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1946 DIGILAW 227 (ALL)

Sri Narain Dube v. Jang Bahadur

1946-09-26

VERMA, WALIULLAH

body1946
JUDGMENT Verma, J. - This second appeal has arisen out of proceedings for the execution of a decree which had been passed in favour of the Appellant on March 11, 1939. Both the Courts below have dismissed the application for execution. 2. The material facts are these. On January 13, 1935, one Mst. Mandodra made a contract in favour of the Appellant Sri Narain Dube, agreeing to sell to him certain landed property. Instead, however, of fulfilling her promise by executing a deed of sale in the Appellants' favour, she executed a sale deed, only two days later, that is, on January 15, 1935, in favour of four persons, namely, Jang Bahadur Singh, Ramayan Saran Singh alias Surat Singh, Uma Shankar Singh, and a lady whose name we have been unable to dicipher, in respect of the property which she had contracted to sell to the Appellant. The Appellant, on January 12, 1938, instituted a suit for the specific performance of the contract in his favour. He impleaded Mst. Mandodra, Jang Bahadur Singh, Ramayan Saran Singh alias Surat Singh and Uma Shankar Singh as Defendants to this suit. As to the lady, who also figured as a vendee in the sale deed of January 15, 1935, it was stated in the plaint that she had died before the institution of the suit and that the Defendant Jang Bahadur Singh was her sole heir and legal representative. There was no controversy with regard to this matter in the Courts below. The suit ultimately ended in a compromise and on March 11, 1939, a petition was filed on behalf of the parties in which it was stated that the parties had entered into a compromise upon certain terms and it was prayed that a decree be passed in accordance with those terms. The material terms were contained in paragraphs 1 and 2 of the petition. In paragraph 1 it was stated that the parties had agreed that, out of the property which Mst. Mandodra had contracted to sell to Sri Narain Dube, the latter should get a one third share, that Jang Bahadur Singh should get another one-third share and that Ramayan Saran Singh alias Surat Singh and Uma Shanker Singh should get the remaining one-third. Mandodra had contracted to sell to Sri Narain Dube, the latter should get a one third share, that Jang Bahadur Singh should get another one-third share and that Ramayan Saran Singh alias Surat Singh and Uma Shanker Singh should get the remaining one-third. In paragraph 2 it was stated that Jang Bahadur Singh, Ramayan Saran Singh alias Surat Singh and Uma Shanker Singh would, within two weeks, execute at their own cost a sale deed in respect of a one-third share of the property in favour of Sri Narain Dube and would get it registered It was further stated in this paragraph that if the persons aforesaid failed to execute the sale deed and to have it registered, Sri Narain Dube would be entitled to have the sale deed executed and registered by execution of the decree. The Court passed a decree in terms of the compromise. Jang Bahadur Singh, Ramayan Saran Singh and Uma Sharker Singh did not execute the sale deed which they bad agreed to execute in favour of Sri Narain Dube within the time which had beenn allowed by the decree for the purpose or at any other time. Sri Narain Dube, accordingly on February 23. 1942, filed an application for the execution of the decree passed on March 11, 1939. Ramayan Saran Singh alias Surat Singh had died before February 23, 1942, and the deeree-holder Sri Narain Dubr impleaded his sons as parties to the execution proceedings, but did not implead his widow, who admittedly had survived ber husband and was alive. Both the Courts below have agreed in dismissing the application for execution and the decree-holder has brought this second appeal. 3. Both the Courts below have agreed in dismissing the application for execution and the decree-holder has brought this second appeal. 3. The Munsif dismissed the application on three grounds, (1) that the decree sought to be executed was vague as no consideration for the sale deed which had to bo executed was me mentioned in the compromise petition or the decree (2) that the decree-holder was not entitled, in view of the provisions of Section 12 of the United Provinces Regulation of Agricultural Credit Act, 1940, to have this sale deed executed and that the execution of the sale-dead having been thus prohibited by statute, the execution application could not be granted, and (3) that as the decree-holder bad failed to implead Ramayan Saran Singh's widow, who admittedly was an heir under the Hindu Women's Rights to Property Act (No, XVIII of 1937) the application for execution was defective and could not be allowed. 4. The decree-holder appealed and the learned Judge of the Court below, although he did not agree with the Munsif on the first and third points mentioned above, agreed in holding that the execution of the decree was prohibited by Section 12 of the U. P. Regulation of Agricultural Credit Act, 1940. It may be mentioned here that it was admitted in the Courts below, and is admitted here, that the property in question is "protected land" within the meaning of the U P. Regulation of Agricultural Credit Act. 5. Having heard learned Counsel for the parties, we have come to the conclusion that the decision, that he execution of the decree was barred by Section 12 of the U. P. Regulation of Agricultural Credit Act, 1940, is correct, and that the order dismissing the execution application must therefore be upheld. In this view of the matter, we do not consider it necessary to express any opinion with regard to the other two grounds on which the Munsif had based his decision. 6. In this view of the matter, we do not consider it necessary to express any opinion with regard to the other two grounds on which the Munsif had based his decision. 6. It appears from the judgments of the Courts below that the argument which had been addressed to those Courts on behalf of the decree-holder, Sri Narain Dube, was that, act the contract to sell the property had been entered into in 1935 and the decree had been passed in 1939 - that is, before the passing of the U. P. Regulation of Agricultural Credit - Section 12 or any other provision of - the Act was not applicable to the present execution proceedings. Learned Counsel here, has, somewhat. half-heartedly, repeated that argument before us. The argument is, however, obviously incorrect. It cannot be denied, and has not been denied, that it is open to the Legislature to prevent such alienations of such property as it may deem fit. It is clear that the object of the execution application is to have a deed of conveyance brought into existence by which such property, as is mentioned in Section 12 of the Act, would be transferred to the decree holder The attempt to gain that object was made after the Act bad come into force. Reference to the date of the contract or to the date of the decree is, in these circumstances, irrelevant. 7. Learned Counsel, however, has put forward a new argument before us. He has pointed out that Section 12 is in Chapter IV of the Act and that that Chapter is headed "Voluntary Alienation of protected Land'. He has also referred to the preemble to the Act where it is stated that one of the reasons for considering it is expedient to make the Act was "to restrict the voluntary alienation of land". He has emphasised the word "voluntary" and has argued that a deed of transfer which has to be executed in consequence of the enforcement of a decree for the specific performance of a contract to make the transfer is not a deed making a "voluntary alienation". It appears to us, however, that this argument is not well-founded. 8. He has emphasised the word "voluntary" and has argued that a deed of transfer which has to be executed in consequence of the enforcement of a decree for the specific performance of a contract to make the transfer is not a deed making a "voluntary alienation". It appears to us, however, that this argument is not well-founded. 8. After examining the scheme and the various provisions of the* Act, it seems to us clear that the word "voluntary", in the beading of Chapter IV and in the preamble, has been used in the sence of a transfer brought about by act of parties, as opposed to a sale made by the Court in execution of a decree in which case the Court sells the property. Such sales by the Court are dealt with in Chapter III of the Act which is beaded "Execution of Decrees". To say that the execution of a deed of sale, either by the judgment debtor or by the Court in the enforcement of a decree for specific performance, is a sale by the Court, is, in our judgment, to misundestand the nature of a decree for specific performance what such a decree does is that it orders the party concerned to do what it bad promised to do, and it further states that, if the party concerned will fail to obey the order, the Court will execute the deed on behalf of that party. Even where the Court executes such a deed, it merely does what the party had been ordered to do and the transfer is still on behalf of the party, and not by the Court. In this view of the matter, the argument which has been sought to be based on the word "voluntary" cannot be accepted. 9. It, further, appears to us that the very preamble to which learned Counsel has referred makes the matter clear. It will be convenient here to reproduce the relevant portion of the preamble: Whereas it is expedient to prevent excessive borrowing by agriculturists and for this purpose to limit the amount that can be obtained by execution of decrees against agricultural produce and land and to restrict the voluntary alienation of land: Now, therefore, the Governor in exercise of the powers aforesaid is pleased to make the following Act. 10. 10. In our judgment, the first half of the first paragraph quoted above clearly shows that the Act has in contemplation transfers of land in two ways, (1) in execution of decrees for the purpopose of obtaining amounts due on account of borrowings by agriculturists and (2) by the execution of a deed by or on behalf of the owner of the land. The first is dealt with in Chapter III and the second is dealt with in Chapter IV. 11. Even if it be conceded, which we are far from doing, that the language of the Act is not as clear as it might have been, the intention of the Legislature is periectly clear. That intention is to prevent the transfer of certain classes of land. The transfer of such land by attachment and sale in execution of a decree is dealt [1947 with in Chapter III and the transfer by deed, executed by or on behalf of the owner of the land, is dealt with in Chapter IV. It is true that the framers of the Act did not, in so many words, deal with the execution of decrees for the specific performance of contracts to make transfers. The intention, however, being clear, and the true nature of a decree for specific performance being, in our opinion, what we have stated above, it appears to us that it is the duty of the Courts to give effect to the intention of the legislature. Reference may, in this connection, be made to the following observation of their Lordships of the Privy Council in the case of Thakur Raghuraj Singh v. Rai Bahadur Lala Hari Kishan Das 1944 A W R.(P. c.) 33 The words of a remedial statute must be construed, so far as they reasonably admit, so as to secure that the relief contemplated by the statute shall not be denied to the class intended to be relieved. 12. That the United Provinces Regulation of Agricultural Credit Act, 1940, is a statute of the nature mentioned by their Lordships is obvious. 13. In the course of arguments reference was made to the definition of "loan" given in Clause (6) of Section 2 of the Act. We have not, however, been able to understand the argument sought to be based on that definition. 13. In the course of arguments reference was made to the definition of "loan" given in Clause (6) of Section 2 of the Act. We have not, however, been able to understand the argument sought to be based on that definition. The definition had to be given because of the first half of the first paragraph of the preamble quoted above. 14. For the reasons given above, we dismiss this appeal with costs.