MT CHAMPA DEVI Vs. MTASA DEVI

JUDGEMENT

(1.) The question of law that arises for consideration in the present application in revision is whether a suit filed by Mt. Asa Devi, plaintiff opposite party, in the circumstances to be presently stated, offends against the provisions of Section 7 (1)(b), U.P. Encumbered Estates Act (Act No. 25. of 1934). The Act was passed with the professed object of making provision "for the relief of encumbered estates in the United Provinces" and the machinery provided for by the Act for the purpose is set in motion by an application to the Collector in accordance with Section 4 of the Act. It is enacted by that section that any land, lord who is subject to or whose immoveable property or any part thereof is encumbered with private debts, may make an application in writing to the Collector of the district in which his land or any portion of his land is situated stating the amount of such private debts and also of his public debts both decreed and un-decreed and requesting the Collector to apply the provisions of the Act to him. On the receipt of such an application, the Collector is by virtue of Section 6 of the Act bound to forward the application to a special Judge appointed by the Local Government and invested with the jurisdiction to exercise the powers conferred and to perform the duties imposed on him by the Act. Section 7(1)(b) of the Act lays down that: When the Collector has passed an order under Section 6.... No fresh suit or other proceedings shall, except as hereinafter provided, be instituted in any Civil or Revenue Court in the United Provinces in respect of any debts incurred before the passing of the said order....

(2.) The facts that led to the institution of the suit mentioned above are as follows : Asa Devi plaintiff is the widow of the brother of the father of one Sbambhu Nath. The plaintiff's husband died in the year 1905 and then disputes arose between the plaintiff and Shambbu Nath about the possession of the properties belonging to the family. The family was possessed of immoveable properties of considerable value and was also in possession as usufructuary mortgagee of shares in two villages named Islamnagar and Muzaffarpur under two deeds of usufructuary mortgage that were executed in consideration of a sum of about Rs. 42,000. The dispute between Shambhu Nath and the plaintiff was amicably settled by means of a deed of family arrangement dated 17 August 1908. The arrangement arrived at was that Shambbu Nath was to get all the immoveable properties belonging to the family including the properties held by the family under the usufructuary mortgage deeds and was to pay forthwith in a lump sum Rs. 16,000 to Asa Devi plaintiff. Further, Shambhu Nath was made liable to pay to Asa Devi a sum of Rs. 1,300 per year on account of her maintenance. This amount of Rs. 1,300 was payable annually in two equal instalments. It was provided in the deed of family settlement that, in the event of the default of payment of three consecutive instalments, Asa Devi would be entitled to put an end to the family arrangement and take possession of the properties specified in the deed and to realize the instalments due with interest. The properties of which Asa Devi was entitled to take possession on the happening of the contingency referred to above, included half of the properties subject to the two usufructuary mortgages, and the deed provided that if those mortgages are redeemed by their respective mortgagors, and Asa Devi is consequently unable to get possession over those properties, she would be entitled to recover from Shambhu Nath a sum of Rs. 5,000 with interest at 8 annas per cent, per mensem.

(3.) It is common ground that portions of the shares mortgaged in the two villages were redeemed by the mortgagors or some of the mortgagors and that Shambhu Nath sub-mortgaged the remaining mortgaged shares that were in his possession to defendants 2, 3 and 4. Thus no portion of the mortgaged shares in the two villages remained in possession of Shambhu Nath. Shambhu Nath died some time ago and Mt. Champa Devi defendant, applicant in the present case is his widow and legal representative. It appears that the maintenance allowance fixed by the deed of family settlement was regularly paid to Asa Devi till 15 August 1933, but there, after there was default in the due payment of three consecutive instalments. Asa Devi accordingly brought the suit mentioned above in which she claimed the following three reliefs : (1) Possession of the immoveable properties including half of the mortgaged shares in the two villages. (2) In the event of her claim for possession of half of the mortgaged shares not being decreed, she prayed in the alternative for a decree for a sum of Rs. 5,000 principal and Rs. 375 interest. (3) A decree for a sum of Rs. 2,144 on account of the arrears of instalments and further a decree for Rs. 3,000 on account of past mesne profits.