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1962 DIGILAW 99 (KER)

Kochukunju Kunjukunju v. Sankaran Ambujakshan

1962-03-14

M.S.MENON, P.GOVINDA NAIR

body1962
Judgment :- 1. The sale in O.S. No. 182 of 1118 of the Munsiff's Court of Kottarakara was set aside by that court in pursuance of a petition under S.22(1)(ii)(b) of the Kerala Agriculturists Debt Relief Act, 1958 (Act 31 of 1958). The auction purchaser filed an appeal against the said order before the District Court of Quilon, A.S. No, 375 of 1959, and succeeded in the appeal. This Civil Revision Petition challenges the correctness of the appellate decision. 2. It is common ground that the decision of the appellate court has to be affirmed in case the debt in question is not a debt as defined in Act 31 of 1958, and that that decision has to be reversed, if the debt concerned is a debt as defined in that Act. We have come to the conclusion that the debt is a debt as defined in Act 31 of 1958 and is not excluded from that definition. 3. S.2 (c)(vii) of Act 31 of 1958 excludes from the expression "debt" "any liability for which a charge is provided under sub clause (b) of clause (4) of S.55 of the Transfer of Property Act, 1882". The contention of the respondent (auction purchaser) - a contention which we are not prepared to accept - is that what we have before us is a liability which is excluded from the ambit of the definition of the expression "debt" by the words above quoted, namely, "any liability for which a charge is provided under sub-clause (b) of clause (4) of S.55 of the Transfer of Property Act, 1882". 4. 4. S.55 of the Transfer of Property Act, 1882, deals with the rights and liabilities of buyers and sellers, and under subclause (4) (b) of that section the seller is entitled "where the ownership of the property has passed to the buyer before payment of the whole of the purchase-money, to a charge upon the property in the hands of the buyer, any transferee without consideration or any transferee with notice of the non-payment, for the amount of the purchase-money, or any part thereof remaining unpaid, and for interest on such amount or part from the date on which possession has been delivered." In A.I.R. 1941 Madras 118, S.10 (2) (ii) of the Madras Agriculturists Relief Act, 1938 "Any liability for which a charge is provided under S.55, clause (4), sub-clause (b) of the Transfer of Property Act." - came up for consideration. The court said: "This provision may be read in two ways. It may be read as safeguarding any liability for which a charge under S.55 (4) (b), T. P. Act, subsists; or, it may be read as protecting any liability of the category of liabilities in respect of which a charge is provided under S.55 (4) (b), T. P. Act. We are of opinion that the latter interpretation is the correct interpretation and that the intention of the Legislature was to specify those classes of liabilities in respect of which the scaling down provisions of the Act were not to operate and that the exclusion of liabilities of these categories was not to depend on the actual subsistence of the charge but on the question whether in the beginning the liability was one belonging to that category in respect of which the Transfer of Property Act provided a charge." 5. This decision was followed in A.I.R. 1943 Madras 213,33 Cochin 270 and 1960 K.L.T. 10. We see no reason to differ. And if the intention of the Legislature was only to specify the category of cases to which the Act was not to apply and the exclusion of such categories of debt does not depend on the subsistence of the charge but on the question whether in the beginning the liability was one .falling within the category, the, only further question can be whether the liability before us falls within the category or not. 6. 6. The document as a result of which a charge in favour of the vendor is said to arise is Ext. D-1 dated 2-3-1106 M.E. corresponding to 18-10-1930 A.D. The first contention on behalf of the petitioners is that there is no unpaid purchase money at all on which a charge could operate for the reason that the sale was not in consideration of money which the purchaser covenanted to pay; but in consideration of a covenant to pay a sum of money in the future. The distinction between the two types of consideration is real, and was dealt with as follows in I.L.R. 31 Calcutta 57 (P.C.): "It was said that no charge ever arose, because the purchase was not in consideration of a sum of money, part of which was paid down and the payment the balance of which was deferred, but it was a purchase in consideration of a particular covenant. There is no doubt, both on principle and authority, that a conveyance or sale in consideration of a covenant to pay a sum of money in the future is different from a sale in consideration of money which the purchaser covenants to pay. The distinction may seem fine, but it is a real distinction." We propose to assume, without deciding, that the consideration for Ext. D-1 is money which the purchaser covenanted to pay, and not a covenant to pay a sum of money in the future, or, in other words, there is unpaid purchase money in respect of which a charge could operate. 7. The second contention of the petitioners is that even if there is unpaid purchase money in respect of which a charge could operate, the liability has been liquidated by the execution of the mortgage deed, Ext D-2, on the same date as Ext D-1 and covering not merely the items of property sold but other items of property as well. In order to lose the statutory charge a contract to the contrary is necessary and we propose to assume - again without deciding - that a contract to the contrary cannot be spelt out in this case. 8. In order to lose the statutory charge a contract to the contrary is necessary and we propose to assume - again without deciding - that a contract to the contrary cannot be spelt out in this case. 8. The third and last contention of the petitioners is that even if there is a liability for unpaid purchase money, as we have assumed there is, that liability cannot be considered to be a liability for which a charge is provided under sub clause (b) of Cl.(4) of S.55 of the Transfer of Property Act, 1882, for the reason that that Act came into force in this State only on 1-4-1951. This is a contention which we cannot but accept. Ext D-1, as already pointed out, was executed on 18-10-1930 and cannot possibly give rise to a charge under an Act which was extended to this State for the first time on 1-4-1951. 9. In 1961 K.L.T. 373 Raghavan, J., dealt with a similar contention as follows: "What is contemplated by S.2 (c) (vii) is not the actual subsistence of a charge under S.55 (4) (b) of the Transfer of Property Act; but what is excepted under this clause is a liability for which a charge is provided under sub-clause (b) of clause (4) of S.55 of the Transfer of Property Act. This only means that sub clause (vii) of Section (2) (c) specifies a category of liability to which the Act does not apply and nothing turns on the actual subsistence of the charge. For this view there is support in a recent case of this Court, 1960 K.L.T. 10. Therefore the only question is whether the decree debt now before me is a liability of the category for which a charge is provided under S.55 (4) (b) of the Transfer of Property Act. If I come to the conclusion that the decree is such a liability, then the fact whether at the date of the sale the Transfer of Property Act applied to the sale or not is of no consequence." We find it impossible to agree with the statement that "the fact whether at the date of the sale the Transfer of Property Act applied to the sale or not is of no consequence." It is true that what is material is the category of the liability and not the subsistence of the charge. But in order to come under the category excluded, the liability must be a liability for which a charge is provided under S.55, clause (4), sub clause (b), of the Transfer of Property Act, 1882, and it should be axiomatic that to provide a charge under that provision, the provision must have been in force on the date of, the sale. And such not being the case, we must hold that what we have before us is a liability not excluded from the definition of the expression "debt" in Act 31 of 1958, that the sale should be set aside as was done by the learned Munsiff under S.22(1)(ii)(b) of Act 31 of 1958, and that this C.R.P. should be allowed. 10. We are aware that our interpretation will exclude from S.2 (c) (vii) of Act 31 of 1958 the vendor's lien that obtained in Travancore till 1-4-1951, the vendor's lien that obtained in Cochin till 1-1-1112, and the statutory charge under S.56 (4) (b) of the Cochin Transfer of Property Act, XVII of 1111, which obtained from 1-1-1112 till 1-4-1951. But that is inevitable in the light of the wording employed by the Legislature. 11. In 1957 K.L.T. 809 S.2(b) of the Travancore-Cochin Indebted Agriculturists Relief Act, 1956, came up, for consideration. That provision defined "debt" as not including "any liability incurred, or arising under any chitty or kuri registered or licensed under the Travancore Chitties Act, 1120 (XXVI of 1120) or the Cochin Kuries Act, 1107 (VII of 1107)". The chitty concerned in that case was started in Travancore before the commencement of the Travancore Chitties Act, 1120. The court said: "Act III of 1094 was the first Travancore Act in relation to chitties and the Cochin Kuries Act, 1107 is the first and the only enactment made in Cochin with respect to kuries. The decree under execution is an instance where the liability incurred under a chitty registered in the Travancore area under Act III of 1094 still subsists and it will not be questioned that there will be very many such instances of liabilities, under chitties registered under that Act still subsist. Not only that there will still be cases in Travancore area where liabilities incurred or arising under chitties started before the commencement of Act III of 1094 happen to be still subsisting. Not only that there will still be cases in Travancore area where liabilities incurred or arising under chitties started before the commencement of Act III of 1094 happen to be still subsisting. Likewise, there will be very many cases in Cochin area of liabilities arising under kuries started before the Cochin Kuries Act, 1107, still subsist. The exemption clause (vi) to S.2 (b) of the Act, quoted above, does not refer to any liability arising under the three categories now mentioned. For courts to bring them within the purview, of the exemption by any process of interpretation would be arrogating to themselves powers which they do not possess, but which the Legislature alone have." 12. We allow the C.R.P., but in the circumstances of the case without any order as to costs. Allowed.