SUNKANNA Vs. RAMASWAMY SETTY

JUDGEMENT

(1.) THE petitioner was a judgment-debtor in O. S. No. 33/75. He suffered a decree at the hands of the respondent for a sum of Rs. 2,770/-. THE debt was said to be incurred on the basis of a promissory note.

(2.) NOW the plaintiff-decree holder sought execution of that decree and brought the land admeasuring Acs. 0-88 cents situated at Bhogolu village in Survey No. 425/2A for sale. At that stage, the Judgment--debtor filed a petition under Section 4 of the Andhra Pradesh Agricultural Indebtedness (Relief) Act, 1977, Act No. 7/77. He contended that he was a small farmer and the debt must be deemed to have been discharged under Section 4 of the aforesaid Act. The contention of the Judgment-debtor was that himself and his five sons constitute a joint Hindu family and that joint Hindu family owns about Acs. 10-00 of land and if this property is notionally divided among the members of the joint family, the would get less than the minimum specified under the provisions of the aforesaid Act and would make him a small former entitling him to the benefits of the Andhra Pradesh Agr cutural Indebtedness (Relief) Act 7/77. The decree-bolder challenged the correctness of the contention of the Judgment-debtor. But the lower court found that the total holding of the Judgment-debtor was about Acs. 10.000. In this Revision petition I am not shown how or why this finding of fact should be interfered with. But the lower court had refused to grant relief to the Judgment-debtor on the ground that notion- ally excluding the share that would fall to the major son, the rest of the property must be counted to the credit of the Judgment-debtor. If that is done it is not in dispute that the Judgment-debtor would not qualify himself to be a small farmer and would, therefore, be excluded out of the protective purview of Act. 7/77. The question which has now been raised by the learned counsel for the petitioner is that the lower court had eired in excluding the share that would notionally fall to the lot of the major son alone. According to the learned counsel for the petitioner, there is no reason why the share of a major son alone should be excluded and the shares of other co-parceners in the joint family should be computed together for the purpose of determining whether the Judgement-Debtor was or was not a small farmer. Section 3 (t) of Act 7/77 which defines "Small farmer" to mean a person whose principal means of livelihood is income derived from agricultural land and who holds and personally cultivates agricultural land looks to each individual debtor and not to the members of the joint family collectively. Prima facie, therefore, in order to determine whether the Judgementdebtor is or is not a small farmer what has to be taken into account is only the share that belongs to him in the joint family and not the shares of other to-parceners whether they are majors or minors. 1 am, therefore, unable to approve the lower court's judgement in counting the shares of the minor children also along with that of the Judgement-debtor for purposes of determining the status of the judgement debtor as a small farmer. But Mr. R. V. Subba Rao, the learned counsel for the respondent cited a decision of the Division Bench reported in P. Varahalamma vs. Repati Ramanna to show that in order to decide the question whether a member of a Hindu joint family was small farmer or not, only the share of major members of the co-percenary should be excluded. There is no doubt that a reading of the Judgment would show that the learned Judges were not deciding the question whether exclusion should be effected only of the shares of the major members or not. In that case, the question that the learned Judges were considering was whether a debt owed by a joint family could be excluded against the members of the joint family. The contention of the counsel in that case was that the debt could be executed against the properties of the joint family because so long as there was no severance in status and so long as the property was not divided by metes and bounds no one can predicate the share of each co-parcener and without such ascertainment of the share of each co-parcener this holding cannot be ascertained. Both the learned Judges have rejected this argument of the counsel as one peculiar to law of joint Hindu family ami has no application to Act No. 7/77. The learned Judges held that the notional shares of each member of the joint family must be taken into account and execution can be levied only against those sharers who hold more than the extent of land prescribed under Act No. 7/77. If this is the ratio of that case as I understand it to be there is no reason why the notional partition should be confined only to he major members of the co-percenary and should not be extended to the minor members. Following that judgment, therefore, I hold that the entire property of about Acs. 10,00 belonging to the father and 5 children must be notionally divided and if that is done there cannot be any dispute that the Judgment debtor holds less than the extent of land prescribed under Act 7/77 Under Section 4 of the Act, the debt against the Judgment debtor would stand discharged and no civil court can take any further steps to execute the decree. The lower court's finding, therefore, is set aside. But Mr. Subba Rao the learned counsel for the respondent argued that in execution of the decree, the aformentioned Acs. 0-88 cents of land bad been sold and when once the property had been so sold, the Civil Revision Petition would become infructuous because no relief can be granted to the petitioner in this civil revision petition and his remedy is to take appropriate civil action. I find it difficult to follow this reasoning. Notwithstanding the fact that Mr. Subba Rao repeatedly asserted that once the property is sold such a sale cannot be undone in this civil revision petition,. I am wholly unimpressed by this argument. I always thought that it is a basic fundamental postulate of the law that nothing comes out of nothing. If the petitioner's property was purported to have been sold in execution of a decree which is a nullity it cannot transfer the rights in favour of any person not with standing the fact that the sale was conducted under excellent official auspice. Luckily in this case there was no intervention of third party interests. The decree-bolder himself had purchased the property. I therefore, direct that the land which had been sold in execution of the decree in O. S No. 33/75 should be restituted to the petitioner. The Civil Revision Petition is accordingly allowed with costs. GVKR, C.R.P. Allowed.