DEVANANDAN PRASAD SINGH Vs. MTBIBI KANIZ FATMA BEGUM

JUDGEMENT

(1.) THIS is an appeal on a question of valuation under Section 13, Bihar Money- Lenders Act, 1939. The judgment-debtor was on her application at first granted instalments, but the very first instalment not having been paid, the question of valuation of the properties arose. The judgment-debtor did not appear, and a valuation was made on such materials as were produced by the decree-holder. Later on the judgment-debtor came forward and asked for a fresh valuation on the ground that she had not got notice of the previous valuation, and this application was allowed by the lower. Court. The result was somewhat striking. According to the judgment-debtor's case when the question of instalments was considered, the propeties were in thika under her for Rs. 1771 annually, out of which she had to pay Rs. 1114 as revenue and cess, thus leaving her Rs. 657 per year only; and yet on the present occasion she put forward a valuation of these properties amounting to no less than Rs. 84,000 which the learned Subordinate Judge has reduced to about a half by reason of certain encumbrances on the property and of a ten per cent, reduction on account of commutation and rent reduction in very recent times. Apart from the great difference between this value and the value previously indicated, the very basis adopted by the learned Subordinate Judge for his valuation seems to be wrong. The cess revaluation papers that were produced before him and that he took as his starting point, relate, we understand, to the years 1928-29. Much water has flowed under the bridge since then especially the agrarian troubles of recent years including commutation and rent reduction, which, judging from experience in other cases that have come before this Court, seem to have reduced the income of zamindars by 30 to 40 per cent., if not more, in most districts. The value of the properties now in question cannot therefore be properly fixed on the cess revaluation papers of 12 or 14 years ago minus a reduction of 10 percent. It was for the judgment-debtor who came forward on the ground that she had no notice of the previous ex parte valuation to show that that valuation was wrong. It was further in her power by producing her papers to show the present income from the property. Mr. Hareshwar Prasad Sinha who appears for the judgment-debtor has drawn attention to her statement in cross-examination that the term of thika of three of the six villages expired about two years ago. THIS statement seems to conflict with her statement in examination in chief that the properties were in the possession of thikadars. But apart from this conflict, if it be a fact that three of the six villages are now in the hands, not of the thikadar but of the judgment-debtor herself, it is to be observed against her that she did not say anything about this at the time when the application under Section 11 for instalments was being disposed of. Singheshwar Prasad, who was examined on her behalf, admitted in cross-examination that there were village papers in the sharista which would show the annual income of the properties. These papers were not produced at all. It cannot be seriously pretended that Singhe-shwar's statements that the value of lot No. 1 is Rs. 8000 and of lot No. 2 Rs. 11,000 and so on, should be treated as evidence of any value. If the judgment-debtor began her case of valuation with the cess revaluation papers, as it was undoubtedly open to her to do, it was plainly incumbent on her to show to the satisfaction of the Court how the figures in those papers had been modified by recent proceedings, whatever limitations may have been imposed upon her by reason of the fact that the property was in possession of her thikadars. It has been stated before us that the rest of the villages will also soon come out of the hands of the thikadars. For this to affect the valuation, it is plain that the thikas should have been produced before the Court. But in any case it is an error to fix the valuation on the lines on which the lower Court has proceeded viz., applying a 10 per cent, reduction on account of recent proceedings.

(2.) I would therefore allow this appeal, set aside the order of the lower Court and send the case back to the lower Court for disposing of the question of valuation in accordance with the law, bearing it in mind that the onus lies upon the judgment- debtor who had obtained the order regarding instalments on certain representations regarding the income which must be shown to be not inconsistent with any representations since made by the judgment-debtor or the inconsistencies explained away to the satisfaction of the lower Court. The judgment-debtor will be at liberty, and so will the other side, to adduce such further evidence on the question of valuation as they may be advised. She will also bear the costs of this hearing and of the proceeding in the lower Court so far. The costs of the further hearing will be in the discretion of the lower Court. Harries C.J. I agree.