Full Judgment Text
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PETITIONER:
NALINI DASI ALIAS NABANALINI DASSI
Vs.
RESPONDENT:
KRITISH CHANDRA HAZRA AND OTHERS
DATE OF JUDGMENT:
23/09/1965
BENCH:
WANCHOO, K.N.
BENCH:
WANCHOO, K.N.
SUBBARAO, K.
SUBBARAO, K.
SHAH, J.C.
SIKRI, S.M.
GAJENDRAGADKAR, P.B. (CJ)
HIDAYATULLAH, M.
SHAH, J.C.
SIKRI, S.M.
CITATION:
1966 AIR 1295 1966 SCR (2) 457
CITATOR INFO :
R 1976 SC 313 (10,12,13,19,50,51,52,53)
RF 1976 SC2372 (2)
R 1979 SC1588 (6)
D 1985 SC1143 (3,5)
ACT:
Bengal Agriculturists Debtors Act (7 of 1936), s. 37A-
Property of debtor in the hands of bona fide purchaser for
value-If can be recovered debtor.
HEADNOTE:
The mortgagee of the property in dispute bad obtained a
mortgage decree and in execution purchased it. in 1942, he
sold the property to the appellant. After the introduction
of s. 37-A into the- Bengal Agricultural Debtors Act, 1936,
by the Amendment Act of 1942, the respondents who were the
owners of the property, applied under the section, to the
debt Settlement Board, for getting back possession of the
property. They succeeded in their application and obtained
possession, but their possession was disturbed by the
appellant. Therefore, ’the respondents field ,he suit to
remove the cloud on their title and to obtain possession in
case it was found that they were not in possession. The
suit was decreed by the trial court, but the appellate court
allowed he appeal. The High Court on further appeal,
restored the decree of the trial court.
In his appeal to this Court, the appellant contended that,
(1) the Board had no jurisdiction in the matter as the
decree, in the mortgage suit was for more than Rs. 5,000,
and (ii) Section 37-A did not apply to a bona fide purchaser
for value from the auction purchaser.
HELD : (i) The contention -,is to jurisdiction on the ground
of value should be rejected as the point was not taken in
the trial court, for, if it had been raised, the respondents
would have been able to show that, even if the deal was over
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Rs. 5,000, the previous sanction of the Collector had been
taken by the Board before it dealt with the matter as
permitted by the proviso to r. 144 framed under the Act.
[932 F]
(ii) Reading the wide language used in s. 37A.(8) with s.
37A,(1)(c), it is clear that once the sale is set aside,
even alienees from ’he decreeholder would be liable to be
ejected and would be covered by the words "any person" used
in the latter part of s. 37A(8), unless they were alience,
of the four kinds mentioned in s. 37A(1) (c). [936 E]
When an award in favour of the debtor was made under s.
3SA(5) and where a copy of the award was presented to the
Civil Court or Certificate-officer at those order the
property was sold, s. 37-A(8) imperatively enjoins on the
Civil Court or the Certificate Officer to -,set aside the
sale. it follows that where a sale is set aside, whoever may
have purchased the property in the sale-whether the decree-
holder him self or somebody else -will have to give up
possession. for the right of the person who hid purchased
the property. to remain In possession, would only exist so
long as the sale subsists. On the same reasoning if the
auction-purchaser, whether he be the decree-holder or
somebody else, his parted with the property subsequently in
favour of any person that person would be equally liable to
ejectment, for his right to remain in possession only flows
from the sale which is ordered to-be set aside. Further,
The word ’decree holder" has been given an inclusive
definition and so, it cannot be said
Sup. C.1.165-16
930
that it is confined only to the decree-holder-auction-
purchaser. Also, under s. 37-A(1)(c) only four kinds of
transfers, including bona fide transfers for valuable
consideration (excepting a mortgage) before 20th December
1939, are excepted, and so an application could be made
under the section even where there was an alienation of any
kind by the decre holder, so long as the alienation was
after 20th December 1939. Therefore, there is no doubt that
s. 37A(8) intends that the sale should be set aside whoever
may be auction-purchaser, and it also intends that after
setting aside the sale the property should be delivered back
to the debtor, whoever may be in possession thereof at the
time of the delivery back, except in the case of an under-
riyat under certain conditions. [934 D-H; 935 A-B, D; 936 A-
C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 901 of
1963.
Appeal by special leave from the judgment and decree dated
December 22, 1959, of the Calcutta High Court in Appeal from
Appellate Decree No. 1039 of 1954.
Niren De, Additional Solicitor-General, B. P. Singh and
P. K. Chakravarti, for the appellant.
D. N. Mukherjee, for respondent Nos. 1 to 4.
Sukumar Ghose, for respondent No. 10.
The Judgment of the Court was delivered by
Wanchoo J.-This appeal by special, leave raises a question
as to the interpretation of S. 37-A of the Bengal
Agricultural Debtors Act, No. VII of 1936 (hereinafter
referred to as the Act). The respondents brought a suit in
the court of the Second Munsif, Burdwan for a declaration
that they were entitled to the property in dispute, for
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confirmation of their possession thereof and for a permanent
injunction restraining the appellant from interfering with
their possession. In the alternative they prayed for
delivery of possession to them of the property in dispute in
case it was found that they were not in possession. The
case of the respondents was that the property in dispute
belonged to one Jatindra Mohan Hajra, who was the father of
three of the respondents. He mortgaged the property to Kali
Krishna Chandra who was a defendant in the suit. Kali
Krishna Chandra obtained a mortgage decree in the Court of
the Subordinate Judge Burdwan and in execution of the said
decree got the mortgaged property sold, purchased the
property in auction sale and thus came into possession
thereof in November 1937. This happened before S. 37-A was
introduced in the Act by the Bengal Agricultural Debtors
(Amendment) Act, 1942, (No. 11 of 1942). After the
introduction of S. 37-A in the Act, the respondents applied
thereunder for getting back possession of the property.
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the meantime it appears that Kali Krishna Chandra sold the
property to the present appellant in June 1942. That is how
she was made a party to the proceedings under s. 37-A of the
Act. The respondents succeeded in their application under
s. 37-A of the Act and obtained possession of the property
in suit in November 1947. The respondents case further was
that their possession was disturbed by the appellant
thereafter and they had to go to the criminal court in that
connection. But the criminal case resulted in acquittal and
consequently the respondents brought the present suit in
order to remove the cloud on their title and to obtain
possession in case it was found that they were not in
possession.
The suit was resisted by the appellant on a number of
grounds. In the present appeal, however, learned counsel
for the appellant has raised only two -rounds before us,
namely-(i) that the Debt Settlement Board (hereinafter
referred to as the Board) had no jurisdiction in the matter
as the decree in the mortgage-suit was for more than Rs.
5,000, and (ii) that s. 37-A of the Act did not apply to a
bona fide purchaser for value from the auction purchaser.
We shall confine ourselves therefore to these two points
only.
The Munsif who tried the suit held that s. 37-A was
available against a bona fide transferee for value also.
But the question of jurisdiction of the Board on the ground
that the amount involved was more than Rs. 5,000 was not
raised before the Munsif and so there is no finding on that
aspect of the matter in the Munsif’s judgment. Holding that
s. 37-A applied to bona fide transferees for value also, the
Munsif decreed the suit.
Then there was an appeal by the appellant which was decided
by the Subordinate Judge. It was in that appeal that it was
urged for the first time that the Board had no jurisdiction
inasmuch as the amount involved was over Rs. 5,000. That
objection was however over-ruled by the Subordinate Judge on
the ground that the amount involved was only Rs. 4,044/8/-.
But the Subordinate Judge seems to have held that a bona
fide transferee for value cannot be affected by the
provisions of s. 37-A. He therefore allowed the appeal and
dismissed the suit.
Then followed an appeal to the High Court. The High Court
considered the two questions, which we have set out above.
On the question of jurisdiction the High Court held that the
amount of debt involved was only Rs. 4,044/8/- and therefore
the Board had jurisdiction. On the question whether bona
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fide transferees for value were bound, the High Court
reversed the
932
view taken by the Subordinate Judge and held that such
transferees were also covered by s. 37-A. It therefore
allowed the appeal and restored the decree of the Munsif but
ordered parties to bear their own costs throughout. In the
present appeal by special leave, the appellant raises the
same two points before us.
We shall first consider the question of the jurisdiction of
the Board. It is urged in this connection that the very
application made by the respondents under S. 37-A shows that
the amount of decretal dues was Rs. 5,841 and therefore the
Board had no jurisdiction. We are of opinion that this
point as to jurisdiction should have been raised at the
earliest possible stage in the Munsif’s court and as it was
not so raised it should not have been permitted to be raised
for the first time in the Sub-ordinate Judge’s court in
appeal. Rule 144, framed under the Act, which relates to
jurisdiction of the Board, provides that the maximum amount
of the sum total of all debts due from a debtor which can be
dealt with under the provisions of Act shall be Rs. 5,000.
There is however a proviso to this rule to the effect that
with the previous sanction in writing of the Collector, a
Board may deal with an application if the sum total of all
debts due from the debtors exceeds Rs. 5,000 but does not
exceed Rs. 25,000. it is unnecessary for us to decide in the
present appeal whether the High Court was right in holding
that the debt due was only Rs. 4,044/8/- and not Rs. 5,841,
which was shown to be the amount of decretal dues in the
application under s. 37-A. It is enough to point out that
if this point had been raised in the trial court, the
respondents would have been able to show that even if the
debt was over Rs. 5,000, permission of the Collector as
required by the proviso had been taken by the Board before
it dealt with the matter. It is not as if the Board has no
jurisdiction above Rs. 5,000 at all. Ordinarily the Board
has jurisdiction upto Rs. 5,000 but with the sanction of the
Collector in writing its jurisdiction can go upto Rs.
25,000. Therefore if any party wishes to urge that the
Board had no jurisdiction because the amount of the debt was
over Rs. 5,000, it must urge it in the trial court in order
to give an opportunity to the other party to show that even
if the amount due was over Rs. 5,000 the sanction of the
Collector had been obtained by the Board. As the point was
not taken in the trial court in this case, we are not
prepared to go into the question whether the total debt due
in the present case was over Rs. 5,000 or not, for the
respondents had no opportunity of showing that even if the
debt was over Rs. 5,000 the sanction of the Collector had
been obtained. We
933
therefore reject the contention as to jurisdiction on the
ground that the point was not taken in the trial court.
This brings us to the principal argument urged in this case
that s. 37-A does not apply to bona fide transferees for
value. now the Act was an ameliorative measure for the
relief of indebtedness of agricultural debtors and the
preamble of the Act shows that it was passed because it was
expedient to provide for the relief of indebtedness of
agricultural debtors. For that purpose it established
Boards and also provided for reduction of the amount due
under certain circumstances by ss. 18 and 22 thereof. It
also made other provisions with respect to recovery of
amounts due within a period of 15 to 20 years under ss. 19
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and 22 by instalments and made consequential provisions
where the instalment was not paid. Section 37-A was
introduced in the Act in 1942 and provided for certain
reliefs to an agricultural debtor where any immovable
property of such person had been sold after August 12, 1935
in execution of a decree of a civil court or a certificate
under the Bengal Public Demands Recovery Act, 191.3, under
certain conditions. It allowed the debtor to apply for
relief thereunder to the Board within one year of the coming
into force thereof. On receipt of such application, the
Board had first to decide whether the application was
maintainable and had fulfilled the conditions subject to
which such an application could be made. Thereafter the
Board had to proceed in accordance with sub-ss. (4) to (7)
and make an award under sub-s. (5). After the award had
been made under sub-s. (5), we come to
s.37-A (8) which may be read in extenso :
"The debtor may present a copy of the award
made under sub-section (5) to the Civil Court
or Certificate officer at whose order the
property was sold, and such Court or
Certificate-officer shall thereupon direct
that the sale be set aside, that the debtor
together with any person who was in possession
of the property sold or any part thereof at
the time of delivery of possession of such
property to the decree-holder as an under-
raiyat of the debtor and who has been ejected
therefrom by reason of such sale be restored
to possession of the property with effect from
the first day of Baisakh next following or the
first day of Kartic next following, whichever
is earlier, and that any person who is in
possession of the property other than a person
who was in possession of the property or part
thereof as an under-raiyat of the debtor at
the time of delivery of
934
possession of such property to the decree-
holder shall be ejected therefrom with effect
from that date."
Decree-holder is defined in s. 37-A(12) as under :-
"In this section the expression ’decree-
holder’ includes the certificate-holder and
any person to whom any interest in the decree
or certificate is transferred by assignment in
writing or by operation of law."
The contention on behalf of the appellant is that sub-s. (4)
of S. 37-A speaks only of the applicant before the Board,
the decree-holder and the landlord of the applicant in
respect of the property sold in the case where the decree-
holder is not such landlord and therefore a bona fide
transferee for value from the auction-purchaser cannot be
ejected under s. 37-A (8) and it is only the decree-holder
who can be ejected thereunder if he is still in possession
of the property. Now if we read the words of s. 37-A (8),
that provision clearly lays down that any person who is in
possession of the property (except an under-riyat under
certain conditions) shall be ejected therefrom with effect
from that date. The words "any person" used in s. 37-A(8)
are of very wide import and would include even a bona fide
transferee for value of the property sold. If the argument
for the appellant were to be accepted, the benefit of s. 37-
A(8) would only be given in a case where the property sold
in execution is purchased by the decree-holder himself and
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he remains in possession upto the time the agricultural
debtor asks for relief under s. 37A(8). We do not think
that the legislature could have intended that the relief
under S. 37-A(8) should be given only in this limited class
of cases. In any case if that was the intention, the
legislature would not have used the words which we have
mentioned above and which clearly imply that any person in
possession is liable to be ejected under s. 37-A(8). This
would also seem to follow from another part of s. 37-A(8)
which imperatively enjoins on the civil court or the
certificate-officer to set aside the sale. It follows from
this that where a sale is set aside, whoever may have
purchased the property in the sale wheather the decree-
holder himself or somebody else-will have to give up
possession, for the right of the person who had purchased
the property to remain in possession would only exist so
long as the sale subsists. Once the sale is set aside, the
auctionpurchaser-whether he be the decree-holder or somebody
else -cannot remain in possession; and this is enforced by
the latter part of s. 37-A(8) which lays down that any
person in possession would be ejected (except an under-riyat
tinder certain condi-
935
tions).Further on the same reasoning if the auctionpurchaser
whether he be the decree-holder or somebody else-has parted
with the property subsequently, that person would be equally
liale to ejectment, for his right to remain in possession
only flows from the sale which is ordered to be set aside
under the first part of s. 37-A(8). If the intention had
been that a bona fide purchaser for value other than the
decree-holder-auction-purchaser would be out of the purview
of s. 37-A(8), we should have found a specific provision to
that effect in that sub-section by the addition of a proviso
or in some other suitable manner. Further it may be pointed
out that the word "decree-holder" in sub-s. (12) has been
given an inclusive definition and it cannot therefore be
said that when the word "decree-holder" is used in s.37-
A(8), it is confined only to the decree-holder-auction-pur-
chaser. There is no doubt that s. 37-A(8) is somewhat
clumsily drafted but there is equally no doubt that it
intends that the sale should be set aside whoever may be the
auction-purchaser and it also intends that after setting
aside the sale the property should be delivered back to the
debtor whoever may be in possession thereof at the time of
this delivery back (except in the case of an under-riyat
under certain conditions).
We may in this connection refer to sub-s. (1) (c) of s. 37-
A, which would show what the intention of the legislature
was in spite of the clumsy drafting of s. 37-A(8). Clause
(c) lays down one of the conditions which has to be
satisfied before an application under s. 37-A(1) can be
made. It reads thus :-
"(c) if the property sold was in the
possession of the decree-holder on or after
the twentieth day of December 1939 or was
alienated by the decree-holder before that
date in any manner otherwise than by-
(i) a bona fide gift by a heba whether by
registered instrument or not, or
(ii) any other bona fide gift by registered
instrument, or
(iii) a bona fide lease for valuable
consideration whether by registered
instrument, or not, or
(iv) any other bona fide transfer for
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valuable consideration (excepting a mortgage)
by registered instrument."
This provision would suggest that an application under 37-
A(1) can be made if the property was in possession of the
936
decree-holder on or after December 20, 1939. In this case
that condition was fulfilled and therefore the application
under S. 37-A(1) would lie. Further the latter part of cl.
(c) shows that only certain alienations by the decree-holder
were excepted for the purpose of deciding whether an
application under s. 37-A(1) could be made. These
exceptions require firstly that the alienation by the
decree-holder should have been made before December 20,
1939. Further even so far as alienations before December
20, 1939 were concerned, exceptions were only of the four
kinds mentioned above. These include bona fide transfers
for valuable consideration (excepting a mortgage) before
December 20, 1939. So an application could be made even
where there was an alienation by the decree-holder of any
kind so long as the alienation was after December 20, 1939.
Thus the only exceptions to which S. 37-A would not apply
would be alienations by the decree-holder before December
20, 1939 of the four kinds specified in cl. (c). The
present alienation was by the decree-holder after December
20, 1939 and therefore the appellant cannot say that she is
not covered by s. 37-A because she was a bona fide
transferee for value. Reading therefore the wide language
used in S. 37-A(8) with s. 37-A (1) (c), it is clear that
once the sale is set aside, even alienees from the decree-
holder would be liable to be ejected and would be covered by
the words "any person" used in the latter part of S. 37-A(8)
unless they were alienees of the four kinds mentioned in s.
37-A(1)(c). We are therefore of opinion that the High Court
was right in holding that persons like the appellant were
covered by S. 37-A of the Act.
The appeal therefore fails and is hereby dismissed. In the
circumstances we order parties to bear their own costs.
Appeal dismissed.
937