Nalini Dasi Alias Nabanalini Dassi Vs.
Kritish Chandra Hazra & Ors  INSC 191 (23 September 1965)
23/09/1965 WANCHOO, K.N.
GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, 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)
Bengal Agriculturists Debtors Act (7 of
1936), s. 37AProperty of debtor in the hands of bona fide purchaser for
value-If can be recovered debtor.
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 theBengal
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 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 decreeholder himself 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-auctionpurchaser. 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 decree 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 underriyat
under certain conditions. [934 D-H; 935 A-B, D; 936 AC]
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 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.
931 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.
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 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 and 22 by installments and made
consequential provisions where the installment 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 there under 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
underraiyat of the debtor and who has been ejected there from 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 decreeholder shall be ejected there from with effect from that
date." Decree-holder is defined in s. 37-A(12) as under :"In this
section the expression 'decreeholder' 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 decreeholder 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
ther eunder 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 there from 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. 37A(8) would only be given in
a case where the property sold in execution is purchased by the decree-holder
himself and 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 whether the decreeholder 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 auction purchaser-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 conditions).Further
on the same reasoning if the auction purchaser 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.37A(8), it is confined
only to the decree-holder-auction-purchaser. 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. 37A, 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 he a 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 valuable consideration (excepting a mortgage) by
registered instrument." This provision would suggest that an application
under 37A(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,
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.