KESHAVLAL GIRDHARLAL GANDHI Vs. PATEL VITHALBHAI SHANKARBHAI DECEASED HIS HEIRS BAI SURAJ

JUDGEMENT

(1.) This group of eight Civil Revision Applications involves one or the other of the two important questions under the Agricultural Debtors Relief Act as under:--

(2.) To appreciate the contentions urged before us it would be proper to consider at the outset the scheme of the Act. The preamble of the Act states that the Act is meant to give relief to agricultural debtors and for certain other purposes specified therein. Section 2(4) defines `debt. Section 2(5) defines a `debtor to mean an individual person or an undivided Hindu family as unit. The debtors definition in section 2 read with sec. 11 shows that he must be a small agriculturist whose debts do not exceed Rs. 15 0 The chapter 11 of the Act contains secs. 4 to 46d of the Act, which deal with the procedure for adjustment of debts. Section 4(1) provides that any debtor ordinarily residing in any local area for which a Board was established under sec. 4 of the repealed Act on or after the 1st February 1947 or his creditor may make an application before 1st August 1947 to the Court for the adjustment of his debts. Section 11 provides that no application under sections 4 or 8 shall be entertained by the Court on behalf of or in respect of any debtor unless the total amount of debts due from him on the date of the application is not more than Rs. 15 0 Section 12 lays down that an application for adjustment of debts under sec. 4 or an application for recording a settlement under sec. 8 shall not be withdrawn without the leave of the Court. Section 13 provides for consolidation of the applications. Section 15 provides that every debt due from a debtor in respect of which no application has been made under sec. 4 within the period specified or in respect of which no application for recording a settlement is made or in respect of which an application made to the Court is withdrawn and no fresh application is made under sec. 4 and every debt due from such debtor in respect of which a statement is not submitted to the Court by the creditor in compliance with the provisions of sec. 14 shall be extinguished. Section 17 provides for fixation of the two preliminary issues (1) whether the person for the adjustment of whose debts the application has been made is a debtor and (2) whether the total amount of debts due from such person on the date of the application exceeds Rs. 15 0 Section 19 provides for transfer of pending suits appeals applications and proceedings to the Court having jurisdiction under the Act hereinafter referred to as the Court . Sections 20 to 22 provide for the manner of taking accounts after the decision of the preliminary issues by the Court. Section 24 then deals with the power of the Court to declare certain transactions purporting to be sales to be in the nature of mortgage. After taking accounts under section 22 under sec. 27 the Court next determines-

(3.) Mr. Nanavati relied on certain decisions to show that this right of relief was purely a personal right of such a debtor. In Manubhai Mahijibhai Patel v. Trikamlal Laxmidas 60 Bom. L. R. 1092 my learned brother Miabhoy J. while he was sitting in the High Court at Bombay had held that in the absence of any agreement making a mortgagor personally liable a purchaser of equity of redemption in case of a usufructuary mortgage was not entitled to apply under section 4 for the adjustment of the mortgage debt. Even though it was covered under the definition of a debt under section 2(4) inasmuch as such a mortgage debt was not his debt within the meaning of sec. 4 the application was held to be incompetent. In Bai Mena w/o Patel Revabhai Ranchhodbhai v. Patel Vithalbhai Shambhubhai 3 G L. R 104 R. B. Mehta J. following the decision in Manubhai Patels case had also held that the transferee of a debtor who had no privity of contract with the creditor-mortgagee could not apply under section 4 as it was not his debt. In Mer Ranmal Vaman. v. Mer Vaishi Parbat and others A. I. R. 1963 Guj. 280 our learned brother Raju J. also took the same view in case of the Saurashtra Act and held that an application for adjustment by an heir of the original usufructuary mortgage was not competent. These three decisions thus only lay down that the person making the application must apply for adjustment of his debts and the transferee or heir who had no personal liability of his own could not make such an application. Mr. Nanavati next relied on the decision in Maruti Babaji v. Mart and Narayan Kulkarni24 Bom. L. R. 749 where it was only held that the immunity from attachment and sale in execution of a money decree against the property belonging to the agriculturist by virtue of sec.22 of the Dekkhan agriculturists Relief Act ceased as soon as the property passed on his death to his legal representatives who were not themselves agriculturists on the ground that at the material date of the attachment as the estate of the deceased had come in the hands of the legal representatives it had ceased to belong to the agriculturist. In the next case in Mart and Trimbak Gadre v. Amritrao Raghojirao Damle 27 Bom. L. R. 951 the question had arisen under section 10 A of the Dekkhan Agriculturists Relief Act 1879 which provided that the Court had the power to inquire into and determine the real nature of the transaction whenever it was alleged that it was really a mortgage at any stage of any suit or proceeding to which an agriculturist was party. Therefore before invoking section 10 A the condition that the person was an agriculturist had to be fulfilled at the material date when such question was raised. Accordingly it was held that a legal representative who was not an agriculturist and who was brought on record in place of the original agriculturist could not take advantage of section 10A to have the issue tried that the transaction was in the nature of a mortgage. Finally Mr. Nanavati relied on the decision in Shantaram Ganpat Mahadik v. Lalji Vithal Mehta 59 Bom. L. R. 382 where it was held that an application under sec. 47 (1A) of the Bombay Agricultural Debtors Relief Act for modification of the terms of the award made by the Court could only be made by the debtor and not by his heir. These authorities therefore only lay down that the right to make an application for adjustment of the debts under section 4 or that for modification of an award under section 47(1A) is personal to the debtor and cannot be availed of by the heirs or the transferees. So also the rights of claiming immunity from attachment under section 22 of the Dekkhan Agriculturists Relief Act or to lake advantage of section 10A there of were held to be personal to the agriculturist and if he was not so at the relevant date he could not get the said advantages. But none of these cases deal with the first question which has arisen before us