KASHIMSAB MOHAMMADALI GORIKHAN Vs. HAYATSAB AKBARSAB GADHINGLAJ

JUDGEMENT

(1.) The point for consideration is whether the impugned order of the Tahsildar, Belgaum, who is respondent-2 herein suffers from any legal infirmity and whether respondent-1 has ceased to be a debtor under the Karnataka Debt Relief Act in view of the allegation that the immovable property bearing No. 1558-B shown in the C.T.S. extract belongs to respondent- 1.

(2.) Though several contentions were urged by the learned Counsel for the petitioner, ultimately, the arguments advanced narrowed down into two points only. The first point being that even if respondent-1 has an income within the ceiling limit, he cannot be regarded as a debtor because he is the owner of immovable property bearing No. 1558-B consisting of a house worth more than Rs. 40,030/-. Secondly, the second charge on the mortgaged property evidenced by the deed executed on 6-5-1969 and registered on 9-5-1969 is independent of the earlier mortgage deed dated 18-2-1963 executed by the father of respondent-1 in favour of the petitioner and that, therefore, the relief sought in the application of respondent- 1 in respect of the mortgaged liability is incapable of being granted.

(3.) The mortgage deed executed on 18-2-1963 is by the father of respondent-1 who died before the Karnataka Debt Relief Act, 1976, came into force with effect from 21-10-1975. The second deed creating a charge on the same property came into existence after the death of the father of respondent- 1, but before the Act of 1976 came into force. The deed was executed on 5-5-1969 and registered on 9-5-1969; Whereas the mortgage deed dated 18-2-1963 was executed by the father of respondent-1, the second instrument registered on 9-5-1969 was executed by respondent-1 who is the legal representative of the deceased. From the contents of the second document which came into being in 1969, it is discernible that there is an acknowledgement of the liability created under the earlier mortgage deed dated 18-2-1963 as well as an undertaking to clear the earlier mortgage debt along with the mortgage debt arising under the deed executed in 1969. The acknowledgement of liability by respondent-1 under the earlier mortgage and willingness to pay the same together with the mortgage debt arising under the instrument executed in 1969 and the willingness to accept the same by the mortgagee create a situation wherein the liability arising in 1963 has merged with the liability which arose in 1969. Since the second deed came into existence before the coming into force of 1976 Act on 21-10-1975, it has to be construed as an existing liability or debt and it is open, to the debtor if he satisfies the eligibility envisaged under the Act to apply for necessary relief under the Act. That is exactly what; respondent-1 has done in the instant case.