GOWRAMMA v. TALUK MAGISTRATE AND TAHSILDAR — 1986 DIGILAW 61 (KAR)

MURLIDHAR RAO, J. ( 1 ) BEING of the opinion that the decisions of this Court in rame Gowda v Sarojamma 1980 (1) Kar. L. J. , page 345 and N. Shivakumar v M/s. Sudarshan Trading Co. Ltd. I. L. R. 1984 (2) Karnataka, page 914 may require reconsideration, has referred the case to a Division Bench. ( 2 ) BEFORE considering the ratio of the aforesaid decisions, we may briefly refer to the facts of the case on hand. The facts are these : on January 10, 1969, one Devaiah of Marenahally village, Malavalli Taluk, had borrowed Rs. 6000/- from gowramma, upon hypothecating his house property under a registered mortgage deed. On October 21, 1976, the karnataka DEBT RELIEF ACT, 1976, 1976 (Act No. 25/ 76) (in short "the Act") was brought into force. The Act was intended to provide relief from indebtedness to certain class of debtors like small farmers, landless agricultural labourers and persons belonging to weaker sections of the people. On May 12. 1977, devaiah died without redeeming the mortgage. On November 6, 1979 Ningamma, wife of Devaiah (2nd respondent herein) filed an application under Section-4 of the Act, contending, inter alia, that she is a debtor as defined under the act and the property mortgaged by her husband should be delivered to her free from encumbrance. The Tahsildar, malavalli Taluk, before whom the application came up for consideration held that Ningamma is a debtor eligible for the relief under the Act. He directed gowramma, the mortgagee to restore the property in favour of Ningamma. The order was made in terms of Section 4 (f) of the Act That order was challenged by Gowramma in the aforesaid writ petition which has been referred to a Division Bench for disposal. ( 3 ) WE may now turn to the decision of this Court in Rame Gowda's case. There the facts are these : One chikkavarada Setty and his sons together mortgaged 20 guntas of land out of Sy. No. 36/4b for Rs. 3000/- by executing a registered dee'd dated May 16, 1974 in favour of Rame Gowda. On june 4, 1975, Chikkavarada Setty executed a Will bequeathing the said land in favour of his grand-daughters. On october 10, 1975 Chikkavarada Settydied. On October 21, 1975, the karnataka DEBT RELIEF ACT, 1976, 1976 came into force. No. 36/4b for Rs. 3000/- by executing a registered dee'd dated May 16, 1974 in favour of Rame Gowda. On june 4, 1975, Chikkavarada Setty executed a Will bequeathing the said land in favour of his grand-daughters. On october 10, 1975 Chikkavarada Settydied. On October 21, 1975, the karnataka DEBT RELIEF ACT, 1976, 1976 came into force. The legatees under the said Will, who were minors, represented by the next friend mother approached the tahsildar contending that they are debtors as defined under the Act and entitled to get back the mortgaged property free from encumbrance. The tahsildar, after an enquiry,. acceded to the demand of the legatees and directed delivery of possession of the property in their favour. " The validity of that order was the subject matter of the writ petition filed by Reme Gowda. This Court while disposing that matter observed at page 346 thus :"the sections also indicate that the relief in respect of the pledged articles or the hypothecated properties is intended for persons who have pledged the articles or executed the mortgages. That much is apparent when S. 4 (e) states "every movable property pledged by a debtor", and S. 4 (f) provides "every mortgage executed by the debtor". The pledging or 'executing' in the context refers primarily to the person who has contracted the debt. He must necessarily be a person to the transaction or instrument under which the debt was incurred. In other words, the debt must be a personal and limited to him and incapable of being passed on to another either by assignment, devolution or bequest to obtain relief under the Act. The Act cannot be construed as a device to defraud the creditors by persons who are really not debtors. Persons who are well placed in life cannot get the benefit of the Act by assigning their debts to persons who are debtors as defined under the Act. This is not not the scheme or purpose'of the act". In Shivakumar's case the question arose whether the legal representatives of an original debtor could claim the benefit under the Act in regard to a decretal debt due from the original debtor. After examining the question and repelling the contention of the legal representatives, the learned single Judge observed at page 921 thus:''section 4 (a) of the Act reads as. . . . After examining the question and repelling the contention of the legal representatives, the learned single Judge observed at page 921 thus:''section 4 (a) of the Act reads as. . . . Every debt advanced before the commencement of this section including the amount of interest, if any payable by the debtor to the creditor shall be deemed to be wholly discharged. The decree was passed against the original defendant Shivakumar. In the execution, his wife and son have been brought on record as his legal representatives and they have been proceeded against only to the extent of the property of the deceased that has come into their hands. Therefore, there is no personal liability case on the legal representatives of the original defendant to pay the amount. It is only the property of the deceased that has come into their hands, that is being proceeded against for the recovery of the amount. Therefore, it cannot be said that it is an amount payable by the L. Rs. to the Creditor. It is only an amount payable out of the property pf the deceased defendant, which has come into the hands of the legal representatives. It has been held by this Court in Ramegowda v sarojamma, that it is not open to the legal representatives of the original borfower to take shelter under the provisions of the KARNATAKA DEBT RELIEF ACT, 1976. Therefore, the legal representatives of the deceased defendant, against whom the decree was passed, cannot claim the relief under the karnataka DEBT RELIEF ACT, 1976. " ( 4 ) IT will be seen from the facts of the aforesaid cases, the original debtor died prior to the coming into force of sections 3, 4, 7 and 8 of the Act, i. e. , prior to October 21, 1975. There this court did not accept the plea put for' ward by the legatees or the legal representatives that they were entitled to the benefit of the Act in regard to the debt incurred by the original debtor. ( 5 ) THE facts of the present case, however, do not lie in close parallel with the facts found in the above two decisions. Here, Devaiah, the original debtor died on May 12, 1977 after the act came into force. Before his death he did not make an application under sec. ( 5 ) THE facts of the present case, however, do not lie in close parallel with the facts found in the above two decisions. Here, Devaiah, the original debtor died on May 12, 1977 after the act came into force. Before his death he did not make an application under sec. 4 (f) of the Act to recover possession of the mortgaged property. That part of the work was left to his widow ningamma. She filed an application on november 6, 1979 claiming that she is a debtor as defined under the Act and the possession of the property of her husband should be delivered to her without liability to pay the debt. ( 6 ) ON these facts, the first question that arises for consideration is "whether ningamma could make an application under Sec. 4 (f) of the Act and ask for possession of the mortgaged property?" if this question is answered in the affirmative, then the next question for consideration is as to who should be proved to be the debtor on the relevant date ? Whether Ningamma herself or her husband ? In order to determine these questions, we may now refer to the relevant provisions in the Act. Section 4 of the Act, so far as it is relevant provides :"4. Relief from indebtedness-Notwithstanding anything in any law for the time being in force or in any contract or instrument having force by virtue of any such law and save as otherwise expressly provided in this section. . . . . . . . (a) every debt advanced before the commencement of this section including the amount of interest, if any, payable by the debtor to the creditor shall be deemed to be wholly discharged. (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (d ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (e ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (f) every mortgage executed by the debtor in favour of the creditor shall stand' redeemed and the mortgaged property shall be released in favour of such debtor and where the creditor fails to do so, the Sub-Divisional magistrate or any other executive magistrate authorised by the State government in this behalf having jurisdiction over the place where the mortgaged property is situate may, suo moto or on application of the debtor and after such inquiry as he may deem fit, put the debtor in possession of the mortgaged property. "it will be seen that from the date of commencement of Section 4, every debt advanced befo're October 21, 1975, including the interest payable thereon by the debtor to the creditor shall be deemed to be wholly discharged. The discharge of the debt was by operation of law and not by act of parties. The debt due by the person who falls within the definition of ''debtpr" stood completely extinguished notwithstanding anything in any law or in any contract or instrument. Section 4 (f) specifically deals with mortgages and provides relief and remedy for such debtors. It provides that every mortgage executed by the debtor in favour of the creditor shall stand redeemed as on the date when the Act came into force. Section 4 (f) specifically deals with mortgages and provides relief and remedy for such debtors. It provides that every mortgage executed by the debtor in favour of the creditor shall stand redeemed as on the date when the Act came into force. It directs that the mortgaged property shall be released in favour of such debtor by the creditor. It further states that if the creditor fails to deliver the property to the debtor, then the sub-Divisional Magistrate may suo moto take action to put the debtor in possession of the property. The Sub- divisional Magistrate could also take action for the purpose on the application of the debtor. ( 7 ) IT may now be noted that when the Act came into force Devaiah, the original debtor, was alive. He died after a couple of years later. If he were a debtor as defined under Section 3 (c) of the Act, then he was not liable to pay the debt due under the deed of mortgage. It shall be deemed to have been wholly discharged upon the Act coming into force. He had a right to claim the property free from encumbrance. He was entitled to be put in possession of the property. Such a property has now been inherited by his widow Ningamma. She has a right to move the sub-Divisional Magistrate to put her in possession of the property. ( 8 ) THE next question for consideration is whether it is necessary to prove that Ningamma was a debtor or her husband Devaiah. Before we examine this question, we may take note of the relatable contention urged by Mr. Kamath on the first question itself. Mr. Kamath, counsel for the petitioner, urged that having regard to the terms of Sec. 4 (f) of the Act, Ningamma, unless she was the original debtor, could not move the concerned authority for delivery of the mortgaged property. The counsel strongly relied upon the latter part of sec. 4 (f) of the Act and in particular the following portion :". . . . the Sub-Divisional Magistrate or any other executive Magistrate authorised by the State Government in this behalf having Jurisdiction over the place where the mortgaged property is situate may, suo moto or on application of the debtor and after such inquiry as he may deem fit, put the debtor in possession of the mortgaged property. . . . the Sub-Divisional Magistrate or any other executive Magistrate authorised by the State Government in this behalf having Jurisdiction over the place where the mortgaged property is situate may, suo moto or on application of the debtor and after such inquiry as he may deem fit, put the debtor in possession of the mortgaged property. "debtor refers to therein, according to Mr. Kamath, would be the original debtor who executed the mortgage deed and not his legal representations. ( 9 ) A literal interpretation of the latter part of Section 4 (f) may lend support to the contention. But, the literal construction or the stric construction which goes by the letter of the law dominated in the legal scene in the 19th century is no longer popular. The stric constructionists stood by the "golden rule" laid down in Grey v. Pearson [ (1857) 6 H. L Case 61] by Lord Chancellor have yielded place to "schematic" interpretatists. So much so, the Courts now look to the purpose, intent, scheme or design of the legislation. Therefore, we must have due regard to the object of the Act and the intent of the legislature. We must adopt such an interpretation so as to achieve the purpose of the Act and not to defeat the purpose. The purpose of the Act was to give relief from indebtedness to certain classes of persons enumerated under Section 3 (c) of the act. The debt due by persons belonging to that category of persons has been wiped off or shall be deemed to have been discharged. The date on which the debt stood extinguished was the date on which Section 4 of the Act came into force. Devaiah was alive when the Act came into force. He shall be deemed to have been relieved from his indebtedness if he were a debtor as defined under the Act. He had a right to recover possession of the mortgaged property free from encumbrance. Without taking delivery of the property, if Devaiah died, his wife entitled to that property must be held to have the right to recover the property. She could do so by taking recourse to the procedure prescribed under the Act. She could not be driven to the Court of general jurisdiction, In our opinion, although Section 4 (f) states that "on an application of the debtor. . . . She could do so by taking recourse to the procedure prescribed under the Act. She could not be driven to the Court of general jurisdiction, In our opinion, although Section 4 (f) states that "on an application of the debtor. . . . put the debtor in possession of the mortgaged property," the person legitimately entitled to that property could move the prescribed authority for the relief of possession of the property. The answer to the second question is not now far to seek. The logical conclusion from the above discussion is, it must be proved that the original debtor, on the coming into force, of the act, was alive and he was a debtor entitled to the benefits under the Act. Therefore, the widow of Devaiah was entitled to make an application for the relief she has asked, but it must be proved that Devaiah was a debtor as defined under the Act. 9. IN the conclusion that we have reached, it is not necessary to reconsider the decision in Ramegowda's case or in Shivakumar's case. ( 10 ) IN the result, we allow the writ petition, set aside the order of the tahsildar and remit the matter for fresh consideration in the light of the observations made above. In the circumstances of the case, we make no order as to costs. --- *** --- .