RAMASWAMI Vs. SUBBAYYAN LALA

JUDGEMENT

(1.) THIS petition came up for decision by a Full Bench under the following order of reference by one of us: ORDER OF REFERENCE Govinda Pillai, J. "the 5th counter petitioner in the lower court is the revision petitioner. The matter arose in proceedings under Section 16 of the Debt Relief Act, On the death of the petitioner-debtor during the course of the proceedings a contention had teen raised by the revision petitioner that the petition under Section 16 became infructuous and could not be further carried on by his legal representatives. The court below held that after the death of the original petitioner the legal representatives were competent to continue the proceedings already started, so that they could claim the 1/4 share to which the original petitioner was entitled.

(2.) IT has now been settled by the Full Bench ruling in azhakappa Aiyer V. Sivakami Ammal [1947 T. L. R. 1] that by the use of the word "individual" in Section 16 of the Debt Relief Act a legal representative of the debtor was not entitled to put in a petition under the section for the settlement of the debts of the deceased man. But this ruling does not say that after the concessions allowed under Section 16 were invoked by an individual his legal representatives after his death could not continue the proceedings. This Full Bench ruling refers to a decision in C. R. P. 556 / 1119. That was decided by a Division Bench. Paragraph 2 of that decision is as follows: "there is no doubt that only the 'individual' who is unable to pay his debts under the foregoing sections can apply under Section 16. There is indication by the use of the word 'individual' that the right is personal, and this is not disputed. He must be unable to pay his debts also, meaning debts which he has contracted or is liable for The additional petitioner in the lower court is not shown to be an individual who is unable to pay his debts and even if he is, the debts here are the debts of the deceased payable out of the assets. In stating that the right to proceed under Section 16 is a personal right, we mean that it is an individual 'right to seek relief and the Act has been designed to relieve indebtedness. Rights intimately connected with the individuality of the deceased will not survive. " If that ruling is correct then the legal representatives of the person who put in the petition under Section 16 could not come in at any stage after the death of the petitioner, for, according to that ruling it was always a personal right which did not survive that individual. Though the word 'individual' is used in Section 16, the same word is not repeated in the following sections. On the other hand in Section 19 which lays down as to how the liabilities are to be settled and how the assets are to be divided, the word 'debtor' is used. One-fourth of the entire assets not exceeding Rs. 3000 in value shall be allotted to and given over to the debtor. Vide Section 19 [a]. In the proviso to that also the word 'debtor' is used in connection with the allotment of the homestead. Section 20 also deals with alienations made by the debtor. In Section 21 another word 'applicant' is used in relation to the execution of decrees obtained against the petitioner. IT could have been held that the debtor referred to in Sections 19 and 20 was none other than the 'individual' mentioned in Section 16, but for the definition of debtor in the same Act. In Section 2 [5] it is stated that a debtor includes the heirs and legal representatives of a debtor. If that be so, then the debtor referred to in Section 19 [a] would also include his heirs and legal representatives, and if the petitioner died after filing the petition his legal representatives could continue the proceedings. The order in C. R. P. 556 of 1119 does not seem to have noticed the use of the word 'debtor' in Sections 19 and 20 instead of 'individual'. In view of the different words used in Sections 16,19 & 20, it appears necessary to have an authoritative ruling on the question whether after the death of the 'individual' who filed the petition under Section 16, his legal representatives could continue the proceedings so that they could get the benefit of the one-fourth share which the petitioner would have got had he been alive till the termination of the proceedings. I therefore refer the above question and the civil revision petition to a Full Bench for decision. " 2. The Debt Relief Acts II and III of 1116 were passed to give relief to debtors. In the first instance debtors were allowed to get a full discharge on payment of a major portion of the debt in instalments and sections 7 to 15 make provision for the same. There were debtors who were by force of circumstances unable to take advantage of these provisions, and so sections 16 to 21 made provision to give them relief. Section 23 further amended the provisions of the Civil Procedure Code and considerably restricted the rights of the creditors to proceed against the person of the debtors.

(3.) THE use of the word "debtor" instead of 'individual", the "allotment" of property to that debtor, and the provision for the inclusion of the homestead wherever possible in which the debtor lives in the "share" to be allotted to him, would unmistakably indicate that the word "debtor" was used in the sense it was defined in section 2. Maxwell in the book on the Interpretation of Statutes, 9th edition at pages 322 and 323 stated with reference to the decided cases thus: "it has been justly remarked that, when precision is required, no safer rule can be followed than always to call the same thing by the same name. It is, at all events, reasonable to presume that the same meaning is implied by the use of the same expression in every part of an Act. Accordingly, in ascertaining the meaning to be attached to a particular word in a section of an Act, though the proper course would seem to be to ascertain that meaning if possible from a consideration of the section itself, yet, if the meaning cannot be so ascertained, other sections may be looked at to fix the sense in which the word is there used. " Again at page 324 it was thus laid down: "as the same expression is as a general rule to be presumed to be used in the same sense throughout an Act, or a series of cognate acts, a change of language, probably, suggests the presumption of change of intention, and, as has been seen, the change of language in the later of two statutes on the same subject has often the effect of repealing the earlier provision by implication. "