MATHAI KUNJU NAINA Vs. POTHA EAPEN

JUDGEMENT

(1.) THE plaintiffs sued for the balance due under Ext. A, chitty hypothecation bond dated the 28th Edavam,1104, executed by the deceased father of defendants 1 to 5. THE contention of the latter was that there had been a settlement of all their father's debts under S. 16 of the Travancore Debt relief Act, 1116, by Ext. I order. This contention has been accepted by the subordinate Judge in appeal and hence the second plaintiff has preferred this second Appeal.

(2.) THE point urged in this appeal was that under S. 16 of the Act, the court has jurisdiction to entertain only an application by an "individual" and for the settlement of "his" debts and not, as has happened, by a group individuals like defendants 1 to 5 and for the settlement of the debts of their father. THE term 'individual' has been interpreted by a full bench of the Travancore High Court in Chidambara Iyer azhagappa Iyer v. Nallathayammal Sivakami Ammal,1947 TLR. 1, to mean "a single man or woman as contrasted from the species or body of which he or she is a member along with other individuals. " Though this precise point did not arise for decision in Swaragiri Krishnan Ramaswami v. Rangaswami Subbayyan lala,1953 KLT. 98, the above interpretation of the term 'individual' was affirmed as correct by a full bench of the Travancore-Cochin High Court. THEse decisions were rendered after the passing of Ext. I order. It may now be taken as settled that defendants 1 to 5 were not legally competent to make the application under S. 16 for the settlement of the debts of their father. But the question really is whether such lack of competency involved a jurisdictional defect and whether even if it did so, Ext. I can for that reason be treated as null and void. Assuming that a jurisdictional issue is posed thereby, it has to be answered by the application of the following dictum of Lord Esher in Queen v. Commissioner for Special Purposes of the Income-tax, (1888) 21 Q. B. D. 313 at 319: 'when an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. THEre it is not for them conclusively to decide, whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. THE legislature may intrust the Tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction. " It does not seem proper to think, that S. 16 says in effect, that if only there is an application by an "individual" as so interpreted the court administering the Debt Relief Act shall have jurisdiction but not otherwise. Speaking in terms of jurisdiction, it is more proper to hold that the legislature has given the court, the jurisdiction to decide whether there are debts to be settled, whether the applicant is unable to pay his debts and whether there is an application in terms of the Section. Adopting the language of Lord Esher it is erroneous to hold that the court cannot give itself jurisdiction by wrongly deciding the existence of the above facts, because the legislature gave it "jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends", and no right of appeal being granted, "there is no appeal from such exercise of jurisdiction. "