GANGA SAHAI Vs. TEJPAL SINGH

JUDGEMENT

(1.) Choudhri Tikam Singh, the father of the plaintiff-respondents executed a deed of usufructuary mortgage on 10 July 1928 in favour of the appellant, Ganga Sahai in order to secure the payment of a sum of Rs. 6337 due upon a decree. He made an application under the Encumbered Estates Act on 29 August 1935 and, therein made the necessary statement that he had disrupted the joint family of which he and the respondents were members. The special Judge in accordance with the provisions of the Encumbered Estates Act apportioned the debts and property of the family between the applicant andh is sons. He found that the liability of Chaudhri Tikam Singh under the mortgage was to pay a sum of Rs. 1267-6-5 and the liability of the sons was to pay a sum of Rs. 5069-9-7, that is, he held that Chaudhri Tikam Singh was liable for 1/5 of the debt and the sons for 4/5ths of it. Then the respondents, on 24 May 1941, made an application under Section 12, Agriculturists Relief Act, for the redemption of the mortgage on the allegation that the whole debt had been satisfied from the usufruct and that nothing remained to be paid by them on the basis of the mortgage. The learned Judge of the Court below found in their favour and directed that the property should be delivered to them. The mortgagee, Ganga Sahai has instituted this appeal.

(2.) It has been argued, in the first place, on his behalf that the respondents were bound by the decree of the Court of the special Judge by which they were liable to pay a sum of Rs. 5069-9-7 and that it was not open to them to plead that no sum of money ,was due when they made their application under the Agriculturists Relief Act. In our judgment, there is no force in this argument. The proceedings under the Encumbered Estates Act may, in-one sense, be deemed to be one proceeding but, in another sense, they amount to a set of proceedings in which the liabilities of the applicant and joint debtors or joint owners of property are apportioned in which the amount due to each creditor from the applicant under the Act is determined and in which any disputes which may arise about the applicant's property are made the subject of decrees. In so far as the debts are concerned, the decision is one between the creditors and the applicant and cannot bind any person from whom money may be due but who is not an applicant under the Act. The whole purpose of the Act is to place the property of the applicant in the hands of the Collector who must realise the assets under the provisions of the Act and apply them for the purpose of discharging, as far as possible, the liabilities of the applicant. There is no method by which any decree passed by the special Judge against a person who is not an applicant could be executed under the terms of the Act and it is obvious that the special Judge has no jurisdiction to pass a decree against any such person. In apportioning the liabilities ho may incidentally have to come to a conclusion about the liabilities of persons other than the applicant but those liabilities cannot be made the subject of a decree in his Court against those persons. It has also been suggested that Chaudhri Tikam Singh should be deemed to have made his application under the Encumbered Estates Act on behalf not Only of himself but also of his sons. This argument is contrary to the terms of the application. Chaudhri Tikam Singh was not bound to apply on behalf of his sons and he did not purport to do so. He applied entirely on his own behalf and, as we have already said, made a statement that the family had been disrupted.

(3.) Learned Counsel for the appellant has also referred us to the provisions of Section 60, T.P. Act. He points out that these provisions are not affected by the provisions of the Agriculturists Relief Act or the Debt Redemption Act, which was in force at the date of the lower Court's decree and in accordance with which the calculations affecting the liabilities of the parties were made. Learned Counsel contends that the respondents ought to redeem the whole mortgage and not only that part of it which affected them. It seems to us that he has overlooked the fact that Section 60, T. P. Act, when it speaks of a mortgage debt means that portion of the amount secured by the mortgage which is still due. Under the provisions of the Encumbered Estates Act, the mortgage on Chaudhri Tikam Singh's share of the property was discharged and in place of the mortgage debt there was substituted a simple debt which was to be discharged by the Collector. It was only 4/5ths of the original mortgage debt which remained to be secured by the mortgage deed and only 4/5ths of the property could be applied to the payment of that debt. The respondents were willing to pay the whole amount still secured by the mortgage and sought the redemption of the whole of the property which was still the subject of the mortgage. They were, therefore, not barred, in any way, by the provisions of Section 60, T.P. Act.