Authored By : Mitter, Waight

Mitter, J.

1. In January 1926, the defendants borrowed Rs. 3000 fromthe plaintiff. They paid Rs. 50 only in 1929. Arrears of interest werecapitalized and a simple money bond was executed by the defendants in favour ofthe plaintiff for the sum of Rs. 4900. The bond provided for interest at therate of 15 per cent, per annum. In 1932, a suit to enforce the bond wasbrought. It terminated in a decree for Rs. 6500, on the 28th April 1933. In1935, the decree-holder applied for execution. Many lots were attached. Theproperty which is material for the purpose of this appeal was lot No. 3. Itrepresented 12 annas undivided share of the judgment-debtor in certainimmovable properties. That was put up for sale. At the sale the decree-holderhimself purchased it. The sale was confirmed on 28th August 1936 and jointpossession with the judgment-debtors cosharers was delivered to thedecree-holder purchaser on 23rd February 1937. Thereafter the decree-holder purchasercontinued to be in joint possession with the cosharers of the judgment-debtorsfor sometime. In 1938, the decree-holder purchaser instituted a suit forpartition. A preliminary decree was passed on 20th July 1939 in that partitionsuit. Thereafter, on 22nd June 1940, the decree-holder started execution forthe balance of the decree. This execution brought the suit on the simple moneybond within the Bengal Money-lenders Act. On 6th February 1941, thejudgment-debtors made an application under S. 36 of the said Act for relief.While this application was pending the final decree in the partition suit wasmade on 31st March 1941. The decree-holder purchaser got a separate allotmentfor the undivided 12 annas share which he had purchased at the court sale. Thelearned Subordinate Judge has given relief to the judgment-debtors. Here-opened the decree, passed a new decree for Rs. 6631-12-6 and made thedecretal amount payable in 20 equal yearly instalments. He has directed therestoration to the judgment-debtors of the separate allotment which has beengiven to the decree-holder auction, purchaser in the partition suit. He made aconsequential order namely that in default of payment of any one of theinstalments the said property was to be restored to the decree-holder auctionpurchaser and in that event the price given by the decree-holderauction-purchaser at the court sale was to be set off against the new decree.The decree-holder has preferred this appeal.

2. Five points have been urged in support of the appeal: (1)That in view of the partition decree no restoration of possession to thejudgment-debtors can be ordered; (2) that in any event the order forrestoration should have been for the 12 annas undivided share which was sold atthe court sale in execution of the decree passed on the simple money bond; (3)that it it be held that the judgment-debtors were entitled to restoration ofpossession of the separate allotment made in favour of the decree-holderpurchaser in the partition suit the costs incurred by the latter in conductingthe partition suit ought to have been added to the new decree; (4) that in anyevent the Court below ought of have added to the decretal amount the landlordsfees which the decree-holder auction-purchaser had to pay to the landlord inaccordance with the provisions of S. 26E, Bengal Tenancy Act, which was inforce at the time of his purchase, as also the costs of execution and theamount of rent that he had paid to the landlord after his purchase and (5) thatin any event the number of instalments is too large.

3. The first two points raise questions of first impression.We will deal with those points together. An analysis of the relevant provisionsof S. 36, Bengal Money-lenders Act, so far as they, are relevant to the appealbefore us establishes the following propositions: (a) that where the Court hasreason to believe that the exercise of one or more of the powers enumerated inthe different clauses of that section will give relief to the borrower theCourt is bound to exercise all or any of those powers as may be appropriate tothe case; (b) that if the Court has come to the conclusion that the borrower isentitled to relief the Court must re-open the decree and pass a new decree inaccordance with the Act giving instalments; (c) that if in execution of there-opened decree any property of the judgment-debtor had been sold the Courtshall order restoration to the judgment-debtor of that property in thepossession of the decree-holder if it had been acquired by the decree-holder inconsequence of the execution of the re-opened decree; (d) that if the propertyhad been purchased in execution of the re-opened decree by a bona fidepurchaser other than the decree-holder or if purchased by the decree-holder andthereafter sold by him to a bona fide purchaser, restoration of possession isnot to be made to the judgment-debtor on the old decree being re-opened: and(e) that where property is restored to the judgment-debtor the decree-holdercould again be put into possession if there is a failure on the part of thejudgment-debtor in the payment of instalments provided for in the new decree.In 49 C. W. N. 30 Jadu Nath Roy v. Kshitish Chandra (45) 32 A. I. R. 1945 Cal.177 : 49 C. W. N. 30, the provisions of S. 36 (2) were considered in somedetail. Two propositions material to the appeal before us were laid down inthat case. The first proposition is that the title obtained by thedecree-holder purchaser at the sale in execution of the re-opened decreeremains till the new decree is satisfied by the payment of the instalmentsdirected therein. It is only after the payment of all the instalments providedfor in the new decree that the sale in his favour would stand cancelled. Thesecond proposition is that where the judgment-debtor gets restoration ofpossession by virtue of the provisions of S. 36 (2) (c) he does not acquiretitle till all the instalments provided for in the new decree are paid. He getsback only possession and has, while the instalment decree is still in force, aright in re alieno, namely, the right to remain in possession and toappropriate the profits of the property restored to him, the object of theLegislature being to give him the means of satisfying the instalments providedfor in the new decree. In considering the first two points raised before us thepoints that we have noticed above are, in our judgment, material. There isanother provision in S. 36 of the Act, which is also material, that is proviso(2) to sub-s. (1) of that section. That proviso prevents the Court fromaffecting a decree "other than a decree in a suit to which the Actapplies." As the decree in the suit for partition is a decree in a suit towhich the Bengal Moneylenders Act does not apply that decree cannot be touched.That is quite clear. Whether the decree in the partition suit would be bindingon the judgment-debtor if he pays all the instalments under the new decree onthe ground that the said final decree was passed at the instance of thedecree-holder auction-purchaser after the judgment-debtor had made hisapplication under S. 36, Bengal Money-lenders Act, is a question on which weexpress no opinion as that question is not relevant at the present stage. Wewould assume that that decree is sacrosanct and cannot be touched in these proceedings,under S. 36, Bengal Money-lenders Act. Furthermore, as the cosharers of thejudgment-debtors are not parties to the present proceedings under S. 36 andcannot be dragged into these proceedings restoration of possession of 12 annasundivided share of the judgment-debtors which was sold at the court sale inexecution of the decree on the simple money bond cannot be ordered after thedecree in the partition suit. The question therefore is whether restoration ofpossession of the separate allotment made to the decree-holder by reason of thefinal decree in the partition suit can be made or not.

4. Clause (c) of sub-s. (2) of S. 36 casts upon the Courtthe duty-the language is imperative-of restoring to the judgment-debtor hisproperty which had been acquired by the decree-holder in consequence of theexecution of the re-opened decree. That sub-section is, however, materiallyqualified by the provisions of cl. (b) of that sub-section. The separateallotments given to the decree-holder auction-purchaser resulted thus namely :(1) the acquisition by the decree-holder of the 12 annas undivided share of thejudgment-debtors at the sale in execution of the re-opened decree and (2) onthe basis of the title thus acquired by him at the court sale the decree-holderacquired the separate allotment in the partition suit. The language used in cl.(c) (".... in consequence of the execution of the re-openeddecree.......") would be wide enough to cover the case. The acquisition atthe court sale of the undivided 12 annas share was the immediate cause of theacquisition of the separate allotment in the partition suit. Prima facie,therefore, the judgment-debtors would be entitled to get restoration ofpossession of that separate allotment, unless their right to get restorationhas been taken away by cl. (b) of sub-s. (2) of that section.

5. We have already pointed out that if the decree-holderpurchases the judgment-debtors property in execution of the re-opened decreeand thereafter conveys the property to a bona fide purchaser for value therecannot be any restoration of possession to the judgment-debtor of that propertywhen, the decree is re-opened under the Moneylenders Act and a new decree ispassed. This is the effect of cl. (b). It would not make any difference whetherthat bona fide purchaser for value gave cash money as consideration for hispurchase or a bond or another property of his in exchange. We may, therefore,take it that if the decree-holder auction-purchaser makes an exchange of theproperty of the judgment-debtor that he had purchased in execution of thereopened decree with a stranger there would be no restoration of possession ofthat property to the judgment-debtor on the decree being re-opened. That casewould be covered, as we have already stated, by cl. (b) of sub-s. (2) of S. 36.The question therefore is whether partition can be regarded as exchange. Thatleads us to consider the true effect of a partition either by decree or bydeed. The point has been considered in a number of cases. In 25 Cal. 210 [LQ/CalHC/1897/105] Gyannessa v. Mobarakannessa (98) 25 Cal. 210 [LQ/CalHC/1897/105] , the question was whether apartition which was to be effected in terms of a solenama required a registereddocument. It was contended that partition is in substance an exchange andtherefore it could not be effected except by a registered instrument. Insupport of the contention that a partition was in substance an exchangereliance was placed on the decision in (1876) 3 Ch. D. 618 In re Frith andOsborne (76) 3 Ch. D. 618 : 45 L. J. Ch. 780 : 35 L. T. 146 : 24 W. B. 1061.The contention was, however, overruled, the learned Judges observing that

in deciding a question such as that which was raised beforethem the intricacies of the law of England relating to real property ought tobe avoided.

They held that partition was not in substance an exchange ofthe undivided share of a co-sharer over the whole common property in exchangeof the 16 annas share in a definite portion thereof, namely, the portion thatis allotted to him at the partition. This decision was approved in a laterdecision of this Court in 10 C. L. J. 603 Satya Kumar Banerji v. Satya KripalBanerji (09) 3 I. C. 247 : 10 C. L. J. 503. In our judgment the true characterof a partition is as fellows: (1) that it converts joint enjoyment into enjoymentin severally. In 54 I. C. 146 Indoji Jithaji v. Kothapali Rama, Charlu (20) 7.A. I. R. 1920 Mad. 20 : 54 I. C. 146, a Division Bench of the Madras High Courtobserved thus:

A partition is a division or an agreement among co owners tomake a division of their property in severalty. It effects a change in the modeof enjoyment of property, but , it is not an act of conveying property fromone living person to another.

In 43 Cal. 604 Atrabannessa Bibi v. Salatullah Mia (18) 3A. I. R. 1916 Cal. 645 : 43 Cal. 504 [LQ/CalHC/1915/264] : 31 I. C. 189, a question was raised asto whether a benamdar could institute a suit for partition. In the state of thelaw then understood Mookerji and Newbould JJ. held that a benamdar couldinstitute a suit for movables but he could not institute a suit for possessionof immovable property. This proposition is no longer good law, for, later on,the Judicial Committee of the Privy Council in 46 I. A. 1 Gur Narayan v.Sheolal Singh (18) 5 A. I. R. 1918 P. C. 140 : 46 Cal. 566 : 46 I. A. 1 : 49I. C. 1 (P. C.), have held otherwise. But in the course of that judgment thelearned Judges considered the nature of partition. They observed thus:

The object of a suit for partition is to alter the form ofenjoyment of joint property by the co-owners; or, as has sometimes been said,partition signifies the surrender of a portion of a joint right in exchange fora similar right from the co-sharer. Partition is thus the division made betweenseveral persons, of joint lands which belong to them as co-proprietors, so thateach becomes the sole owner of the part which is allotted to him; the essenceof partition is that the property it transformed into estates in severalty andone of such estates is assigned to each of the former occupants for his soleuse as his sole property.

Although partition thus resembles an exchange it is not anexchange. There is no conveyance but only transformation of the property. Theestate in common is transformed, that is, it takes only another form, namely,two or more estates to be possessed and enjoyed in severalty. By the partitiona cosharer gets a separate allotment by virtue of his antecedent title asco-sharer. There is thus no acquisition of property in another independentright. It is not a conveyance-it is not an exchange-and the separate allotmentis not obtained by another independent title. Clause (b) of S. 36 (2) would notbe attracted, nor would the proposition formulated by a Division Bench of thisCourt in 48 C. W. N. 105 Kamalakhya Choudhury v. Joy Chand Lal Babu (43) 48 C.W. N. 105 apply. We cannot therefore agree with the implication that may followfrom the observations of Sen J. in 46 C. W. N. 457 Naresh Chandra Gupta v. LalMahmud Bhuiya (42) 29 A. I. R. 1942 Cal. 379 : I. L. R. (1942) 2 Cal. 243 :202 I. C. 343 : 46 C. W. N. 457 at page 461. Sen J. based his decision on twogrounds. One was that as the final decree could not be re-opened after the mortgagesale as that decree was satisfied by the mortgage sale before 1st January 1939,the preliminary decree could not be re-opened also. The other ground was thatthe partition decree being not a decree passed in a suit to which the BengalMoneylenders Act applies could not be touched. It was therefore a decree whichwas protected

and the Court is prohibited from doing anything whichaffects such a decree in the exercise of its powers under the Act,

6. There was no question in that case of restoration of possessionto the mortgagor. At least that does not appear from the report. Theobservation that the partition decree could not be affected is sound. We cannotagree with the last mentioned sentence, if it implies that inasmuch asrestoration could not be made to the mortgagor in view of the partition decreethe preliminary and the final mortgage decrees could not be re-opened.Mukherjea J., however, expressly based his judgment on the first ground only,namely, whether the final decree could be re-opened and if the final decreecould not be re-opened by reason of its satisfaction before 1st January 1939whether the preliminary decree could be. In his judgment he says that that wasthe only point for consideration. The reason on second ground given by Sen J.,therefore is in effect a judgment of a single Judge and if the meaning of SenJ., in that passage be that which the learned advocate for the appellantimputes to it we are not bound by those observations..

7. There is another aspect of the matter. In 49 C. W. N. 30Jadu Nath Roy v. Kshitish Chandra (45) 32 A. I. R. 1945 Cal. 177 : 49 C. W. N.30, it was pointed out that the Legislature had a definite object in view indirecting restoration to the judgment-debtor on the re-opening of the decree,where the property of a judgment-debtor had been purchased by the decree-holderhimself in execution of the re-opened decree and was with him at the time whenthe application for relief was filed. It was to enable the judgment-debtor topay the instalments provided for in the new decree. If the contention of theappellant be accepted, it would in this case defeat the object of thelegislature. Here the re-opened decree was in contravention of the provisionsof the Bengal Money-lenders Act, because it had awarded interest to the lenderat a rate which is in excess of that provided for in the Act. Under cl. (c) ofsub-s. (1) of S. 36, the Court was bound to release the borrower of allliability in excess of the limits specified in cls. (1) and (2) of S. 30. Thatcould be done only by the re-opening of the decree (Renula v. Rai Montha NathBose Since reported in (45) 32 A. I. R. 1945 P.C. 108 as decided by theJudicial Committee of the Privy Council not reported yet) and by passing newdecree giving instalments. That has been done by the learned Subordinate Judgein this case and that portion of his judgment and decree has not beenchallenged before us nor could it be challenged before us now, after thatdecision of the Judicial Committee. Therefore, the new decree for instalmentsstands. It would be unreasonable to keep back the property from thejudgment-debtor and thereby to deprive him of the means to pay the instalments,though the property transformed in another shape is still with thedecree-holder purchaser. That is an additional reason why we would hold thatthe judgment-debtor should get restoration of the separate allotment given tothe decree-holder at the partition suit, which is in essence only atransformation of the judgment-debtors property as it was at the time of thesale at which the decree-holder purchased in execution of the re-opened decree.We accordingly maintain that part of the judgment of the learned SubordinateJudge by which restoration of possession has been ordered to thejudgment-debtors.

8. The third point put forward by Dr. Sen Gupta raises alsoan important question, namely, whether the costs of the partition should beadded to the new decree. It could be disposed of in a technical way for in theCourt below the decree-holder made no such claim and led no evidence to showwhat his costs were but we prefer to base our judgment on the merits, speciallyas the matter has been argued from the general point of view.

9. Dr. Sen Gupta, appearing for the decree-holder appellantplaces the matter in the following way: He says that suppose bare land of thejudgment-debtor had been purchased by the decree-holder himself in execution ofthe re-opened decree and that after his purchase and before any application forrelief by the judgment-debtor he had raised costly buildings or had made atgreat expense improvements on the lands. On general principles, he says, thejudgment-debtor ought to pay the costs of the building or the cost of theimprovement, if he is to have restoration. To the proposition so broadly statedthere would be, in our judgment, three answers: first, the question ofassessing the compensation and adding that to the new decree, would bepremature at the time of making the order for restoration for in the end it maybe that the judgment-debtor may fail to pay the instalment provided for in thenew decree. In that event the decree-holder would get back the property, theland with improvement. He would get back the property by virtue of theprovision of S. 36 (2) (e) on the basis of the title that he acquired at thecourt sale in execution of the reopened decree. The second answer is that inview of the principle laid down by Sir Lancelot Sanderson in 54 I. A. 218Narayan Das v. Jatindra Nath Roy (27) 14 A. I. R. 1927 P.C. 135:54 Cal. 669:54I. A. 218 :102 I. C. 198 (P. C.), the decree-holder may have only the right ofremoval of the buildings or of taking away the improvements that he hadeffected in the event of his sale falling through by the judgment-debtor payingall the instalments of the new decree. Our third answer is that if thedecree-holders right be not the right of removal but the right to getcompensation for the building or the improvement, that question cannot beadjudicated in these proceedings under S. 36, Bengal Money-lenders Act, and theamount assessed and added to the new decree for in that case it may amount to adenial of relief to the borrower in some, if not in many, cases. We hold thatfor the purposes of S. 36 all that the Court can add to the new decree are thoseamounts provided for in S. 36 (2) of the Act, namely, the costs in respect ofthe re-opened decree, and even that is left to the discretion of the Court. Ifthe decree-holder auction purchaser has the right to get compensation for thebuilding or the improvements he would be left to recover his dues in otherproceedings but not in the proceedings for relief by the debtor under S. 36 ofthe Act. For these reasons we overrule this point. In view of what we have lastsaid the claim for the costs of execution must also fall through.

10. The last question is the question of instalments. Itwould be difficult for us to say on the evidence that was before theSubordinate Judge that the latter was not right in giving as many as 20instalments, but before us the decree-holder has filed an affidavit annexing aconveyance executed by the judgment-debtors and their cosharers in December1944. Sufficient notice of this affidavit was given to the respondents. Thefacts stated in that affidavit have not been controverted by them. Theannexure, namely, the kabala, shows that for a consideration of Rs. 23,000 thejudgment-debtors along with their cosharers have sold to a solvent party 11items of property which had been purchased by the decree-holder himself in theother suit in respect of which appeal No. 83 was filed. The conveyance showsthat a sum of about Rs. 13,000 was retained by the purchasers for the purposeof paying the other creditors of the vendors as also the instalments for thenew decree passed in the other suit, being the subject-matter of appeal No. 83and that about Rs. 10,000 was given to the judgment-debtors and their cosharersin cash. It is admitted by the judgment-debtors advocate that thejudgment-debtors would be entitled to about Rs. 7000 out of the said Rs.10,000. That conveyance was executed as late as December 1944. Thejudgment-debtors have, therefore, cash money in their hands. That conveyancealso shows that there is a decree against the judgment-debtors for which theyhave to pay annual instalments of Rs. 1750. All these facts must be taken intoconsideration. The other fact that must also he taken into consideration isthis: that as a result of a robbery the judgment-debtors lost a large amount ofmoney and they were reduced to straitened circumstances. Their cloth businessis gone and the money-lending business which they had before the decree cannotbe in a flourishing state. They have 78 members of their family to maintain.Some of the descendants of the judgment-debtors their, sons and nephews aresalaried men but their monthly salary is very small. We are told that twoinstalments according to the new decree have already been paid. Taking allthese facts into consideration we think that the balance of the new decreeought to be paid in ten equal annual instalments and we direct accordingly. Thefirst of such instalments is to be paid within the month of chaitra 1352 B. Sand the succeeding instalments within the month of Chaitra of the succeedingyears. If there is default in the payment of any one of these instalments thedecree-holder would be entitled to get back possession of the property and inthat event the amount at which he had purchased at the court sale is to be setoff against the balance of the new decree. The respondents would be entitled torealise two-thirds of the costs of this Court from the appellant. The hearingfee is assessed at three gold mohurs.

Waight, J.

11. I agree.

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Sonatan Poddar and Ors. vs. Sreenath Chakravarty and Ors.(16.05.1945 - CALHC)