NARAYANAN SOMAN Vs. ITTY KURUVILLA

JUDGEMENT

(1.) The father of the revision petitioners filed an application for the settlement of the only debt which he owed, and which was to the respondent herein, under S.15 of Act 31 of 1958, referred to as the Act. He died pending the application and the revision petitioners sought to be impleaded as legal representatives of I. A. 1469 of 1964. This application was dismissed and hence this revision petition.

(2.) It has been held by a full bench of the Travancore - Cochin High Court in Swaragiri Krishnan Ramaswami v. Rangaswami Subbayyan Lala, 1953 KLT 98 that a proceeding under the analogous provision, S.16 of the Travancore Debt Relief Act, did not abate on the death of the applicant on whose application the proceeding was initiated, but that his legal representatives were entitled to continue the same. In two other cases, Chidambara Iyer Azhagappa Iyer v. Nallathayammal Sivakami Ammal (1947 TLR 1) decided by the Travancore High Court under S.16 of the Travancore Act, and Mary v. Govindan ( 1963 KLT 590 ) decided by a bench of this court under S.15 of the Act, it was held, that the legal representatives of a deceased debtor cannot by themselves initiate such a proceeding for the settlement of his debts. That is not the case here. The question here is similar to what has been answered by the full bench in the case cited under S.16 of the Travancore Act. Under that Act also as under the Act, there is provision for the allotment of a share of his properties to the debtor, including his homestead, freed from liability to a certain extent. The full bench observed, that "there is no reason to hold that this ascertained asset could not be inherited by his legal representatives". The full bench also relied on the distinctive use of the terms "individual" in S.16 and "debtor", as including his legal representatives in the later Sections which relate to proceedings for settlement of debts, as supporting its view, that once a proceeding is initiated by a debtor, upon his death his legal representatives can continue it to its logical termination.

(3.) In Mary v. Govindan (1963 KLT 590) it was held, that the right to apply under S.15 is of an agriculturist who is unable to pay his debts and no of his legal representatives after his death; we entertain no doubt as to this. But this is not to say, that having made the application, the right to the reliefs obtainable pursuant to it, cannot pass to his legal representatives. What is the relief that can so pass, has to be understood in the light of S.18 of the Act. That Section provides how the liabilities of the debtor have to be settled. Under it, one fourth of the entire assets of the debtor applicant, including his homestead, not exceeding Rs. 6500/- in value, has to be allotted and given over to him subject to certain liabilities only. This right is statutorily conferred on him and is vested, once an application is filed in accordance with law. There can be no doubt, that the share when allotted, would pass on his death to his legal representatives. It must equally follow, that as a vested right, the right to the allotment of one fourth share would also, in the event contemplated, pass to them. The conditions necessary for the application of S.141 and 146 of the Civil Procedure Code are therefore fulfilled and by virtue thereof, the legal representatives are entitled to prosecute the application under S.15 after the death of the applicant, though they had no right to make such application. We see no anomaly in this. It only remains to add that the term "debtor" in the context of S.18 has reference to the applicant whose debts are sought to be settled, the term including his legal representatives when he is no more, and that the definition in S.2(fff) has no application, as "the context otherwise requires." We see nothing in Mary v. Govindan (1963 KLT 590) which is opposed to the view we are taking.