JAMSHED JAHAN BEGUM Vs. LAKHAN LAL

JUDGEMENT

(1.) The question that arises for consideration it in this appeal, by special leave, is as to whether the bhumidhari rights and trees belonging to the appellants can be proceeded against and sold for realisation of the debts due to the respondents under the U. P. Encumbered Estates Act, 1934 (Act XXV of 1934) as amended (hereinafter referred to as the Encumbered Estates Act) . The contention of the appellants is that they cannot be sold, whereas according to the respondents, they can be sold.

(2.) The predecessors-in-interest of the appellants were landlords owning immovable properties, including agricultural land trees, groves and well, situate in the various villages in the District of Saharanpur they were very heavily indebted, the debts being both secured and unsecured payable by them to the creditors. The respondents were among the secured creditors to whom large amounts were due. On or about March 26, 1936 the appellant's predecessors-in-interest filed an application under S. 4 of the Encumbered Estates Act to the Collector for determination of their debts. As required by S. 6 of the said Act, the Collector forwarded this application to the Special Judge, Saharanpur, appointed under S. 3 of the said Act and the said application was registered as Suit No. 23 of 1936. After complying with the other formalities under the Encumbered Estates Act, the Special Judge, on December 23, 1936 passed a decree under S. 14 (7) of the Encumbered Estates Act. The said decree was amended on January 23, 1938. The Special Judge granted a decree in favour of respondents 1 to 3 for two sums of Rs. 36,000/- and Rs, 25,000/- on loans secured over properties mentioned in Schedules A, B and C of the decree. hey were also granted a decree for Rs. 9,000/- which was the decree debt for the payment of which the mother of the daughters had stood surety. Over and above these amounts, the respondents were given a decree for Rs. 3,500/- for an unsecured debt.

(3.) The liquidation proceedings which were started under the Encumbered Estates Act and were pending before the Collector were stayed till 1954 in view of the contemplated legislation for abolition of zamindary the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U. P. Act 1 of 1951) (hereinafter referred to as the Abolition Act) , and the appellants' estate vested on July 1, 1952 in the State by virtue of the notification issued under Section 4 (1) of that Act. The liquidation proceedings pending before the Collector under the Encumbered Estates Act were reopened in the year 1955. On May 15, 1959 the respondents made an application to the Assistant Collector of Saharanpur (to whom powers of the Collector, for the purposes of Section 24 of the Encumbered Estates Act had been delegated) to recover the amounts decreed to them by the Special Judge by proceeding against the bhumidhari rights and trees belonging to the appellants and to auction the same under Section 24 of the Encumbered Estates Act. The appellants filed objections, briefly, to the following effect. The decree holder is not entitled to proceed against the bhumidhari rights or the trees in their possession. The decree-holders, debts are secured debts and they are entitled only to three-fourths of the Zamindari Abolition and Rehabilitation Grants and that they are not entitled to get anything more under the decree. The list forwarded by the Special Judge does not refer to any of their rights now sought to be attached and therefore no execution can be levied against such properties. Bhumidhari rights accrued only after the abolition of the zamindari and as such, they cannot be proceeded against for realisation of the decreed amounts. The Assistant Controller, by his order dated February 21, 1961 upheld the objections of the appellants debtors and dismissed the application of the decreeholders-respondents for sale of bhumidhari and other rights in the properties mentioned by them. The basis on which the Assistant Collector declined to allow executing to proceed was that bhumidhari rights represent the proprietary rights which the zamindars, on the abolition of the estate, were allowed to retain, by the Abolition Act. In substance, those rights were the original proprietary rights, though a new name of bhumidhari rights was given to them.