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Petitioner: SREEMATI HARA SUNDARI DE VS Respondent: SARAT CHANDRA MAJUMDAR
P L D 1960 Dacca 366
P L D 1960 Dacca 366
Before Amin Ahmed, C. J. and Chakraborti, J
Sreemati HARA SUNDARI DE‑Appellant
versus
SARAT CHANDRA MAJUMDAR‑Respondent
Letters Patent Appeal No. 5 of 1958, decided on 11th February, 1959.
Bengal Agricultural Debtors Act (VII of 1936), Ss. 8 & 18 Board in limine rejecting application under S. 8 holding that transaction involved was not a debt‑Civil Court's jurisdiction not ousted.
Where two persons S and H were parties to do‑current which H the recipient of the document claimed to be a 'sale out and out and S the executants claimed it to be a mortgage by conditional sale. S applied before the Debt Settlement Board under the Bengal Agricultural Debtors Act, 1936 treating the transaction as a mortgage by conditional sale and alleged that the debt had been wiped out by enjoyment of the usufruct of the mortgaged property. H maintained that the transaction was not a debt but a sale out and out. The Board was satisfied to that effect and accordingly, found that there was 'no debt and so rejected the application. S thereupon brought a suit in the Civil Court for redemption of his land. H contested the suit and argued that in view of the order of the Board dismissing the application of S on finding that it was not a debt, the Civil Court had no jurisdiction to question that finding of the Board.
Held, the existence of a debt being a sine qua non for the assumption of jurisdiction by the Board, the Board had no other alternative but to reject the application and this decision of the Board did not oust the jurisdiction of the Civil Court to decide the suit.
Haji Moharam Ali v. Munsar Ali (1950) 2 D L R 310 rel.
Chunu Bhuiya alias Chuni Bhuiya v. Ismail Bhuiya and others, on the death of Hadi Bhuiya P L D 1952 Dacca 108 ; Fuljan Bibi and others v. Debendra Nath Kar and another (1951) 3 D L R 38 ; Yakub Ali and another v. Arabjan Bibi and others P L D 1954 Dacca 113 ; Abdul Gafur Shek and others v. Nakul Chandra Pramanik 6 P L R Dac. 52 ; Abdul Jalil (Mistri) v. Golam Rahman 6 P L R Dacca 650 ; Rai Brij Raj Krishna and another v. Messrs S. K. Shaw & Bros. A I R 1951 S C 115 ; Ebrahim Aboobakar and another v. Custodian‑General of Evacuee Property A I R. 1952 S C 319 and The Queen v. The Commissioners for Special Purposes of the Income‑tax (1833) 21 Q B D 313 (319) held not applicable.
R. Guha with M. A. Aziz for Moinul Huq for Appellant.
B. C. Das for Respondent.
JUDGMENT
CHAKRABORTI, J.‑The defendant is the appellant and this Letters Patent Appeal arises out of a suit for possession on redemption of an alleged Kot‑mortgage. The case of the defendant‑appellant is that the plaintiff mortgaged the suit land to the defendant for a loan of Rs. 500 on the 2nd of Baisakh, 1342 B. S., for a period of 15 years on the agreement that if the mortgage money was paid to the mortgagee by the mortgagor at any time by Chaitra, 1356 B. S., the land would be returned to the mortgagor and, if the mortgage money was not paid within the stipulated date, the land would remain in possession of the mortgagee ; the Kot kabala would have then the force of a Saf kabala. On the said stipulation, the plaintiff put the mortgagee in possession. Subsequently, as the debt was denied, the plaintiff approached the Debt Settlement Board and filed an application under section 8 of the Bengal Agricultural Debtors Act (which we shall hereinafter call the Act) for settlement of the debt and the Board on the 10th of March, 1939, came to the decision that the claim was not entertainable by the Board and they accordingly rejected the application. The plaintiff thereafter brought the suit before the Civil Court under section 26‑G of the B. T. Act for possession on redemption of the Kot‑mortgage, the same having been extinguished by the enjoyment of the usufruct of the mortgaged property for over 15 years.
2. The suit was contested by the defendant. His defence was that the transaction was a conveyance out and out and so the plaintiff was not entitled to the reliefs sought for. His further contention was that in view of the order of the Debt Settlement Board dismissing the application of the plaintiff on the finding that it was not a debt, the Civil Court had no jurisdiction to question that finding of the Board.
3. The trial Court negatived the contentions of the defen dant and passed a decree in favour of the plaintiff. There was an appeal and, on appeal, the learned Subordinate Judge reversed the judgment and decree of the learned Munsif and found that the suit was not maintainable before the Civil Court. There was a Second Appeal before this Court in Second Appeal No. 807 of 1954, and this Court again reversed the judgment and decree of the First Appellate Court and restored that of the trial Court. Against that decision, the defendant has approached this Court in Letters Patent Appeal No. 5 of 1958.
4. Mr. Guha appearing for the appellant has taken two objections against the decision of the single Judge in this case. He has firstly contended that in view of section 20 of the Act it was the exclusive jurisdiction of the Board to decide whether the applicant before the Board was a debtor or not and whether the liability was a debt or not, and the aggrieved party had his remedies under the Act and, if, he did not avail of those remedies, he could not come before the Civil Court and the Civil Court had no right to question the finding of the Debt Settlement Board. He secondly contended before us that, on the con struction of the document itself, the learned Judge should have held that the transaction was an out and out sale.
5. Mr. B. C. Das appearing for the respondent has conceded before the Court that there was some difficulty in the matter but he says that when the Board in limine had rejected the applica tion without deciding the question on merits, the applicant had every right to approach the Civil Court for vindication of his civil rights. He has drawn our attention to section 18, sub- clauses 2 and 4, and sections 33, 34, 35 as well as other sections of the Act and has contended that it is only where the Board has taken evidence and given an opportunity to the parties to appear and be heard, and makes a decision thereon, it is then and then only that the decision of the Board would be final. He has also contended before us that the bar applies only in cases where proceedings are pending before the Board.
6. As regards the document itself, Mr. Das has referred to it and has contended that the only reasonable construction would be that it was a mortgage by conditional sale and not an out and out sale as contended by Mr. Guha.
7. Mr. Guha also, it appears, argued this appeal before the Single Judge and quoted several decisions in support of his contentions, namely, Chunu Bhuiya alias Chuni Bhuiva v. Ismail Bhuiya and others, on the death of Hadi Bhniya (P L D 1952 Dacca 108), Fuljan Bibi and others v. Debendra Nath Kar and another ((1951) 3 D L R 38), Yakub Alt and another v. Arabjan Bibi and others (P L D 1954 Dacca 113), Abdul Gajur Shek and others v. Nakul Chandra Pramanik (6 P L R Dac. 52), Abdul Jalil. ( Niari) v. Golam Rahman (6 P L R Dacca 650), Rai Brij Raj Krishna and another v. Messrs S. K. Shaw & Bros. (A I R 1951 S C 115), Ebrahim Aboobakar and another v. Custodian‑General of Evacuee Property (AIR 1952 S C 319) and The Queen v. The Commissioners for Special Purposes of the Income -tax ((1833) 21 Q B D 313 (319)). None of these cases have any application to the facts of the present case. The learned Judge explained those decisions saying that the decisions were all correct so far as, they went. In all those cases the Board had found that there was a debt but we have not been referred to any case where the jurisdiction of the Civil Court had been ousted where there was no debt existing between the parties. Mr. Guha also did not lay any stress on these decisions during his argument before this Court.
8. The order of the Board has been quoted in the judgment of the learned Judge to the following effect :
"On taking evidence and on the admission of the debtor that the Chukti kabala was‑really a sale out and out, the case was not triable by the Board and as such the claim was rejected."
Further the learned Judge has also quoted the order of the Board where it was stated:
"Upon evidence it was found that it was not a Kot mortgage and it had been proved to be a sale out and out and, as it was not a debt, the claim was rejected."
So the objections on which the learned Advocate for the respon dent takes his stand have no basis because the parties adduced evidence before the Board and the Board also took into con sideration the admissions of the debtor. Subsection (2) of section 18 of the Act provides:
"Before passing any order under sections 19, 21 or 22 the Board, after considering the statements of debt submitted under section 11 and subsection (1) of section 13 and the evidence produced, if any, after having given an opportunity to the parties to appear and be heard, shall, in, accordance with rules made under this Act, determine in respect of each debt the amount of the principal and the amount of the arrears of interest due thereon from the debtor up to the date of such determination".
Subsection (4) of the said section says:
"When the Board has determined under subsection (2) the amounts of the principal of a debt due from a debtor and of the arrears of interest due thereon, the 'decision of the Board in this respect shall not be questioned in any Civil Court or in any manner other than that provided in this Act."
In the circumstances stated, section 18 of the Act has no applica tion here. When Mr. Das was confronted with these facts, he frankly confessed that he felt some difficulty and contended that he took his stand on the words bicharyya nahe (not to be tried) occurring in the order of the Board. During the argument the attention of the parties was drawn to the case of Haji Maharam Ali v. Munsar Ali ((1950)2D LR310) by the Hon'ble Chief Justice which was then placed before the Court. That case is almost similar to the facts of our present case. In that case also, both the plaintiff and the defendant were parties to a document which the recipient of the document claimed to be a sale out and out and the executant claimed it to be a mortgage by conditional sale. The executant applied before the Debt Settlement Board treating the transaction as a mortgage by conditional sale and alleged that the debt had been wiped out by enjoyment of the usufruct of the mortgaged property. The Board having decided in his favour the plaintiff filed a suit before the Civil Court for a declaration that the decision of the Board was ultra vires and without jurisdiction and further prayed for a declaration of his title and for possession. Their Lordships Shahabuddin C. J. and Amiruddin, J., observed at page 126 as follows:
"We have not been shown any provision of the Act under which the Board can give such a declaration which does not involve the settlement of a debt. 1t may be that if the applicant had admitted the subsistence of the debt treating the transaction as a mortgage and the creditor had come forward with the case that it was a sale out and out, the Board in settling the debt could have dealt with the question whether the transaction was a mortgage or a sale. But, as far as the transaction in question is concerned, we think the Board had no power to give a declaration of title; for, the existence of a debt is sine qua non for the assumption of jurisdiction by the Board".
9. Here no doubt this debt was included in the application under section 8 of the Act before the Board by the respondent but it was admitted before the Board by the defendant‑respondent (sic) that it was a sale out and out and the appellant's con tention also was that it was not a debt but a sale, and, on the evidence also, the Board was satisfied to that effect and accord ingly the Board found that there was no debt, and, the existence of a debt being a sine qua non for the assumption of jurisdiction by the Board, the Board had no other alternative but to reject the application. So, on the authority of that decision, there can be no doubt that the Civil Court had jurisdiction to decide the suit.
10. Mr. Guha has laid stress on the wordings of section 20 of the Act. It will appear that the whole scheme of the Act is to give relief to the indebted agricultural debtors and to amend the law governing the relations between Abe agricultural debtors and their creditors and, where there is no debt at all, the Act has nothing to do. It is true that, where relationship between the parties is that of a debtor and a creditor, the Act comes in on the question of application of section 20 of the Act and the remedy provided by section 40 and other sections can be availed of but where, admittedly, there is no debt at all, these sections, namely, sections 20, 40 and other sections, have no application at all. So, although not exactly for the reasons given by the learned Judge, but for reasons which we have stated before, we hold that the Civil Court had jurisdiction to entertain the suit and, as such, the first contention raised by Mr. Guha is over‑ruled.
11. So far as the second contention is concerned, we have gone through the document itself. The plaintiff's case is that the property is worth Rs. 1,400 to Rs. 1,500, and the consideration mentioned in the document is only Rs. 500. Further the docu ment is stated to be Meadi Chukti Kabala. The term of the document which is 15 years is a pretty long period. If the parties intended that it would be a kabala out and out with only a condition of repurchase, we could have expected that the term would have been much shorter. Then again in the kabala the executant undertakes to repay the consideration money. The word "repay" is significant and it is further provided that if the executant fails to repay by the date fixed, then, on the expiry of that period, the Chukti Kabala would be deemed to be out and out sale and it is only after that contingency that the recipient of the document would be entitled to get the name of the executant struck off from the landlord's sherista. Considering the document as a whole and the intention gathered therefrom, we are also of opinion that the document in question was a mort gage by conditional sale and not a sale out and out.
12. Both the contentions of the learned Advocate for the appellant having failed, the appeal is dismissed with costs.
AMIN AHMED, C. J.‑I agree.
K. B. A. Appeal dismissed.