BABU JYOTI BHUSHAN Vs. BABU SHIVA PRASAD GUPTA

JUDGEMENT

(1.) This appeal arises out of execution proceedings taken to enforce a partition decree dated 25 February 1926. The decree which was based on an award dated 30 November 1925, directed the members of one branch of a Hindu family to pay to the respondent Shiva Prasad, who represented another branch, the sum of Rs. 13,68,358 for the purpose of equalising the values of the allotted shares. The question is whether the sum still due and unpaid in respect of this obligation is a "debt" within the meaning of the U. P. Encumbered Estates Act, 1934 (United Provinces Acts, 36 of 1931 and 4 of 1935), herein referred to as "the Act," or whether, as held by the High Court, the Act has no application thereto. Section 2 of the Act is a definition section in the sense indicated by its opening words and the first of a number of words and phrases therein defined or explained is the word "debt:" 9. In this Act unless there is anything repugnant in the subject or context; (a) 'debt' includes any pecuniary liability except a liability for unliquidated damages.. . . The branch whose members became by the partition decree judgment-debtors for the money now sought to be recovered is represented by the appellants Jyoti Bhusan and Gokul Chand together with their sons and grandsons.

(2.) These two families are, however, divided since 1934. On 3 February 1934 the respondent Shiva Prasad applied to the Civil Judge of Allahabad for execution of the partition decree against the appellants and obtained an order for the attachment and sale of a house at Allahabad, and for the issue of transfer certificates to other Courts in the province - at Benares, Jaunpur and Gonda and also to a Court at Calcutta. On 5 October 1936, Gokul Chand and his descendants applied to the Collector of Benares under S.4 of the Act requesting that the provisions thereof be applied to him and the Collector duly forwarded the application to the Special Judge pursuant to S. 6. On 9 October application was made by the same parties to the Civil Judge of Allahabad for a stay of the execution proceedings and recall of the transfer certificates; and on 10th October an order was made by the Civil Judge to that effect. On 21 October, the appellant Jyoti Bhusan also applied to the Collector of Benares for the benefit of the Act and the Collector forwarded his application also to the Special Judge as required by S. 6. In that state of the proceedings, the respondent Shiva Prasad on 19 February 1937, applied to the High Court of Allahabad to set aside or vary the order of the Civil Judge dated 10 October 1936, staying the execution proceedings and recalling the transfer certificates. For some reason this application was made in revision under S. 115 of the Code but it was treated as an appeal and was referred to a Full Bench. On 12 October 1938, Bennett, Ismail and Varma JJ. allowed the appeal and directed that execution should proceed. In their joint judgment they say: We do not think that the Act was intended at all to apply to the subject of partition among the members of a joint family and accordingly in our opinion the subject is one which is repugnant to the definition of the word 'debt' in S. 2, cl. (a) of the Act.

(3.) Hence in their view "the present Act does not apply the word 'debt' to the present case." The learned Judges point out that under the Act the sum decreed in the present case would come in the last of the six classes mentioned by S.16 being merely an unsecured debt; so that if the property be not sufficient to discharge all the other classes of debt, the result of applying the Act would be as they put it, "to deprive the appellant of part of his share in the joint family property." They do not think that this can ever have been the intention of the Legislature : We do not see why the Encumbered Estates Act should be introduced in order to give one member of the family more than his share and to give another member of the family less than his share. The interpretation of the Act upon the point now raised cannot depend upon any facts special to the present case hut their Lordships will make some reference to its special features in due course. The first question is whether it can be held that the Act has no application to an obligation imposed or assumed at the time of partition to pay money by way of "owelty"-that is, in order to equalise the division of the property or to make it correspond with the parties' shares in the joint property. Their Lordships are unable to accept the conclusion of the Full Bench upon this point, and think that such an obligation is a debt in the ordinary meaning of the word and in the meaning indicated by S.2. The Act contains no exception in respect of such an obligation, and must in their Lordships' view be applied to the present case.