9 of the aforesaid Act lead to the same conclusion. That section reads as below:
All wells, trees in abadi, and all buildings situate within the limits of an estate, belonging to or held by an intermediary or tenant or other person, whether residing in the village or not, shall continue to belong to or be held by such intermediary, tenant or person, as the case may be, and the site of the wells or the buildings with the area appurtenant thereto shall be deemed to be settled with him by the State Government on such terms and conditions as may be prescribed.

It is thus crystal clear that on the vesting of estates in the State the buildings belonging to or held by an intermediary barring of course the site thereof did not vest in the State and continue to be the property of the intermediary. There is thus no escape from the conclusion that the mortgaged property charged under the decree in question consisted partly of estate and partly of property other than estate and as such the reduction of the amount due should have been made in accordance with Sub -section (3) of Section 4 of the aforesaid Act and the amount due should have been distributed on the estate and the houses in the possession of the mortgagor, and the case should have been dealt with in accordance with the principles and formula prescribed by the Act.

The other contention raised on behalf of the Appellants is devoid of merits. The contention is that the reduction can be made of the debt only and not of the costs incurred in the suit of thereafter. I he relevant portion of Section 4 Sub -section (3) reads as below: Where the mortgaged property charged under the decree consists partly of estate and partly of property other than estate, the court shall determine the amount due on 1 -7 -1952, and distribute the same on the two properties separately....

It will thus be noticed that it is the amount due on the specified date i.e. 1 -7 -1952, that has to be reduced. The decree under execution was passed on 2 -4 -1950, for a sum of Rs. 2020/5/ - which sum included the costs incurred by the decree -holders in the suit also and it is obvious that the reduction has to be made of the whole amount due and not of the principal money and interest only.

(3.)IN conclusion the appeal is allowed and the decrees of the courts below are set aside and the case is remanded to the court of the first instance with the direction that the amount due should be reduced in accordance with Sub -section (3) of Section 4 of the U.P. Zamindar's Debt Reduction. Act keeping in view the observations made in the foregoing paragraphs of this judgment. The Respondent is not represented by a counsel and no order is made as to costs.
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