SHAIK KHAJA HUSSAIN Vs. ZAHIRA BEE

JUDGEMENT

(1.) The point in these two revisions which is common and so disposed of by a common order, is whether it is open to the legal representatives to claim that they are small farmers within the meaning of Act 7/77 with reference to the debt which their ancestor had contracted and which was subsisting on the date of commencement of the Act though the debtor who had initiated lis in this behalf and failed to establish that it. was a debt within the menning of the Act. The answer is found in a decision of a Division Bench of this court in Abdul Aziz vs. Golla Bhunimavva as under : "... .Therefore, in order to claim the benefit under Section 4 (1) of the Act, the applicant for relief roust establish that he is an agricultural labourer or a rural artisan or a small farmer at the commencement of the Act and that the debt was subsisting at the commencement of the Act. ...............As already held by us, on a consideration of the definitions of 'creditor' 'debt' and 'debtor' and the provisions of Section 4 (1), in order to give relief under Section 4 (1) it has to be established, firstly that the debt was borrowed or incurred prior to the commencement of the Act and that the person who was claiming relief under Section 4 (1) whether he has originally borrowed the debt or whether he has incurred the liability for the debt, should establish that he was on the date of commencement of the Act an agricultural labourer or a rural artisan or a small farmer. The person claiming relief under Section 4 (1) need not necessarily be the original borrower, but he may incur the liability by operation of law or otherwise." It was further held : "... .But the decision establishes the well settled principle that a right to claim relief under the said Act was not confined to the person who originally contracted the debt but was available to his legal representatives and assignees as well, and that it was not necessary that the applicant should be personally liable for the debt." In this case the facts are rather crucial to decide the point debated here. The original debtor by name Attar Mohammed Hussain had filed a petition under Section 6 ot Act 7/77 which was however dismissed by the first Tribunal holding that he was not small farmer. An appeal was preferred and pending the appeal he died on 2-2-79. The appeal was later dismissed on 12-6-79. Thereafter a writ petition was filed in W. P. 6344/79 which was prayed for being dismissed as infructious and therefore it was dismissed as infructuous on 29-11-85. The writ petition was filed pending the E.P. which was filed by the petitioner creditor herein after the appeal was dismissed for execution of the decree. Pending the writ petition there was a study and after the dismissal of the writ petition the E.P. was decided wherein it was held that it is open to the legal representatives of the original debtor to re-establish the case being the legal representatives who stopped into the shoes of the original debtor and they should establish de novo as to whethe they were entitled to the relief with reference to the debt which was in existence at the time of the commencement of the Act. The lower court held that it is open to the respondent-legal representatives herein to press into service to the effect that it is open to them to establish that they were small farmers with reference to the debt that was contracted by their predecessor in title though against whom there was a judgment earlier holding that he was not a small farmer with reference to the agricultural property. This argument found favour with the lower court which allowed the same resulting in the dismissal of the E.P. Hence this revision petition.

(2.) The contention of the learned counsel for the petitioner is that the decision rendered against the original debtor wherein the specific plea was taken that this debt will have to be discharged as he was a small farmer within the meaning of Act 7/77 was dismissed and also confirmed in appeal and therefore it is not now open to the legal representatives to once again claim the relief that they are small farmers, with reference to the same property that was left behind by the original debtor as it would constitute res judicata against the legal representatives.

(3.) The counter contentions of the learned counsel for the respondents is that when once it is accepted that it would be open to the Iegal representatives also to agitate and seek relief under Act 7/77 notwithstanding the fact that earlier there was a decision against the original debtor and also notwithstanding the fact that the original debtor died subsequent to the commencement of the Act during the pendency of the appeal preferred by him against the order of the original Tribunal, resulting thereafter in dismissal of the same, it will be open to the legal representatives to agitate de novo with reference to their position as to whether they were small farmers or not and it is certainly competent for the courts to adjudicate once again with reference to their claim, status and the property involved which they inherited subsequent to the death of the original debtor.