Judgement Consolidated Appeal (No. 35 of 1942), by special leave, from a decree of the High Court (October 12, 1938), which had set aside an order made in execution proceedings by the Civil Judge of Allahabad (October 10, 1936) and had directed that execution of a partition decree, dated February 25, 1926, should proceed. The following facts are taken from the judgment of the Judicial Committee This appeal arose out of execution proceedings taken to enforce a partition decree, dated February 25, 1926. The decree, which was based on an award, dated November 30, 1925, directed the members of one branch of a Hindu family to pay to the respondent Shiva Prasad, who represented another branch, the sum of Rs. 13,68,358 for the purpose of equalizing the values of the allotted shares. The Law. Rep. 70 Ind. App. 209 ( 1942- 1943) Babu Jyoti Bhushan V. Babu Shiva Prasad Gupta 104 question was whether the sum still due and unpaid in respect of that obligation was a " debt " within the meaning of the United Provinces Encumbered Estates Act, 1934 (United Provinces Acts XXV. of 1934 and IV. of 1935), herein referred to as "the Act” or whether, as held by the High Court, the Act had no application thereto. Sect. 2 of the Act was a definition section in the sense indicated by its opening words, and the first of a number of words and phrases therein defined or explained was the word "debt " "2. In "this Act, unless there is anything repugnant in the subject or "context (a) debt includes any pecuniary liability except " a liability for unliquidated damages, . . . ." The branch whose members became by the partition decree judgment-debtors for the money now sought to be recovered was represented by the appellants Jyoti Bhushan and Gokul Chand together with their sons and grandsons. Those two families were, however, divided since 1934. On February 3, 1934, the respondent Shiva Prasad applied to the Civil Judge of Allahabad for execution of the partition decree against the appellants, and obtained an order for the attachment and sale of a house at Allahabad, and for the issue of transfer certificates to other courts in the Province—at Benares, Jaunpur and Gonda and also to a court at Calcutta. On October 5, 1936, Gokul Chand and his descendants applied to the Collector of Benares under s. 4 of the Act requesting that the provisions thereof be applied to him, and the Collector duly forwarded the application to the Special Judge pursuant to s. 6. On October 9 application was made by the same parties to the Civil Judge of Allahabad for a stay of the execution proceedings and recall of the transfer certificates; and on October 10 an order was made by the Civil Judge to that effect. On October 21 the appellant Jyoti Bhushan also applied to the Collector of Benares for the benefit of the Act, and the Collector forwarded his application also to the Special Judge as required by s. 6. In that state of the proceedings the respondent Shiva Prasad, on February 19, 1937, applied to the High Court of Allahabad to set aside or vary the order of the Civil Judge dated October 10, 1936, staying the execution proceedings and recalling the transfer certificates. For some reason that application was made in revision under s. 115 of the Code, but it was treated as an appeal and was referred to a Full Bench. On October 12, 1938, Bennet, Ismail, and Verma JJ. allowed the appeal and directed that execution should proceed. In their joint judgment they said "We do not think that the "Act was intended at all to apply to the subject of partition "among the members of a joint family, and accordingly in "our opinion the subject is one which is repugnant to the "definition of the word debt in s. 2 (a) of the Act" (1). Hence in their view "the present Act does not apply the word " debt to the present case." The learned judges pointed out that under the Act the to decreed in the present case would come in the last of the six classes mentioned by s. 16, being merely an unsecured debt; so that if the property were not sufficient to discharge all the other classes of debt, the result of applying the Act would be, as they put it, "to "deprive the appellant of part of his share in the joint family 1 property/ They did not think that that could ever have been the intention of the legislature. "We do not see why the "Encumbered Estates Act should be introduced in order to "give one member of the family more than his share and to " give another member of the family less than his share " (I. L. R. [ 1939] A. 137-138). 1943. June 28. Sir Thomas Strangman K.C. and A. G. P. Pullan for the appellant Jyoti Bhushan. This decree for money is a " debt " within the meaning of the United Provinces Encumbered Estates Act. "Debt" in s. 2 (a) of the Act includes " any pecuniary liability," and this was unquestionably a pecuniary liability. This debt falls under "other unsecured " debts " in class (6.) of s. 16 of the Act. [Reference was made to Kent County Council v. Lord Gerard ([ 1897] A. C. 633, 639, 642.).] Rewcastle K.C. and R. K. Handoo for Gokul Chand and his descendants, appellants in the second of the consolidated appeals, adopted the above argument. Law. Rep. 70 Ind. App. 209 ( 1942- 1943) Babu Jyoti Bhushan V. Babu Shiva Prasad Gupta 105 Sir Herbert Cunliffe K.C. and Wallach for the respondent Babu Shiva Prasad Gupta. The order of the court below was right, and substantially for the reasons which they gave. This sum which has been directed to be paid for equalization purposes is not a "debt " within the meaning of s. 2 of the Act. If it were held otherwise unfair anomalies might well result; for instance, after the division of family property under which one member gets twice the amount he is entitled to he might postpone the equalization payment and immediately bring this Act into operation. That was never contemplated as a consequence of this legislation. The words of s. 2, "unless "there is anything repugnant in the subject or context" must have been inserted for some definite purpose, and in considering whether there is repugnancy regard must be had to probable consequences. A decision that the Act applies to this obligation may well tend to reduce partitions in many parts of India, for people will be unwilling to take the risk of having a sum found to be due to them on partition if they may be postponed to prior claims under s. 16 of the Act. A decision that the Act applies to this obligation may well tend to reduce partitions in many parts of India, for people will be unwilling to take the risk of having a sum found to be due to them on partition if they may be postponed to prior claims under s. 16 of the Act. [Reference was made to Mottai Meet a v. Abdul Kadir (I. L. R. [ 1939] M. 525.).] Sir Thomas Strangman K.C. replied. July 20. The judgment of their Lordships was delivered by SIR GEORGE RANKIN, who stated the facts above set out, and continued The interpretation of the Act on the point now raised cannot depend on any facts special to the present case, but their Lordships will make some reference to its special features in due course. The first question is whether it can be held that the Act has no application to an obligation imposed or assumed at the time of partition to pay money by way of "owelty"—that is, in order to equalize the division of the property or to make it correspond with the parties shares in the joint property. Their Lordships are unable to accept the conclusion of the Full Bench on this point, and think that such an obligation is a debt in the ordinary meaning of the word and in the meaning indicated by s. 2. The Act contains no exception in respect of such an obligation, and must, in their Lordships view, be applied to the present case. The benefit which the Act confers on a landlord who is subject to private debts, and has requested that its provisions be applied to him, includes a stay of legal proceedings against him and the avoidance of execution processes; the ascertainment by the Special Judge of his debts, which are then ranked in a particular manner for priority ; and the realization of his property and payment of his debts by a process of execution carried out by the Collector. This process is designed to preserve to the debtor landlord, so far as possible, his pro prietary interests in land by meeting his debts in the first instance, and so far as possible, out of other property or by granting mortgages. Where these methods do not suffice provision is made for further measures. This process is designed to preserve to the debtor landlord, so far as possible, his pro prietary interests in land by meeting his debts in the first instance, and so far as possible, out of other property or by granting mortgages. Where these methods do not suffice provision is made for further measures. These have been altered and added to since 1936, when the present case arose, and they need not be here detailed. It is enough to say that the Act involves a species of administration of the debtors property more favourable to the debtor than the ordinary law of insolvency provides, and that while debts due on account of goods supplied and services rendered rank before other unsecured debts, the ordinary unsecured creditor comes last. If the Act is to be regarded as a new provision it seriously interferes with the ordinary rights of persons who have given credit to the landlord. The particular reason for which the credit was given may make the hardship greater or less but it is at least clear that the Act makes no discrimination between debts according as they were incurred before or after it was passed. Again, it is always possible to put the case of a landlord obtaining credit on one day and claiming the benefit of the Act on the next. Even so, it may doubtless be considered that it would be wise to exempt from the operation of the Act a number of matters. Indeed, the High Court make mention (inter alia) of maintenance, trust money; trade debts, rent of houses or shops, and somewhat incautiously say " There are "no doubt many other amendments which might be made, "and in our opinion the present case is one which should not "come under this sub-section. Instead of specifying all the "matters which should be excepted from the operation of this " definition the legislature has made provision for the discretion "of Law. Rep. 70 Ind. App. 209 ( 1942- 1943) Babu Jyoti Bhushan V. Babu Shiva Prasad Gupta 106 courts in these words unless there is anything repugnant " in the subject or context/ " (I. L. R. [ 1939] A. 138.). Rep. 70 Ind. App. 209 ( 1942- 1943) Babu Jyoti Bhushan V. Babu Shiva Prasad Gupta 106 courts in these words unless there is anything repugnant " in the subject or context/ " (I. L. R. [ 1939] A. 138.). Their Lordships express no opinion on the policy of the Act or the desirability of the suggested exceptions, but they cannot omit to observe that difficulties might arise if processes of execution for certain kinds of debt were to go on at the same time as the processes of realization contemplated by the Act. On this point analogies taken from insolvency law and the exception made by the Act for a liability for unliquidated damages may prove to be deceptive. But with all respect to the learned judges of the High Court, the words which they stress and which govern all the clauses in s. 2, are not intended to entrust the courts with a discretion, and do not justify them in cutting down the ordinary meaning of the word "debt," or the phrase "any "pecuniary liability except a liability for unliquidated "damages," on the ground that they do not think that a particular case should come under the Act. This is a question, and a debateable question, of policy, and not a question of something in the subject or context being repugnant to what is expressly stated to be the meaning of the word. In the United Provinces, arbitrators, commissioners of partition, and courts, before making an unequal partition and providing for payment of money to equalize the shares, would do well to consider the provisions of the Act, and in all Provinces attention must be given in such cases to the risk that the payment ordered may not be made. For lack of proper care on this point a scheme of partition may work injustice, being effective in part and in part failing of effect. The time of partition is the time to provide against this. Where land is unequally divided, it may be possible to give a charge on the portion allotted in severalty to one sharer for the money which he is directed to pay to a co-sharer; or the money may be made payable at the time of partition ; or the transaction may be put in the form of a future sale or of an option to buy some part of the land. There are doubtless other methods which may be taken in a proper case to exclude the element of credit. But if credit be given and no security of any kind provided for, there is always a risk that the property allotted in severalty may be dealt with or taken in execution and the co-sharer left unpaid. The ordinary law of insolvency may have that result—an unfortunate result, no doubt, and one which defeats the expectations with which the partition was made. But if the debtor is a landlord and is involved in debt so that administration—partial or total—of his property has become necessary, it is far from plain that an unsecured creditor should have preferential treatment on that account, or should be allowed to ignore the liquidation and attack the debtors property on his own behalf. An Act which is expressed to say the contrary cannot be interpreted as though the contrary were "repugnant to the subject or "context." The assets partitioned in the present case included, besides zemindari and house property and government securities, the assets of a firm with an extensive money-lending business. It may well have been undesirable to have a complete division of the business assets and very necessary to provide against the sudden withdrawal of a large amount of capital. The partition award of 1925 contained elaborate provisions postponing in certain events the liability which it imposed on that branch of the family which the appellants now represent. It would seem that in 1934 the sum outstanding amounted to more than nine lacs, and in 1936 to more than eleven lacs. This debt, though large, and though postponed, was unsecured, and the assets which were allotted to the appellants branch became the property of that branch in severalty and, indeed, its business assets. Such a provision entailed manifest risk of non-payment, though it may well have been fair enough in all the circumstances and the best arrangement that could be devised. The respondent Shiva Prasad may be in no way to blame for the delay. But in a competition between creditors of the appellants in 1936, the claim that such a debt cannot be treated like any other unsecured debt seems to have little force. The respondent Shiva Prasad may be in no way to blame for the delay. But in a competition between creditors of the appellants in 1936, the claim that such a debt cannot be treated like any other unsecured debt seems to have little force. It has been drawn to their Lordships attention that though the appellant Jyoti Bhushan was a party to the appeal brought in the High Court, he never obtained a separate order from the Civil Judge staying execution proceedings against his branch, but no point was made of this in the High Court, and there is Law. Rep. 70 Ind. App. 209 ( 1942- 1943) Babu Jyoti Bhushan V. Babu Shiva Prasad Gupta 107 no substance in the objection. Their Lordships agree that the transfer certificate sent to the court at Calcutta was rightly recalled by the Civil Judge of Allahabad as well as those sent to courts within the Province. Their Lordships will humbly advise His Majesty that these consolidated appeals should be allowed, the decree of the High Court, dated October 12, 1038, set aside, and the order of the Civil Judge of Allahabad, dated October 10, 1936, restored. The respondent Shiva Prasad will pay the appellants- costs in the High Court and one set of costs in respect of, this appeal. There will be a set-off of such costs against the sums owing under the partition decree.