MUMBAI MHIJIBHAI PATEL Vs. TRIKAMLAL LAXMIDAS

JUDGEMENT

(1.) This revision petition raises an interesting point of law. The facts necessary to be stated in order to dispose of this point of law are as follows: One Fakirbhai Jijibhai was the owner of S. No.53. He mortgaged the same on 13-3-1924 to one Mahijibhai Patel for Rs.975/-. The mortgage was a usufructuary mortgage. The mortgagor Fakirbhai subsequently sold on 3-4-1926 his equity of redemption for Rs.1499/-, and the vendee was one Laxmidas. That Laxmidas was the father of opponent No.1. Out of the sum of Rs.1499/-, a sum of Rs.524/- was paid to the mortgagor Fakirbhai a8nd the balance of Rs.975/- was retained by the purchaser for payments to the mortgagee Mahijibhai patel. That mortgagee was the father of the present petitioners. Subsquently, on 3---1926, the mortgagor Fakirbhai again pruported to sell the same equity of redemption for a sum of Rs.1300/- and the vendee was the mortgagee Mahijigbhai himself. In 1947, Laxmidas, father of opponent No.1, filed an application under Sec.4 of the B.A.D.R. Act for adjustment of the aforesaid mortgage-debt. An award was passed by the B.A.D.R..Court on 21-7-1955. From that an appeal was preferred to the District Court and the sam was dismissed on 29-9-1956. The petitsioners have come in revision to this Court against that appellate order.

(2.) The only point which is urged on behalf of the petitioners is that, having regard to the aforesaid facts, there was no debt which the purchaser Laxmidas owed to the mortgagee, the father of the petitioners, and, therefore, the application for adjustment of that debt did not lie. The contention is based upon the definition of the word "debt" as given in section 2 sub-section (4) of the B.A.D.R. Act. Before I mention that definition, ir is necessary for me to state the provisions of Sec.4 of the B.A.D.R.. Act, under which the application was made by Laxmidas, the father of opponents No.1. The relevant portion of that section is as follows: "Any debtor.... may make an application..... to the Court for adjustment of his debts." Therefore, it is quite clear thatthe object of the aforesaid application under Sec.4 is the adjustment of the debt of the debtor. In this connection, it is important to notice that a person ay be a debtor and, satisfy the conditions laid down in sub-section (5) of Section 2, but still, before any debt can be adjusted it is necessary that the debt must be his debt. Therefore, the question for consideration is whether, having regard to the aforesaid facts, the mortgage-debt which is sought to be adjusted in the present case is the debt of the purchaser of the equity of redemption viz. Laxmidas aforesaid.

(3.) Now turning to the word "debt" it is defined as follows: "debt" means any liability in cash or kind, whether secured or unsecured due from a debtor whether payable under a decree or order of any Civil Court or otherwise (and includes mortgage money the payment of which is secured by the usufructuary martgage of immoveable property) but does not include arrears of wages patable in respect of agricultural or manual labour." Therefore, in order that a thing may come within the definition of the word "debt", it is necessary that there should be a liability, and rthar liability must be due from a debtor. Now, having regard to the aforesaid facrs the debt which was owed by the mortgagor Fakirbhai Jijibhai. Therefore the mortgage debt was the debt which was owed by Fakirbhai. The question for consideration is whether, having regard to the fact that Laxmidas became the purchasers of the equity of redemption, and also, having regard tothe fact that Laxmidas retained a sum of Rs.975/- from out of the purchase price to be paid to the mortgagee mahijibhai Patel, Laxmidas became a debtor of the mortgagee Mahijibhai in respect of the aforesaid moretgage debt. Mr. Hirendra K.Shah, who appears on behalf of the petitioners, contends that, by the aforesaid, Laxmidas, did not become a debtor of the mortgagee Mahijibahi. For this purpose, he relise on the ruling reported in Jamnadas v. Ram Autar Pande, 39 Ind App 7 (PG). In that case, it was held.