1950 Supreme(All) 112

HIGH COURT OF ALLAHBAD
WALI ULLAH, SAPRU, JJ.
B. Chotey Lal
Versus
Fazlul Rahman Khan
Ex. First Appeals Nos. 457 of 1941, and 224 of 1942
Decided On : 04-04-1950

Interpretation of Explanation II to S. 2(3) of the U.P. Debt Redemption Act, 1940.

Headnote:

DEBT REDEMPTION ACT - S. 8 - AGRICULTURIST - LOCAL RATE - WAQF ESTATE - LIABILITY TO PAY AMOUNT DUE UNDER DECREE - INTERPRETATION OF EXPLANATION II TO S. 2(3) - Held, (i) the benefit of a temporary remission of land revenue goes both to the landlord (or proprietor) who actually pays land revenue as well as to the landlord or proprietor who is assumed to pay land revenue. (ii) the waqf estate, as represented by the Mutwalli Fazlul Rahman is also entitled to claim a reduction in the local rate payable in respect of four non-revenue paying items of property comprised in the waqf. (iii) the waqf estate as represented by the Mutwalli Fazlul Rahman, is an "agriculturist" within the meaning of the definition of the term as contained in S. 2(3), Debt Redemption Act. (iv) the "local rate" payable by the waqf estate, whatever may be the amount of such local rate, would not therefore, affect the character of the waqf estate as an "agriculturist". (v) Abdul Karim was not liable to pay the amount due under the decree and was, therefore, not competent to apply under S. 8, Debt Redemption Act for reduction, of the amount of the decree. (vi) the waqf estate undoubtedly is liable to pay the amount due under the decree. Fazlur Rahman as mutawalli is, therefore, fully competent to make an application under S. 8, Debt Redemption Act.

Fact of the Case:

The facts cover a long period and are rather complicated. Abdul Karim and his son Fazlul Rahman hold considerable property. On 11-1-1924 the father and the son granted a simple mortgage in favour of the respondent, Rai Bahadur Chotey Lal, for a sum of Rs. 40,000/-. It was in respect of some house property as well as some zamindari property in three villages viz. Ichaura Kamboo, Dalpatpur and Papri. Between 1927 and 1928 certain payments were made in part satisfaction, of the debt. The mortgage was put in suit - suit No. 169 of 1928 - and on 28-1-1929, a decree was passed on the basis of this mortgage for a sum of Rs. 59,878-14-6. In satisfaction of this decree as well (?) substantial payments were made with the result that by 21-7-1931, the judgment debtors had discharged the debt to the extent of Rs. 36,014-7-0. On 22-7-1931, a fresh mortgage was executed, practically on the same lines as the earlier mortgage by the father and the son for a sum of Rs. 29,500/- in lieu of the balance due under the decree. Thereafter another suit viz., suit No. 113 of 1932 was instituted for sale on the basis of a mortgage of 22-7-1931 with the result that a decree for a sum of Rs. 49,531-6-6 was passed on 31-1-1933, against the father and the son. On 29-4-1933, both the judgment-debtors made a payment of a sum of Rs. 14,500/- towards the amount due under the decree. It thus came about that for the original debt of Rs. 40,000/-, the father and the son had by this date paid in all a sum of Rs. 50,514-7-0. Next it appears that the judgment-debtors applied for reduction of interest under the Agriculturists Relief Act (U.P. Act 27 of 1934) and on 4-1-1936 the mortgage decree was amended and the sum declared to be due under the amended decree was Rs. 34,881-14-6.

Finding of the Court:

Abdul Karim and Fazlur Rahman were "agriculturists" at the date of the application under S. 8, Debt Redemption Act. Similarly the waqf estate as represented by Fazlul Rahman was an "agriculturist" at the date of the application. Abdul Karim was not liable to pay the amount due under the decree and was, therefore, not competent to apply under S. 8, Debt Redemption Act for reduction, of the amount of the decree. But the waqf estate represented by Fazlur Rahman as its mutawalli, is liable to pay the amount due under the decree.

Issues: 1. Whether Abdul Karim and Fazlul Rahman are agriculturists within the meaning of the U.P. Debt Redemption Act on 11-1-1924, and on 21-7-1931, the date of the mortgages, and on the date when they made an application for the amendment of the decree and whether they are jointly or separately entitled to apply for the amendment of the decree under S. 8, U.P. Debt Redemption Act 2. In case only one of these two persons being (sic) (is) entitled to the benefit of the Debt Redemption Act how is the loan to be apportioned between them in view of Section 11 of the Act and for what amount the decree is to be amended in favour of such a person.

Ratio Decidendi: 1. The proper interpretation of Explanation II attached to the definition of an "agriculturist" in S. 2(3) is that the benefit of a temporary remission of land revenue goes both to the landlord (or proprietor) who actually pays land revenue as well as to the landlord or proprietor who is assumed to pay land revenue. 2. The "local rate" payable by the waqf estate, whatever may be the amount of such local rate, would not therefore, affect the character of the waqf estate as an "agriculturist".

Final Decision: Appeal allowed.