Jula Ram v. Munga Devi — 1962 DIGILAW 131 (ALL)

JUDGMENT V.G. Oak, J. - This second appeal by defendants arises out of a suit for the recovery of arrears of maintenance allowance. Smt. Munga Devi brought the suit against Makund Ram on the following allegations. 2. The plaintiff is Makund Ram's brother's widow. On 27.3.1940, Makund Ram executed a registered deed undertaking to pay the plaintiff Rs. 400 per annum for her maintenance allowance. Under the deed a charge on Makund Ram's zamindari property was created for satisfaction of the plaintiff's maintenance allowance. Maintenance allowance remained unpaid for three years from 1-1-1953. The plaintiff, therefore, brought the suit to recover a sum of Rs. 1298-4-0, including Rs. 1200 as arrears of maintenance allowance and Rs. 98-4-0 as interest. 3. Makund Ram died shortly after the filing of the suit. The suit proceeded against his sons, Tula Ram and Ram Gopal. Various pleas were raised in defence. One of the pleas was that the defendants were entitled to a reduction of their liability under the provisions of the U.P. Zamindars Debt Reduction Act, 1960 (Act No. XV of 1953-hereafter referred to as the Act). 4. The learned Munsif, Bijnor held that the defendants were not entitled to any reduction of their liability under the act. Ultimately, the court passed in plaintiffs favour a decree for Rs. 1200 only with costs. It was made clear in the decree that the defendants were not personally liable for the amount. The liability was confined to the assets of Makund Ram deceased in the hands of his sons. 5. The defendants appealed. The appeal was dismissed by the learned Civil Judge, Bijnor. The defendants came to this Court in Second appeal. When the Second appeal was argued before a learned Single Judge of this Court, he noticed that the Second Appeal involved some difficult question of law. He, therefore, referred the Second appeal to a Division Bench. 6. In order to appreciate the various points urged by the learned counsel for the parties, it will be convenient to refer to the important provisions of the Act. Sec. 2 of the Act contains a number of definitions. The term `debt' has been defined in Cl. He, therefore, referred the Second appeal to a Division Bench. 6. In order to appreciate the various points urged by the learned counsel for the parties, it will be convenient to refer to the important provisions of the Act. Sec. 2 of the Act contains a number of definitions. The term `debt' has been defined in Cl. (f) of Sec. 2:- " "Debt" means an advance in cash or in kind, and includes any transaction which is in substance a debt, but does not include an advance as aforesaid made on or after the first day of July, 1952, or a debt due to . . . . . . . . . ". The term `mortgage' has been defined in Cl. (i) of Sec. 2:- " "Mortgage" with its cognate expressions shall have the meaning assigned to it in the Transfer of Property Act, 1882, and includes a charge as defined in Section 100 of that Act." The term "secured debt" has been defined in Cl. (m) of Sec. 2:- "Second debt" means a debt secured by mortgage of an estate or an estate and other immovable property." Sec. 3 provides for reduction of debt at the time of passing of decree. The principal question for decision in this Second appeal is whether the defendant-appellants are entitled to the benefit of Section 3 of the Act or not. Sec. 4 of the Act confers on the Court powers to reduce debts after passing of decree. Sec. 10 deals with maintenance allowance, and runs thus:- "The provisions of this Act shall mutatis mutandis apply to a suit or decree for recovery of arrears of Guzara or maintenance allowance in which any estate whether alone or along with other property is mortgaged or is otherwise charged under any law, decree, agreement or document, as if the Guzara or the maintenance allowance were a debt, and the whole of the immovable property so mortgaged or charged shall, for purposes of Secs. 3, 4 and 5 be deemed to be mortgaged property . . . . . . . ." 7. Mr. Shanti Bhushan appearing for the appellants contended that in view of Section 10 of the Act, the defendants are entitled to the benefit of Section 3 of the Act. On the other hand, Mr. 3, 4 and 5 be deemed to be mortgaged property . . . . . . . ." 7. Mr. Shanti Bhushan appearing for the appellants contended that in view of Section 10 of the Act, the defendants are entitled to the benefit of Section 3 of the Act. On the other hand, Mr. Satish Chandra appearing for the plaintiff-respondent contended that, the liability under discussion is not maintenance allowance at all; to Section 10 of the Act has no application. It, therefore, becomes necessary to examine the question whether the defendants are liable to pay a maintenance allowance. 8. Mr. Satish Chandra relied upon a decision by a Division Bench of this Court in Smt. Dulari Devi and Sr Rajeshwari Narain Chaddha v. Smt. Manik Devi and others, Sp. A. No. 41 of 1961. D/d. 30.3.1962. The facts of that case were these. Smt. Manik Devi was Rai Mahabir Narain Chaddha's wife. He executed a deed of gift in favour of certain persons in respect of his entire zamindari and house property on the condition that the donees paid him and his wife Smt. Manik Devi a sum of Rs. 200 per month each, and in the event of either of them dying, Rs. 400 per month to the survivor. The question for consideration before the Court was whether there was a liability to pay any maintenance allowance under that transaction. On this point, the learned Judges observed on page 9 of the judgment thus:- " In this case the payment of allowance was in the nature of a consideration for the gift and cannot be treated to be a debt or maintenance allowance in the ordinary sense of those words. The debts or maintenance allowance in respect of which the Act provides reliefs are debts which a landlord takes from another person against the security of his property or maintenance allowance which he has to pay to other because he owns certain properties in his own right and for that reason has a liability to maintain others. In the present case the donees did not own the property belonging to the donor in their own right but by virtue of a transfer made to them on certain conditions which included the payment of monthly allowance to the donor and his wife. In the present case the donees did not own the property belonging to the donor in their own right but by virtue of a transfer made to them on certain conditions which included the payment of monthly allowance to the donor and his wife. The words "Guzara" or "maintenance allowance" as used in the Act mean a payment made to another by the owner of an estate because he is under a legal liability to make the payment and cannot include the payment of an amount which becomes due under the contract by virtue of which he receives the estate over which he has no claim whatsoever. In other words, the liability to make payments must be incidental to the right to won the property and must not flow from a contract by which a person transfers to a zamindar that property on the condition that he would make him a monthly payment. Thus, the amount that is paid must be for the upkeep or livelihood or the maintenance of a person whom the zamindar is bound to maintain under the law and must not be correlated to the acquiring of a property of another on the condition that as a consideration of the transfer he would pay to the transferor a certain monthly sum." 9. The plaintiff-respondent in the present case brought the suit to recover arrears of maintenance allowance. In the written statement also the liability was described as a maintenance allowance. The trial proceeded on the footing that a certain amount was payable by the defendants to the plaintiff as maintenance allowance. The nature of the claim was not disputed either before the trial Court or before the lower appellate court. We were, therefore, reluctant to entertain in Second appeal the point that the liability does not amount to maintenance allowance at all. Nonetheless, we perused the registered deed dated 27-3-1940 in order to satisfy ourselves that the defendants are liable to pay maintenance allowance to the plaintiff. 10. In the document dated 27-31940 Makund Ram stated that he was in possession of the zamindari share inherited by Smt. Munga Devi from her late husband. Makund Ram promised to pay her maintenance for life. The document uses the expression `NanNafqa'. 10. In the document dated 27-31940 Makund Ram stated that he was in possession of the zamindari share inherited by Smt. Munga Devi from her late husband. Makund Ram promised to pay her maintenance for life. The document uses the expression `NanNafqa'. On examining the document as a whole, we are satisfied that Makund Ram did undertake to pay Smt. Munga Devi a maintenance allowance at the rate of Rs. 400 per annum during her life-time. 11. Since the defendants are liable to pay maintenance allowance, they are entitled to the benefit of Section 10 of the Act. We have quoted the definition of debt contained in Cl. (f) of Section 2 of the Act. Mr. Shanti Bhushan contended that the matter is completely covered by Section 10 of the Act, and Cl. (f) of Section 2 of the Act has no application. We do not agree. The broad principle laid down in Section 10 of the Act is that, for purposes of the Act, maintenance allowance is to be looked upon as a debt, although there may be some difficulty in treating maintenance allowance as a debt in the ordinary sense. We must, therefore, examine the provision of Section 10 of the Act along with the definition of debt contained in Cl. (f) of Section 2 of the Act. Although the defendants liability is maintenance allowance under Section 10 of the Act, we have still to consider whether it is a debt as defined in Cl. (f) of Section 2 of the Act. 12. If Section 10 is to be read by itself, there is no doubt that maintenance allowance is a debt. But Mr. Satish Chandra tried to bring the present case within the exception contained in Cl. (f) of Section 2 of the Act. That exception is in these terms:- "but does not include an advance as aforesaid made on or after the 1st day of July, 1952." We have, therefore, to consider whether the debt under consideration was in the nature of an advance made on or after the 1st day of July, 1952. 13. Mr. Satish Chandra pointed out that, the present claim relates to maintenance allowance for 1953 and subsequent years. He, therefore, contended that the debt under consideration was in the nature of an advance subsequent to 1952. We do not think so. 13. Mr. Satish Chandra pointed out that, the present claim relates to maintenance allowance for 1953 and subsequent years. He, therefore, contended that the debt under consideration was in the nature of an advance subsequent to 1952. We do not think so. It is necessary to point out that, under the definition of Sec. 2(f) of the Act, debt includes any transaction which is in substance a debt. In the present case the defendants liability to pay maintenance allowance arose out of Makund Ram's agreement entered into in the year 1940, and not of 1953 or any subsequent year. In 1940. So, the transaction under consideration is one of 1940, and not of 1953 or any subsequent year. In 1940 Makund Ram undertook a recurring liability. The liability arose from year to year. But it arose out of a transaction entered into by Makund Ram long before 1952. The present case, therefore, does not fall within the exception contained in Cl. (f) of Section 2 of the Act. The maintenance allowance involved in the present case amounts to a debt as defined by Cl. (f) of Section 2 of the Act. 14. As already mentioned, the main question for consideration in this second appeal is whether the defendants are entitled to the benefit of Section 3 of the Act. In support of his contention that Section 3 is not applicable, Mr. Satish Chandra pointed out that the plaintiff has made a simple money claim. She has made no attempt to employee any mortgage or charge on immovable property. It was therefore urged that Section 3 cannot apply. 15. Mr. Satish Chandra relied upon a decision by a Division Bench of this court in Jhamola Kunwar v. Kailash Chandra Jain, 1962 ALJ 195. In that case a judgment-debtor claimed the benefit of Section 4 of the Act for reduction of the decretal amount. The court held that the judgment-debtor was not entitled to any reduction under Section 4 of the Act. The court observed on page 200 thus:- "As we read Section 10, we do not find anything in it to justify the dispensing with the essential requirement of sub-sec. (2) of Section 4, that the decree whose amount can be reduced must be a decree charging some property. The court observed on page 200 thus:- "As we read Section 10, we do not find anything in it to justify the dispensing with the essential requirement of sub-sec. (2) of Section 4, that the decree whose amount can be reduced must be a decree charging some property. We are unable to read Section 10 as laying down that in all cases of decrees for arrears of Guzaras or allowances if some property stood charged for the Guzara or allowance under any law, decree, agreement or document, the amount is to be reduced by the application of Section 4 even though the decree whose amount is sought to be reduced does not itself provide for the enforcement of the charge or mortgage and is only a simple money decree." It will be seen that the judgment-debtor's claim was negatived by the court on the short ground that there was only a simple money decree in that case. 16. Having so held, the learned Judges went on to discuss the general scheme of the Act. It was further observed on page 200 :- ".......The act was intended to apply only to those debts of the zamindars which were sought to be realised by the sale of their zamindari property or from the compensation and rehabilitation bonds which they had received in lieu of their zamindari property. The Act does not appear to be applicable in respect of simple money decrees or debts which are sought to be realised by proceeding against non-zamindari properties of the zamindars or for the realisation of which no proceedings are being taken against the compensation and rehabilitation bonds. Sec. 3 of the Act applies to suits pending when the Act was enforced or to suits filed after that date. By its terms it applies to suits relating to secured debts but its various provisions make it clear that the amount of claim is to be reduced with reference to the mortgaged property. The words relating to a `secured debt' should be interpreted keeping that fact in view." 17. The passage quoted above no doubt lends support to the respondents, contention that, the defendants are not in the present case entitled to the benefit of Section 3 of the Act. The words relating to a `secured debt' should be interpreted keeping that fact in view." 17. The passage quoted above no doubt lends support to the respondents, contention that, the defendants are not in the present case entitled to the benefit of Section 3 of the Act. But it is to be noted that, the scope of Section 3 of the Act did not directly come up for discussion in Jhamola Kunwar's case, 1962 A.L.J. 195. We do not find ourselves bound by the obiter dicta quoted above. We proceed to discuss the true scope of Section 3 of the Act by examining the language of the section itself. Sec. 3 of the Act runs thus:- "(1) Notwithstanding anything in any law, agreement or document, in any suit to which this Act applies relating to a secured debt, the Court shall, after the amount due has been ascertained, but before passing a decree, proceed as hereinafter stated. (2) Where the mortgaged property consists exclusively of estate, and such an estate has been acquired under the provisions of the U.P. Zamindari Abolition and Land Reforms Act 1950, the court shall- (a) if there is only one mortgagor who was on the 30th day of June, 1952, entitled as owner to the estate, reduce the amount due in accordance with the formula in Schedule I....." 18. The important expression appearing in sub-sec. (1) of Section 3 is "in any suit to which this act applies relating to a secured debt." The expression "suit to which this Act applies" has been defined in Cl. (o) of Section 2 of the Act:- "Suit to which this Act applies means any suit or proceeding relating to a debt whether secured or otherwise." In the present case there was a charge on zamindari property for satisfaction of the plaintiff's maintenance allowance. This was, therefore, secured debt as defined by Cl. (m) of Sec. 2. The present suit is a suit to which this Act applies. Although the plaintiff is not enforcing the charge under the deed, there is no denying the fact that the debt in question is a secured debt. So all the conditions required by the expression "in any suit to which this Act applies relating to a secured debt" are fulfilled in the present case. Sub-Sec. (1) of Section 3 of the Act, therefore, governs the present case. So all the conditions required by the expression "in any suit to which this Act applies relating to a secured debt" are fulfilled in the present case. Sub-Sec. (1) of Section 3 of the Act, therefore, governs the present case. The defendants are, therefore, entitled to insist that the court should proceed under sub-sec. (2) of Section 3 of the Act. 19. Mr. Satish Chandra invited a comparison of Secs. 3 and 4 of the Act. He pointed out that in Jhamola Kunwar's case 1962 A.L.J. 195 the judgment-debtor was not given the benefit of sub-sec. (2) of Section 4 of the Act. It was, therefore, contended that, the present appellants should also not get the benefit of sub-sec. (2) of Section 3 of the Act. It must, however, be pointed out that, there is some difference in the language of sub-sec. (2) of Section 3 and the language of sub-sec. (2) of Sec. 4. Sec. 4(2) requires that the mortgaged property should be charged under a decree. There is no such requirement in sub-sec. (2) of Section 3 of the Act. All that sub-sec. (2) of Section 3 requires is that, the mortgaged property should consist of an estate. It is not necessary that the plaintiff should be enforcing a mortgage or a charge for getting the benefit of sub-sec. (2) of Section 3 of the Act. So, although the plaintiff is not enforcing any mortgage or a charge, the defendants are entitled to the benefit of sub-sec. (2) of Section 3 of the Act. It means that the amount found due against the defendants has to be reduced in accordance with the formula in Sch. I. 20. In order to apply the formula given in Sch. I, it is necessary to ascertain the prescribed multiples. We have not been able to ascertain the multiples from the record. It will, therefore, be convenient to remit the matter to the trial court for making out the necessary calculation. It is sufficient to observe here that, the defendants-appellants are entitled to reduction of debt under Section 3 of the U.P. Zamindars Debt Reduction Act, 1952. 21. The Second appeal is allowed. We direct the Munsif of Bijnor to substitute for Rs. 1,200 an amount fixed after giving the defendant-appellants the benefit of Section 3 of the U.P. Zamindars Debt Reduction Act, 1952, as explained above. 21. The Second appeal is allowed. We direct the Munsif of Bijnor to substitute for Rs. 1,200 an amount fixed after giving the defendant-appellants the benefit of Section 3 of the U.P. Zamindars Debt Reduction Act, 1952, as explained above. Parties shall receive and pay costs in the three courts in proportion to their success and failure.