KRISHNA KUMAR TIWARI Vs. JURAWAN MISIR

JUDGEMENT

(1.) This is a decree-holders appeal and raises a question of first impression. On 15 January 1927, one Indrajit Misir executed a mortgage in favour of Krishna Kumar Tewari for a sum of Rs. 500. In the year 1934 the mortgagee filed suit on the basis of the mortgage for recovery of the money due by sale of the property (suit No. 552 of 1934). During the pendency of the suit, Indrajit Misir died and after his death a dispute arose between his two sisters, on the one side, who claimed the property by inheritance, and one Jurawan Misir on the other, a stranger to the family, who claimed the property as a legatee under an unregistered will. The sisters ultimately admitted the genuineness of the will and withdrew their objections. The plaintiff impleaded as defendants all the three in place of Indrajit Misir deceased. A final decree for sale was passed on 22nd March 1936, against Jurawan Misir and the two sisters of Indrajit Misir. On 22nd July 1941, the decree-bolder filed an application for execution of the decree by sale of the property. Jurawan Misir filed objections and claimed that he was an agriculturist and was entitled to the benefits of Secs.8 and 9, U.P. Debt Redemption Act (XIII

(13.) of 1940). The decree-holder contested the objection of Jurawan Misir on the ground that there was no will in his favour executed by Indrajit Misir and he had, therefore, no title to the property. The two lower Courts went into the question and came to the conclusion that Jurawan Misir had failed to prove the will and had, therefore, no title to the property and was not entitled to file any objections. On appeal to this Court a learned single Judge disagreed with the view taken by the lower Courts and allowed the appeal on a finding that the appellant being an agriculturist and being liable to pay the amount was entitled to apply under Section 8, and the subsequent sections of the Act. The learned Judge, however, gave leave to the decree-holder to file an appeal under the Letters Patent, and that is how the case has now come up before this Bench.

(2.) The question for decision is whether a person, who has no title to the property, but is in possession of the same with the consent of the real owner -it being not denied that the two sisters were the legal representatives of Indrajit Misir-could claim the benefit of Section 8, Debt Redemption Act. The relevant portion of Section 8, is as follows: Notwithstanding the provisions of any decree or of any law for the time being in force, an agriculturist or a workman liable to pay the amount due under a decree to which this Act applies passed before the commencement of this Act, may apply to the civil Court which passed the decree or to which the execution of the decree has been transferred, for the amendment of the decree.... The question is whether Jnrawan Misir is a person who is "liable to pay the amount due under" the decree. Mr. A.P. Pandey, on behalf of the appellants, has pointed out that the suit having been filed on a mortgage, executed by Indrajit Misir, after his death the amount could be realised only by the sale of the mortgaged property. Jurawan Misir was, therefore, not personally liable to pay the debt. The liability was only of the property included in the mortgage and could it, therefore, be said when the property does not belong to Jurawan Misir, that he was liable to pay the amount if the money could be recovered only by sale of such property? There can be no doubt that the law does not contemplate that only a full owner should be entitled to claim the benefits of Section 8 , and even a limited owner like a Hindu widow can, in her lifetime, claim the benefit of the provisions of this Act. On the other hand, if the claim is put forward by a person, who has not a shadow of title to the property, except the fact that he is in possession of the same with the consent of the true owner, it is very difficult to hold in his favour that it is his property which is liable for the payment of the debt. The compromise dated 28 February 1936, has been read out to us. The two sisters of Indrajit Misir did not purport to transfer their life estates in favour of Jurawan Misir. As a matter of fact, having admitted the will, they must be deemed to have admitted that they had not life interest at all. Under this compromise they do not convey their interest in this property to Jurawan. It is at best an admission on their behalf that the will is genuine. This admission cannot bind the mortgagee, Krishna Kumar Tewari, and it was in recognition of this fact that the lower Courts wanted Jurawan Misir to prove his title to the property, and came to the conclusion that he had failed to prove his title. That finding was a finding of fact which could not be disturbed by this Court and was, as a matter of fact, accepted by the learned single Judge. Though in the earlier part of the judgment the learned single Judge having accepted the finding, in the latter part of the judgment, he came to remark that Jurawan Misir had a claim over the property under the will or under the compromise with the sisters of Indrajit Misir, whose recognition of Jurawanja title was enough, and it was not necessary to investigate further in the matter. We cannot agree with this view and we do not think that the benefit of this Act can be given to a person who is neither personally liable under a decree nor has any title to a property, which is liable for the debt due under a decree.