Civil Appeal No 2371 of 1969
From the Judgment and order dated 23 5 1968 of the Allahabad High Court in Special Appeal No 24766
G L Sanghi Mrs section Bagga for the Appellant
G N Dikshit and O P Rana for Respondents 1 5
section K Bagga for Respondent No 6 The Judgment of the Court was delivered by 181 SEN J
This appeal by certificate is directed against a judgment of the Allahabad High Court dated May 23 1968 whereby it upheld a judgment of a Single Judge of that Court dated March 16 1966 dismissing the applicants writ petition to quash recovery proceedings initiated by the Collector Azamgarh for realisation of the sum remaining due on account of a taccavi loan under s7 1 of the 
The facts leading to this appeal in brief are as follows The appellant and his brother Shashi Bhushan Gupta the sixth respondent constituted a joint Hindu family owning extensive zamindari properties over several districts in United Provinces including Azamgarh zamindari comprising of 34 villages
They owned an agricultural farm known as Mukundpur Farm situated in Azamgarh zamindari
It is alleged that by virtue of a family settlement in 1940 the appellant even though younger in age became the karta of the joint family
By his application dated February 25 1947 the appellant applied for a taccavi loan of Rs 122000 in the prescribed form for improvement of Mukundpur Farm to the Director of Agriculture United Provinces through the Collector Azamgarh
The property offered as security for advance of the loan was the zamindari rights in Azamgarh zamindari comprising of the aforesaid 34 villages bearing a land revenue of Rs 11000 
During the verification proceedings the appellant by his application dated February 22 1948 offered a security of his half share in Azamgarh zamindari which on enquiry by the Collector for the grant of sanction for the loan was evaluated at Rs 14386966p
The taccavi loan was duly sanctioned by the Government on September 23 1948
The appellant having defaulted in payment of the loan the Collector Azamgarh by his order dated March 24 1952 directed that the entire ilaqa lying in Tahsil Sagri district Azamgarh forming part of the hypothecated property be attached under section 150 of the UP Land Revenue Act 1901
It however seems that no attachment of any land situated in Tahsil Sagri forming part of the hypothecated property had in fact  been effected either under s150 of the UP Land Revenue Act or section 289 1 of the UP Zamindari Abolition and Land Reforms Act 1950
It appears that some plots at the Mukundpur Farm lying in two villages Mahnajpur and Ghaibipur were later taken under the management of the Collector under section 290 of that Act and half share hereof let out to tenants and the proceeds were adjusted towards the 182 outstanding taccavi dues
It also appears that a sum of Rs 389518P representing the appellant s half share of the compensation money due  and payable to him were adjusted under s6 e of the Act towards the loan
It is the appellant s case that there was a partition between the appellant and his brother the sixth respondent in 1951 and the hypothecated property was allocated to the share of the sixth respondent
This resulted in a compromise decree between the appellant and his brother the sixth respondent in Civil Suit No 72 of 1952 under the terms of which the sixth respondent undertook upon himself the liability to discharge the loan as the property offered in security had fallen to his share
In compliance thereof the sixth respondent actually paid Rs 1601250P
The Government was admittedly not impleaded as a party to the suit
On July 15 1952 the sixth respondent resiled from the terms of compromise and objected to the recovery proceedings being taken against him on the ground that the loan in question had not been taken by him nor had the appellant borrowed it in the capacity as karta of the joint family
He indeed denied the factum of partition
These objections were however over ruled by the Sales officer Azamgarh on October 22 1952
On May 15 1953 the appellant applied to the State Government for expunging his name from the debtor sheet
The application was forwarded by the Government to the Collector Azamgarh for enquiry and report
The appellant raised an objection alleging inter alia that the loan had been incurred by him in his capacity as karta of the joint Hindu family and that since the hypothecated property had fallen to 
to the share of the sixth respondent he was not personally liable to repay the loan
The Collector by his order dated January 18 1955 after holding an enquiry held that the appellant had taken the taccavi loan in his individual capacity and not as karta of the joint family and accordingly he was personally liable to repay the loan
He however directed the Sales officer that the recovery be made in the first  instance from the hypothecated property before proceeding against the appellant personally
The action taken by the Collector was duly endorsed by the Land Reforms Commissioner by his letter dated April 7 1955 and approved of the State Government by its order dated July 22 1955
The recovery proceedings were accordingly initiated against the appellant
lt appears that the appellant was a Member of the Legislative Assembly and apparently wielded considerable influence
He appears 183 to have addressed a representation to the Chief Minister on April 1 A 1956
The State Government referred the matter to the Commissioner Gorakhpur Division Gorakhpur who by his letter dated October 19 1956 stated that he was fully in agreement with the Collector that the appellant must be treated as having taken the loan in his individual capacity and proceedings for its recovery had to be taken against the hypothecated property as well as against him personally
The latter also mentioned that the Collector had been asked if necessary to explain the case personally to the Chief Minister
Evidently the State Government after reviewing the matter at all levels by its order dated August 13 1957 directed that the realisation of the taccavi dues outstanding against the appellant should be made from the hypothecated property as well as from his person immediately
It further directed that all the modes for recovery legally permissible should be adopted against him simultaneously and pursued vigorously 
Despite all this the appellant has not paid a pie towards the outstanding debt except through coercive process
On December 17 1 1957 the appellant addressed a representation to the Board of Revenue although under the taccavi rules no appeal or revision lay to the Board
It is somewhat strange that the Addl
Land Reforms Commissioner contrary to the Government s orders in that behalf submitted a report on his own upholding the appellant s contention that he had borrowed the loan in his capacity as karta of the joint family and recommending that the loan in question should be recovered from the hypothecated property
The state Government naturally did not act upon this gratuitous advice
On June 19 1959 the appellant has informed of the Government s decision
Thereafter the Collector started proceedings for realisation of Rs 7215250P as principal and Rs 2368981P as interest
Thereupon the appellant on August 4 1959 moved the Allahabad High Court under article 226
The appellant s writ petition was dismissed by a learned Single Judge
It appears that the contention that the loan was incurred by him as karta of the joint Hindu family was not raised before the learned Single Judge as he observes It appears that recovery proceedings were taken against the Mukundpur Farm which it is not disputed belongs exclusively to the petitioner
He negatived the contention that the Collector had let out a part of the Mukundpur Farm in 1952 and therefore after expiry of a period often years the Government was precluded by reason of s291 3 of the UP Zamindari Abolition and Land Reforms Act from further continuing the recovery proceedings
He held that this involved a 13 475 SCI79 184 disputed question of fact as according to the Government certain plots of Munkundpur Farm were first let out in 1959 60 and not in 1952 and therefore the bar of s291 3 was not applicable
As regards the contention based on s6 e of the Act that the Government had no power to make the recovery except from out of the compensation amount he held that the provision did not debar the Government from proceeding otherwise
On the question of accounting he held that the submission calls for an accounting of the amount received by such letting out and there was no material upon which the decision of the Court could rest
On appeal the appellant for the first time raised an objection as to his personal liability alleging that the loan in question was incurred by him in the capacity of karta and therefore recoverable from the hypothecated property alone
There was a difference of opinion on the question between the learned Judges constituting the Bench as to whether he had taken the loan as karta of the joint family or in his individual capacity but nonetheless the appeal failed because they repelled all other contentions
Four questions arise in this appeal 1
Whether the taccavi loan was incurred by the appellant as a karta of the joint Hindu family and not in his individual capacity and therefore the loan in question has to be recovered from the sixth respondent inasmuch as the hypothecated property had fallen to his share in a family partition  2
Is the Collector precluded from taking resort to any one or other modes prescribed by s7 1 of the  for recovery of the sum remaining unrealised towards the taccavi loan by reason of s289 2 or s291 3 of the UP Zamindari Abolition and Land Reforms Act 1950 3
Have the Government no right to recover the outstanding amount due except from the compensation amount in terms of s6 e thereof 4
Was the Government bound to render an account of the rents and profits derived from letting out of the plots of Mukundpur Farm Section 7 1 of the  reads as follows 7 1 Subject to such rules as may be made under section ten all loans granted under this Act all interest if any chargeable thereon and costs if any incurred in making the same shall when they become due be recoverable by the Collector in all or any of the following modes namely a from the borrower as if they were arrears of land revenue due by him 185 b from his surety if any as if they were arrears of land A revenue due by him c c out of the land for the benefit of which the loan has been granted as if they were arrears of land revenue due in respect of that land d out of the property comprised in the collateral security if any according to the procedure for the realization of land revenue by the sale of immovable property other than the land on which that revenue is due
 on the first point we agree with one of the learned Judges Uniyal J
The conclusion reached by the learned Judge that the taccavi loan was taken by the appellant in his individual capacity  is the only conclusion possible
The appellant maintained that the loan was incurred for family purposes ie for improvement of Munkundpur Farm by the appellant in his capacity as the karta and it having fallen to the share of the sixth respondent in the family partition the recovery proceedings against the appellant under section 7 were not maintainable
We fail to see how can the appellant escape liability on this account
The Government was not a party to Civil Suit No 72 of 1952 and was therefore not bound by the terms of the compromise decree
Nor was the Government bound by the alleged partition effected between the appellant and the sixth respondent
It matters little whether there was a partition or not in 1951 and if so whether the hypothecated property had fallen to the share of the sixth respondent
The appellant had bound himself by the terms of the taccavi bond to discharge the liability from his property The instrument is not on record
The document was however before the High Court
Uniyal J in the course of his judgment with regard to appellant s personal liability observes He pledged his half share in 34 villages of Tahsil Sagri
After verification of the proprietary rights of the appellant in the hypothecated property the Collector issued a certificate declaring that the same as sufficient to cover the amount of taccavi loan
Thereupon a formal document in the nature of taccavi bond was executed by the appellant of the one part and the Collector of the other part evidencing the transaction of loan
A list containing particulars of the immovable property was annexed to the bond and it was stated therein that a half share of the appellant in the said zamindari property had been pledged by way of security Emphasis supplied The correctness of this observation is not open to question
The learned Judge then goes on to say 186 The naqsha maliyat attached to the taccavi bond clearly mentioned the details of the hypothecated property in tahsil Saygri consisting of one half share of the appellant
 He then rightly concludes saying It is of no consequence if the creditor proceeds against the share of the Karta alone in the joint family property hypothecated as security for the loan or from his person or both
 We concur in the conclusion reached by the learned Judge that the loan in question was taken by the appellant in his individual capacity and not as a karta of the joint Hindu family
Even assuming he took the loan as karta still he would be personally and severally liable to repay it
The remaining points are equally devoid of substance
The contention based on section 289 2 of the UP Zamindari Abolition and Land Reforms Act 1950 does not arise
No doubt the Collector is em powered under section 7 1 of the to recover all the taccavi dues from the defaulter as arrears of land revenue and by reason of section 288 the provisions of section 289 are attracted
By section 288 it is provided that the provisions of the Act with regard to the recovery of arrears of land revenue shall apply to all arrears of land revenue and  sums of money recoverable as arrears of land revenue  due at the commencement of the Act
The Collector could therefore have taken resort to section 289 1 for the recovery of the unrealised amount of the taccavi loan by attachment and sale of properties belonging to the appellant
But the ilaka of Tahsil Sagri was not in fact ever attached under section 289 1
In the instant case no previous sanction of the Board of Revenue was obtained under section 2722
Consequently the attachment could not be said to be one made under section 289 1
Further section 289 applies only to those cases in which the provisions of section 2431 have been made applicable by the Government under a notification issued under section 243 2 
It is nobody s case that a notification contemplated by section 243 2 was ever issued
The question of section 289 2 operating as a bar to the recovery proceedings after expiry of a period of three years therefore does not arise
There is also a fallacy in the argument
The provisions of section 289 run thus
Attachment of village for arrears of land revenue 1 At any time after an arrear of land revenue has accrued the Collector may attach the village or any area therein 187 in respect of which the arrear is due and place it under his own A management or that of an agent appointed by him for that purpose for such period as he may consider necessary Provided that the period for which any village or any area therein may be so attached shall not exceed three years from the commencement of the agricultural year next following the date of attachment and the attachment shall be cancelled if the arrears are sooner liquidated
2 Upon the expiry of the period of attachment the village shall be restored free of any claim on the part of the Government for any arrear of land revenue due in respect thereof
 When an arrear of land revenue has accrued the Collector may under section 2891 attach a village or any area therein in respect of which the arrear is due and place it under his own management or that of an agent appointed by him for that purpose
The proviso to section 289 1 however interdicts that the period for which any village or any area therein may be so attached shall not exceed three years from the commencement of the agricultural year next following the date of attachment and the attachment shall be cancelled if the arrears are sooner liquidated
If section 289 2 is read in the context of sub section
1 it will be clear that upon the expiry of the period of three years the village has to be restored free of any claim on the part of the Government for any arrear of land revenue due in respect thereof
The consequence that ensues is that liability for payment of land revenue in respect of the village or any area therein in respect of which arrears are due stands discharged
There is a distinction between arrears of land revenue and other government dues recoverable as if they were arrears of land Revenue
In respect of other sums of money recoverable as arrears of land revenue the debtor is not discharged of his liability for payment of such dues even after three years
The next question is whether by virtue of section 291 3 the appellant stood relieved of all liability for payment of arrears of taccavi due after the expiry of ten years
We may here read section 291 3
It is in these terms 291 3 Upon the expiry of the period of lease the holding shall be restored to the tenure holder concerned free of any claim on the part of the State Government for any arrears in respect of such holding
 188 The High Court has relied upon the affidavit of the Chief Revenue Accountant Collectorate stating that certain plots of Mukundpur Farm were for the first time let out in the year 1959 60
It would therefore appear that the period of ten years had not expired when the recovery proceedings were initiated
There remains the question whether the Government is bound to recover the unrealised sum of taccavi loan from the amount of compensation money and relying upon section 6 e of the UP Zamindari Abolition and Land Reforms Act it is urged that is the only remedy left
The contention we are afraid proceeds on a misconception of the purport and effect of section 6 e of the Act which reads 6e
all amounts ordered to be paid by an intermediary to the State Government under Sections 27 and 28 of the UP Encumbered states Act 1934 and all amounts due from him under the  or the Agricultural Loans Act 1884 shall notwithstanding anything contained in the said enactments become due forthwith and may without prejudice to any other mode of recovery provided therefor be realized by deducting the amount from the compensation money payable to such intermediary under Chapter III
 It is plain upon its terms that the provisions of section 6e are not obligatory
It is an enabling provision
It provides that all amounts due under the  shall notwithstanding anything contained therein become due forthwith  upon the vesting of the zamindari rights
It then lays down that such dues may with out prejudice to any other mode of recovery provided therefor be realised by deducting the amount from the compensation money payable to such intermediary
It therefore provides an additional mode of recovery for realisation of the dues
The word may  in section 6e clearly indicates that the Government has the option to fall back upon the compensation amount
It does not entail in the consequence that the mode indicated in section 6e is the one and the only mode available
The High Court has observed that the entire amount of compensation money which fell to the appellant s share amounting to Rs 389518P had been adjusted towards the loan on the basis that the half share of the appellant in the zamindari property had been hypothecated as security for the loan
The recovery proceedings now pending before the Collector is for the balance remaining after such adjustment together with interest
It was faintly argued by learned counsel for the appellant that the Government was bound to render an account of the rents and profits 189 realised from the letting of plots of Mukundpur Farm but he did not A pursue the argument any further and rightly so
The High Court has observed that it had scrutinized the accounts maintained by the Government and the same have been maintained as required by the taccavi rules as per appendix A  to Form VII
It was certainly not open to the High Court to grant any such relief under article 226 of the Constitution particularly when it involved consideration of disputed question of fact
The result therefore is that the appeal fails and is dismissed with costs
PBR Appeal dismissed


Summary:
The appellant and the sixth respondent who were brothers constituted a joint Hindu family
Though younger in age than the sixth respondent the appellant by virtue of a settlement became Karta
Of the joint family
The family owned vast Zamindari properties
One of which was a Farm known as Mukundpur Farm
For the improvement of the Farm the appellant took taccavi loan by offering his half share in the joint family property as security
On his failure to repay the loan the Collector of the District ordered attachment of the hypothecated property under section 150 of the UP Land Revenue Act 1901
The appellant alleged that as a result of the partition of properties between him and his brother the hypothecated property fell to the share of his brother that under the compromise decree his brother undertook to discharge the loan and that therefore it was he who was responsible for repayment of the loan
The Government however was not impleaded as a party to the suit in which compromise was arrived at between the brothers Sometime later the sixth respondent resiled from the compromise decree and stated that he was not liable to repay the loan because it was not taken by the appellant in his capacity as Karta of the joint family but that it was taken only in his appellant s personal capacity and that therefore he alone was liable to repay it
The Collector made enquiries and held that the loan was taken by the appellant in his individual capacity and not as Karta of the joint family and held that he was personally liable to repay the loan
Eventually it was decided that the realisation of the dues should be made from the hypothecated property as well as from his person and accordingly proceedings for realisation of the principal and interest on the loan were started
The High Court rejected the appellant s writ petition
In appeal the following three questions were raised
 I  whether the taccavi loan was taken by the appellant as Karta of the joint family and therefore had to be recovered from the sixth respondent to whose share the hypothecated property had fallen in the partition of the property 2 Whether the Collector was precluded from taking resort to any one of other modes prescribed by section 71 of the land Improvement Loans Act 1883 for recovery of the sum remaining unrealised towards the taccavi loan 3 Whether the Government had no right to recover the outstanding amount due except from the compensation amount in terms of section 6 e  thereof   HELD 1
The loan in question was taken by the appellant in his individual capacity and not as Karta of the joint family
By the terms of the taccavi bond the appellant had bound himself to discharge the liability from his property
Even 180 assuming that he took the loan as Karta he was personally and severally liable to pay
In the compromise suit the Government was not made a part and therefore was not bound by the terms of the compromise decree nor was the Government bound by the alleged partition effected between the
appellant and the sixth respondent
185 D E 186C 2a Section 71 of the Land Improvement Loans Act empowers the Collector to recover taccavi dues from the defaulter as arrears of land revenue and the Collector could have taken resort to s2891 of the UP Zamindari Abolition and Land Reforms Act 1950 for the recovery of the unrealised amount of taccavi loan by attachment and sales of properties belonging to the appellant
Section 289 applies only to those cases in which the provision of section 2431 have been made applicable and it is nobody s case that a notification contemplated by section 2432 was ever issued
The question of section 2892 operating as a bar to the recovery proceedings upon expiry of period of three years therefore does not arise
If section 2892 is read in the context of sub section
1 it will be clear that upon the expiry of the period of three years the village has to be restored free of claim on the part of the Government for any arrear of land revenue due in respect thereof
The consequence that ensures is that liability for payment of land revenue in respect of the village or any area therein in respect of which arrears are due stands discharged
But in regard to other Sums of money recoverable as arrears of land revenue the liability continues
186D G 187E F b As section 2913 contemplates that upon expiry of the period of lease the holding shall be restored to the tenure holder concerned free of any claim on the part of the State Government for any arrears in respect of such holding
In this case the period of the lease had not expired when the recovery proceedings were initiated
188A B 3
Section 6c provides that all amounts due under the Land Improvement Loans Act shall become due forthwith upon the vesting of the Zamindari right
It also provides that such dues may without prejudice to any other mode of recovery provided therefor be realised by deducting the amount from the compensation money payable to such intermediary
What it provides is an additional mode of recovery for realisation of the dues
Under the scheme the Government has the option and the mode indicated in the section is not the one and the only mode available
The recovery proceedings pending before the Collector were for the remainder of the loan after such adjustment together with interest
188F G