Case: Naunihal Kishan And Others Vs. R. S. Ch. Pratap Singh And Another

the creditor (sic) (debtor?) and that it was incompetent for a debtor to invoke the jurisdiction of the Tribunal to effect the scaling down and adjustment by an application under S. 5. We do not consider that this argument merits serious consideration. Section 5(1) of the Act which we have extracted enables a "debtor" to make an application to the tribunal to the adjustment of his debts. In view of what we have stated earlier the amount due on or secured by the mortgage is a "debt" within the meaning of S. 5 to settle which an application could be filed and the debt being a secured debt answering to the description contained in the main part of S. 16(4), the applicants were entitled to have an adjustment in terms of that specified in the proviso to that section. Though this point about the locus standi of the respondent-debtors to file the application has been persisted in by the appellants at every stage of these proceedings, we consider that there is no merit in it and it has to be rejected on the plain terms of S. 5 read with S. 16.9. (3) The third and last objection urged by the learned Counsel turns on the language of the proviso to S. 16(4) which we shall extract once again :"Provided that in either case the amount of the debt shall be only that amount as bears to the total debt the same proportion as the value of the lands allotted to the creditor in India bears to the value of the lands left behind by him in the West Pakistan and to that extent the debt shall be deemed to have been reduced."Learned Counsel pointed out that the scaling down effected in the present case was on the following basis. The total mortgage-debt under the mortgage deed was computed at Rs. 51,700/- calculating interest as permitted by the relevant statutory provisions and taking into account S. 29 which we have already extracted. The correctness of this figure was not disputed. The quarrel of learned Counsel was in regard to what follows and that is stated in the order of the Tribunal which has been confirmed by the appellate Court in these terms :"The total mortgaged land now belonging to the petitioner (Pratap Singh) and respondent No. 5 (Sham Singh) has been assessed as equivalent to 359 standard acres 14 3/4 units (329 standard acres 13 3/4 units of the petitioner plus 22 standard acres 61/2 units of the respondent No. 5) and in lieu thereof the mortgagors have been given in all 51 standard acres 9 units (37.4 to the petitioners and 14.5 to the respondent No. 5). As provided under S. 16(4) of the Act the amount of the debt payable to respondents 1 and 4 has been reduced in the same proportion in which the land has been allotted to the mortgagors. For the land belonging to them the mortgage debt amounting to Rs. 51,700/- when reduced to this proportion comes approximately to Rs. 7,420/-."10. It is this reduction that learned Counsel complains as not justified by the proviso. The argument is that under the proviso to S. 16(4) the reduction of the debt has to bear the same proportion as "the value of the lands" allotted to the creditor in India bears to "the value of the lands" left by him in Pakistan. "Value" learned Counsel says, means market value. It is urged that value of neither of the lands was computed on that basis but that the Tribunal took into account merely the proportion between the two extents or areas i. e., the standard acres left in Pakistan compared to the standard acres allotted in India in lieu thereof. This contention that the procedure adopted does not accord with the requirements of the proviso has been rejected by all the Courts and, in our opinion, correctly.The fallacy in the argument of learned Counsel consists in ignoring the fact that in computing the standard acres left by a displaced person in Pakistan the rehabilitation authorities are, under the relevant rules and instructions, directed to take into account the income yield of the two sets of lands and thus the "value" of the land left behind is reflected in ascertaining the "standard acres". Thus though market value in the sense of what a willing purchaser would pay for the land left behind was not ascertained - it was obviously not practicable to ascertain it - the rules etc. made sufficient provision for such a valuation to be reflected in the computation of the area to be allotted instead. The nature of the land left behind - whether it was canal-irrigated, well-irrigated, or dry or merely rain-fed - was taken into account and numerical factors were prescribed based on these criteria for ascertaining the equivalent of those lands in India. It was after such a computation was made that the 7531 Kanals and odd of land which belonged to the respondents was equated to 359 and odd standard acres. If therefore 359 standard acres were the equivalent in value of the land left behind, regard being had to the circumstances we have indicated, there cannot be any complaint that there has been a departure from the method of adjustment specified in the proviso to S. 16(4) when the debt as ascertained and computed in accordance with S. 29 of the Act and other relevant statutory provisions was scaled down under S. 16(4) by multiplaying it by 51/359, or 1/7th. We are further of the opinion that when the provision in proviso to S. 16(1) spoke of "value" it must have had in contemplation the value as determined by the procedure for fixing the same under the relevant rules for the computation of equivalents of property of displaced persons left behind in Pakistan and the allotment of evacuee property to them in India. There is no substance, therefore, in this point either. These were the only points urged before us.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is this reduction that learned Counsel complains as not justified by the proviso. The argument is that under the proviso to S. 16(4) the reduction of the debt has to bear the same proportion as "the value of the lands" allotted to the creditor in India bears to "the value of the lands" left by him in Pakistan. "Value" learned Counsel says, means market value. It is urged that value of neither of the lands was computed on that basis but that the Tribunal took into account merely the proportion between the two extents or areas i. e., the standard acres left in Pakistan compared to the standard acres allotted in India in lieu thereof. This contention that the procedure adopted does not accord with the requirements of the proviso has been rejected by all the Courts and, in our opinion, correctly.The fallacy in the argument of learned Counsel consists in ignoring the fact that in computing the standard acres left by a displaced person in Pakistan the rehabilitation authorities are, under the relevant rules and instructions, directed to take into account the income yield of the two sets of lands and thus the "value" of the land left behind is reflected in ascertaining the "standard acres". Thus though market value in the sense of what a willing purchaser would pay for the land left behind was not ascertained - it was obviously not practicable to ascertain it - the rules etc. made sufficient provision for such a valuation to be reflected in the computation of the area to be allotted instead. The nature of the land left behind - whether it was canal-irrigated, well-irrigated, or dry or merely rain-fed - was taken into account and numerical factors were prescribed based on these criteria for ascertaining the equivalent of those lands in India. It was after such a computation was made that the 7531 Kanals and odd of land which belonged to the respondents was equated to 359 and odd standard acres. If therefore 359 standard acres were the equivalent in value of the land left behind, regard being had to the circumstances we have indicated, there cannot be any complaint that there has been a departure from the method of adjustment specified in the proviso to S. 16(4) when the debt as ascertained and computed in accordance with S. 29 of the Act and other relevant statutory provisions was scaled down under S. 16(4) by multiplaying it by 51/359, or 1/7th. We are further of the opinion that when the provision in proviso to S. 16(1) spoke of "value" it must have had in contemplation the value as determined by the procedure for fixing the same under the relevant rules for the computation of equivalents of property of displaced persons left behind in Pakistan and the allotment of evacuee property to them in India. There is no substance, therefore, in this point either. These were the only points urged before us.