Bashirahmad Gousmohiddin Mulla vs Taluka Executive Magistrate, Belgaum and Others

Hari Nath Tilhari, J.-By these petitions, the petitioners have challenged the order dated 27-11-1998 passed by the Taluka Executive Magistrate, Belgaum, in Case No. KDR/BGM/CR/1/95-96 under Section 4(f) read with Section 5 of the Karnataka Debt Relief Act, 1976, whereby the Taluka Executive Magistrate, Belgaum, has allowed the application of the respondents and ordered that the debt, stands redeemed and the mortgage property shall be released in favour of the applicants (respondents herein).

The facts of the case in brief are:

That respondents 2 to 8 in the present writ petitions filed application under Section 4(f) read with Section 5 of the Karnataka Debt Relief Act, 1976 claiming themselves to be the debtors belonging to the weaker sections of the people and to be entitled to the relief under the Act and prayed that the debt be declared discharged and possession of the mortgaged property be restored and the property which according to respondents 2 to 8 had been mortgaged by the deed dated 13-3-1957 and put in possession of the respondents. According to the case of the respondents-applicants, the deed dated 13-3-1957 was a "Muddati Kharidi Patra" or conditional sale deed, which was executed by Annappa Piraji Kalal, Narayan Annappa and Ramakrishna Annappa Kalal for themselves and for minor as guardian of Parashuram Annappa in favour of Shivaji Umaji Raibagkar (petitioner in Writ Petition No. 37400 of 998) for a sum of Rs. 1,500.00. The said deed further provides that within five years from the date of the deed, a sum of Rs. 1,500/- and expenses incurred by the transferee for repairs etc., is paid by the transferers viz. Annappa Piraji Kalal and two others i.e., the persons who had executed the mortgage deed to Shivaji Umaji Raibagkar, the property shall be reconveyed and given to the persons executing the said deed. The present respondents 2 to 7 are the legal representatives of Narayan Kalal and respondent 8 in the Writ Petition No. 37400 of 1998 has been the son of Annappa and he has been one of the executors of the deed on whose behalf Narayan executed the deed. It may be mentioned here that Parashuram Annappa Kalal also died during the pendency of the writ petition and his heirs respondents 8-A and 8-B were brought on record. Parashuram Annappa Kalal died on 2-1-1999, while Narayan Kalal, the husband of Smt. Anasuya (respondent 2) in the writ petitions as well as the father of respondents 3 to 7 died in the year 1973. According to the case of the respondents, Annappa Piraji Kalal and his sons three persons borrowed a sum of Rs. 1,500/- from the petitioner and mortgaged the property bearing C.T.S. No. 161 situated in Khade Bazar, Shahapur, Belgaum and the backyard on 13-3-1957 a registered mortgage deed, which according to the present writ petitioners is described as "Muddati Kharidi Patra" or conditional sale deed. In the application it was asserted that this property did fall to the share of Narayan Kalal, husband of respondent 2 and the father of respondents 3 to 7 and to the share of Parashuram and another Ramakrishna, had no interest in the property. On this basis respondents 2 to 8 claiming themselves to be the debtors and applied for the relief under Section 4(f) of the Act, alleging that their annual income from all sources did not exceed Rs. 2,400/- and the alleged debt has to be deemed to stand discharged. It may be stated that C.T.S. Nos. 161 and 162, according to the respondents'' allegation in their application fell to the share of the two brothers Narayan and Parashuram and Ramakrishna had no interest in those properties. Being aggrieved by the order dated 27-11-1998 passed by the Taluka Executive Magistrate allowing the said claim the petitioners have filed the present writ petitions under Articles 226 and 227 of the Constitution of India.

It has been contended by the learned Counsel for the petitioners that the original debtor-Annappa Piraji Kalal had died in the year 1968 and Narayan Kalal died in the year 1973 i.e., before coming into force of the Karnataka Debt Relief Act, 1976, which Act came into operation on 13th March, 1976. The learned Counsel has contended that the two mortgagors i.e., the two persons who executed the deed on 13-3-1957, the petitioners assert to be the sale deed, though it has been found by the Assistant Commissioner to be the mortgage deed. The learned Counsel, Sri Balakrishna Shastry submitted that the application under Section 4(f) of the Karnataka Debt Relief Act, 1976 was not maintainable as the alleged debtors have died long before the coming into force of the Act. The learned Counsel for the petitioners in support of his contention made reference to the decision of the Division Bench of this Court in the case of Smt. Gowramma v Taluk Magistrate and Tahsildar, Malavalli and Another, 1986(1) Kar. L.J. 406 (DB), the decision of the Single Judge in the case of M/s. Rayappa Thimmappa Hulekal v Annapurnabai, ILR 1985 Kar. 585 and in the case of Merry Muttu v Tahsildar, Hunsur and Another, 1986(2) Kar. L.J. 1, and contended that the debtor in the Act does not include the legal heirs or representatives and in particular. In a case like this it will not be open to move the application under Section 4 of the Act where the original debtors have died earlier to the coming into force of the Act, as in such case the benefit of Act of 1976 could not be extended.

The above contentions of the learned Counsel for the petitioners have been hotly contested by the respondents.

The learned Counsel for the respondents, Shri Bhat contended that one of the original debtors who had taken a sum of Rs. 1,500/- from the present petitioner has been very much alive even after the coming into force of the KD.R. Act, 1976 and even thereafter and has been impleaded as respondent 8 in this writ petition. The learned Counsel contended that as one of the debtors and executors of the deed dated 13-3-1957 was alive on the date of the coming into force of the Act, it cannot be contended that the application under Section 4 was not maintainable. There is no doubt as regards the bare proposition of law that if the original mortgagors or debtors died before the coming into force of the K.D.R. Act, 1976, which came into operation and particularly the provisions of Sections 3, 4 and 7 of which came into operation on 21st October, 1976, the mortgage debt did not stand redeemed, nor did debt stand discharged, the application could not be made by the heirs. But if the debtor who had executed the mortgage deed/died after the coming into force of the K.D.R. Act, 1976, then by operation of law the debt is deemed to be discharged and the debtor can be said to be entitled to claim the property free from all encumbrances and if such property has been inherited by any heir, widow or son then he or she had the right to move the authority under the Act for being put in possession of the property. But if the debtor or mortgagor has died before the coming into force of the Act, then the position may be different. The Division Bench held that if the death had taken place before the coming into force of the Act, the position may be different. But if the debtor had been alive on the date of the coming into force of the Act and thereafter died, then his heirs or widow are entitled to move the application and in such a case the question could be investigated or tried has been as to when did the debtor die. In the present case, no doubt out of the persons who had jointly taken the loan Annappa Piraji Kalal and Narayan Annappa even if died before coming into force of the Act, but Parashuram Annappa Kalal, who is also mentioned as the person taking the loan or receiving money under the deed dated 13-3-1957 had been alive on the date of the coming into force of the Act. Therefore, the application at his instance was maintainable and it can''t be rejected simply on the ground of misjoinder of the heirs of Annappa Piraji Kalal and Narayan Annappa. The application as such as maintainable at the instance of the present respondent 8, who was one of the petitioners in Case No. KDR/BGM/CR/1/95-96.

The learned Counsel for the petitioners further contended that the authorities had failed to record the finding that the annual income of the applicants i.e., respondents and in particular of respondents 1 and 8 was less than Rs. 2,400/-. Unless it was found that the annual income of the debtor from all sources i.e., applicant 7 was less than Rs. 2,400/-, he could not come within the four corners of the definition of the debtor belonging to the weaker sections of the people as defined in Section 3(c)(iii) read with clause (g) of Section 3 of the K.D.R. Act, 1976. The learned Counsel pointed out that the authority has found that the petitioners belonged to the weaker sections of the people as their annual income was less than Rs. 4,800/-. The learned Counsel has contended that if the annual income is less than Rs. 4,800/- then it must be more than Rs. 2,400/- per annum and as such the applicants did not come within the framework of debtor as defined in Section 3(c) read with Section 3(g) of the Act. It appears that there appears some substance. But I find that here the Taluka Executive Magistrate was mislead and did not apply his mind to the real aspect of the matter that proceedings were taken under the K.D.R. Act, 1976 and not under the K.D.R. Act, 1980. Under the Act of 1980 "weaker section of the people" has been defined vide Section 2(ii) to mean persons, whose annual income from all sources does not exceed four thousand and eight hundred rupees. It appears that the Taluka Executive Magistrate has acted keeping in view the provisions of the Karnataka Debt Relief Act, 1980 and not the provisions of the Karnataka Debt Relief Act, 1976. He had not applied his mind to the provisions of the K.D.R. Act, 1976. This appears to be an error apparent on the face of the record.

As regards the nature of the document, the finding has been recorded by this Court in the earlier writ petition between the same parties that the deed dated 13-3-1957 as per its recital is a mortgage deed. Once this finding has been arrived at, it is binding on the parties and it remains intact.

In view of the fact that whether the petitioners belong to the class of debtor under Section 3(c)(iii) and clause (g) thereof if a question which has to be decided afresh on the basis of the evidence on record afresh as to whether the annual income from all sources of Parashuram Annappa Kalal, the applicant who has been entitled to move the application has been less than Rs. 2,400/- as on the date of the coming into force of the Act. If yes, then definitely in view of the findings on other points viz., to the effect that the application of Parashuram Annappa Kalal had been maintainable and the benefit of the Act would be available to him as he was alive as on the date of the coming into force of the Act. If it is established that the annual income of Parashuram as on the date of the coming into force of the Act and is established on the date of enforcement of Sections 3, 4 and 7 that is on October 1976 is and has been less than Rs. 2,400/- per annum his application will have to be allowed and he will be entitled to the benefit of the provisions of Section 4(f) of the Act. But if the finding is otherwise i.e., it has been more than two thousand and four hundred rupees per year, the application under Section 4 will liable to be rejected. In view of the above meaning, the findings on the two points i.e., the deed dated 13-3-1957 is a mortgage deed as held earlier by this Court in Writ Petition No. 9509 of 1984 and the finding that Parashuram was alive as on the date of coming into force of the Act, if it is proved and his annual income for all sources was less than two thousand and four hundred rupees, he will be entitled to the benefit.

The writ petitions as such, are hereby allowed.

The matter is remanded to the Taluka Executive Magistrate, Belgaum, to consider the question as to whether was the annual income from all sources of Parashuram, one of the original debtors as on the date of the coming into force of the Act, less than two thousand and four hundred rupees or more than two thousand and four hundred rupees and the fate and result of that application will depend upon the finding as mentioned above.

The Taluka Executive Magistrate, Belgaum, is directed to decide the matter afresh, keeping in view the above directions, after due notice to the parties.