Bappu and Others vs Moideenkutty and Another

Ansari, C.J.—The revision petitioners are heirs of one, who had executed a document purporting to be a sale deed. They had applied under the Kerala Agriculturists Debt Relief Act No. XXXI of 1958, claiming the transaction not to be a sale deed, but a mortgage. The application is in Form VIII to Rule (7)2, which has been framed u/s 24 of the Act and provides as follows:

7(1) An application under Sub-section (1) of S. 9 of the Act by an agriculturist, to re-open any subsisting transaction on the ground that it is really a transaction of debt or to establish that the amount mentioned in the transaction is not the actual amount, shall be in Form VII. Such applications shall bear a court-fee stamp of the value of Rs. 0-75 nP.

(2) An application under sub-section (3) of S. 9 of the Act for a declaration that a transaction entered into on or after 1-1-1946 and purporting to be a sale of immovable property or a lease of usufructs to be really a transaction of debt, shall be in form VIII and shall bear a court-fee stamp of the value of Rs. 0-75 nP.

The Munsiff has declined to entertain the application on the ground of the Rule being ultra vires due to Section 9(3) containing no words that provide for applications being filed for the purpose. This extraordinary conclusion in the words of the Munsiff reads as follows:

The rules are ultra vires the authority of the Government that is conferred by S. 24 of the Act. The absence of an express permission in S. 9, clause 3 as contradistinguished from the express provisions, for such petitions available in some other sections of the Act makes it crystal clear that the Legislature has denied a simple application for purpose of getting relief under that section. Going through Ss. 7 clause 1, 8 cl. 1, 9 cl. 1, 12 cl. 1, 15 and 22 clause 1 sub-clause 2, it can be see that the Legislature has provided for applications in various matters. Absence of such a provision in clause 3 of S. 9 is conspicuous. If the intention of the Legislature was to make a petition competent for this purpose also, it should have been made clear in other cases. So I accept the counter-petitioner''s contention and hold that a petition is not competent under this Section.

The conclusion is so obviously incorrect, that the respondent''s learned Advocate has made no efforts to sustain it. It is clear that when courts are vested with fresh jurisdiction, the procedure generally followed by courts would apply to new proceedings as well, and one rule of the general procedure is that a party must invoke the court''s jurisdiction. Further, we have long past the stage of pleadings in courts being oral. Therefore a party invoking the court''s jurisdiction u/s 9(3) must apply in writing and the Legislature aware of the consequences following the jurisdiction being vested in courts need not expressly provide for a party taking steps to enforce the right. It further follows that the Rule is not ultra vires and that the absence of the word ''application'' in the sub-section is not fatal. These revision petitioners in these circumstances must succeed. The respondents'' learned advocate has also taken the objection that no application can be made u/s 9(3), for, the benefit under it is only conferred on parties to the transactions and the heirs of such parties cannot claim the relief. That objection is raised in revision for the first time, and, therefore I decline to adjudicate on it. The respondent, however, is at liberty to raise the objection in the lower court should he so wish to do so. Accordingly this revision petition is allowed, the order under revision is vacated and the court below is directed to proceed further with the application. The costs will abide the final result.