Case: Dhanki Mahajan &amp; Others Vs. Rana Chandubha Wakhatsing (dead) by his legal representatives &amp; Others

2. The respondents are Bhayats and Girasdars of Dhanki village in Lakhtar Taluka of the Saurashtra region of the Gujarat State. On December 19, 1940, the respondents executed a joint usufructuary mortgage in favour of Thakker Jethalal Dosabha (the third appellant herein) and another for a sum of Rupees 17,725. The liability incurred under the mortgage was a joint liability and under the terms of the deed each of the mortgagers was liable for the entire debt due under the mortgage. Till January 25, 1950, Dhanki village was a part of the former State of Bombay. As from January 26, 1950, that village became a part of the State of Saurashtra in view of the provisions in the Provinces and States (Absorption of Enclaves) Order, 1950. Prior to that date, the Bombay Agricultural Debtors Relief Act, 1939, (Bombay Act No. XXVIII of 1939) hereinafter referred to as the Bombay Act, was in force in Dhanki village. As long back as 1945, respondent No. 2 had filed an application before the Civil Judge (Junior Division) Viramgam both on his behalf as well as on behalf of his minor cousin, the third respondent, for adjustment of their debts. At the same time, respondent No. 1 had also filed an application under the Bombay Act for adjustment of his debts. These applications were consolidated for the purpose of trial. Ultimately they were dismissed as the debts due from each of those persons were held to exceed Rs. 15,000 and that being so they could not be considered as "debtors" under the Bombay Act. In those proceedings it was further held that the debt due from the respondents under the mortgage is a joint debt and each one of them was liable for the entire debt. No appeal was preferred against that decision. At the time of the merger of Dhanki village in Saurashtra, in that State there was no statute similar to the Bombay Act. The Saurashtra Agricultural Debtors Relief Act (Act No. XXIII of 1954) came to be enacted in 1954. This Act will hereinafter be referred to as "the Act". By and large the provisions of the Act are similar to those of the Bombay Act. In 1955 the respondents again made applications before the Debt Adjustment Board for sealing down their debts under the provisions of the Act. The appellants resisted those applications principally on two grounds,The respondents cannot be considered as "debtors" under the Act as the total debts due from each of them exceeded Rs. 25,000, the limit fixed under the Act, and(2) their applications are barred by the principles of res judicata in view of the decision given earlier under the Bombaythe Board as well as the appellate court upheld the contentions of the appellants that the respondents were not "debtors" as defined in the Act and that their present applications were barred by the principles of res judicata, in view of the earlier decision rendered under the Bombay Act. They held that the debt due under the mortgage is a joint debt and each of the mortgagors is liable for the entire debt. They repelled the plea of the respondents that the debt in question is liable to be split up under the provisions of the Act. But the High Court reversed the above findings. It held that in computing the total debts due from the respondents each one of the mortgagors should be held to be liable only for one-third of the mortgage debt and in that event the total debt due from each of them does not exceed Rs. 25,000. It may be noted that under the Act, a person whose debts exceeded Rs. 25,000 cannot be considered as a "debtor", it is admitted that if each of the respondents is held liable for the entire mortgage debt, the debts due from each of them would exceed Rs. 25,000 and in that event, they are not entitled to any relief under the Act. But it is equally true that if each one of them is liable only for one-third of the mortgage debt, then the total debts due from each of them do not exceed Rs. 25,000 and in that event their debts are liable to be scaled down and adjusted under the provisions of the Act. Therefore, the main question for decision is whether each one of the respondents can be held liable for the entire debt due under the mortgage. If the answer is in the affirmative, as opined by the Board as well as the appellate court, the then decision of the High Court is incorrect. But on the other hand, if we agree with the High Court that each of the respondents is only liable for one-third of the mortgage debt then the respondents applications should have been entertained by the Board and dealt with according to law. As, in our opinion, the decision of the Board and of the appellate court that each of the respondents is liable for the entire mortgage debt is correct in law, it is not necessary for us to consider the other question whether the applications from which this appeal arises are barred by the principles of res judicata. For the same reason we are also not going into the question whether on the facts of this case it was competent for the High Court to reverse the decision of the appellate Court by having recourse to its powers under Section 115 of theCode of Civil Procedure.

Reasoning: That being so unless we hold that for the purpose of the Act joint debts are liable to be split up, complications would arise. He gave an illustration of a debt owned by three joint debtors, each of whom is a "debtor" within the meaning of the Act. According to him, in view of the provisions of the Act, if the total debt due from them is Rs. 30,000, the same may be scaled down in respect of one debtor to Rupees 18,000, another to Rs. 17,000 and the third to Rs.16,000. As the awards against the several debtors are independent awards, each of those awards can be executed against the concerned debtors: in that event the creditor will be entitled to realise, instead of Rupees 30,000 due to him, Rs. 51,000. We do not think that there is any basis for this apprehension. It is not necessary for our present purpose to find out the true scope of Section 7 or what would be the, effect of scaling down a joint debt on the application of one of the debtors. One possibility is that the debt as a whole may be scaled down and the creditor not entitled to collect more than the scaled down debt from any of the debtors. Another possibility is that though the creditor cannot collect more than what is due to him jointly from all debtors, his right to proceed against an individual debtor and his property has to be determined on the basis of the provisions of the Act. We do not think that there is any need to go into these complications in the present case. It is likely that while applying the provisions of the Act along with the provisions of the Transfer of Property Act or the Contract Act, in certain cases, some difficulties may arise. All these difficulties will be solved by reasonably interpreting the relevant provisions of the Act.For our present purposes, all that we have to see is whether on the basis of the provisions of the Act, there is any justification for departing from the ordinary rule that in the case of a joint debt, each one of the debtors is liable for the entire debt. We see no such justification.It was next urged by Shri Baxi, learned counsel for the respondents, that Section 7 of the Act permits one of the joint debtors to apply for adjustment of his debts, and if he so does, the Board is bound to scale down his debts so far as he is concerned.That being so unless we hold that for the purpose of the Act joint debts are liable to be split up, complications would arise. He gave an illustration of a debt owned by three joint debtors, each of whom is a "debtor" within the meaning of the Act. According to him, in view of the provisions of the Act, if the total debt due from them is Rs. 30,000, the same may be scaled down in respect of one debtor to Rupees 18,000, another to Rs. 17,000 and the third to Rs.16,000. As the awards against the several debtors are independent awards, each of those awards can be executed against the concerned debtors: in that event the creditor will be entitled to realise, instead of Rupees 30,000 due to him, Rs. 51,000. We do not think that there is any basis for this apprehension. It is not necessary for our present purpose to find out the true scope of Section 7 or what would be the, effect of scaling down a joint debt on the application of one of the debtors. One possibility is that the debt as a whole may be scaled down and the creditor not entitled to collect more than the scaled down debt from any of the debtors. Another possibility is that though the creditor cannot collect more than what is due to him jointly from all debtors, his right to proceed against an individual debtor and his property has to be determined on the basis of the provisions of the Act. We do not think that there is any need to go into these complications in the present case. It is likely that while applying the provisions of the Act along with the provisions of the Transfer of Property Act or the Contract Act, in certain cases, some difficulties may arise. All these difficulties will be solved by reasonably interpreting the relevant provisions of the Act.For our present purposes, all that we have to see is whether on the basis of the provisions of the Act, there is any justification for departing from the ordinary rule that in the case of a joint debt, each one of the debtors is liable for the entire debt. We see no such justification.