LexNAUNIHAL KISHAN AND OTHERS versus R. S. CH. PRATAP SINGH AND ANOTHER
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2S.C.R. SUPREME COURT REPORTS 293 NAUNIHAL KISHAN AND OTHERS v. R. S. CH. PRAT AP SINGH AND ANOTHER (S. K. DAs, A. K. SARKAR, M. HrnAYATULLAH and N. RAJAGOPALA AYYANGAR JJ.) - Displaced Person-Debt-Adjustment-Usufructuary mort- gage-Whether mortgagor a debtor-Scaling down of mortgage debt-Whether only in a suit for redemption of mortgage- Tribunal'a jurisdiction-"Value of the lanils"-How to be com- puted-Whether in terms of market value alone-Whether in term• of comparable Standard acres-Displaced Persons (Debt" Adjustments) Act, 1951 (LXX of 1951) ss. 2 (6), 2 (9), 4, 5, 16, 29. Both the appellants as well as the respondents originally belonged to that part of Punjab which is now in Pakistan. In 1933 respondent No. 2 effected an usufructuary mortgage of a certain land to the father of appellants Nos. 1 to 3 and to the 4th appellant's father to secure a sum of Rs. 39,000/-. Apart from the provisions for the payment of interest the mortgage deed also fixed a term of 10 years beyond which alone the mortgagee could sue for the recovery of the mortgage money. Four years after the execution of the mortgage deed the mortga- gor sold a major portion of the property to one Guranditta Ram. Out of the consideration for this sale a sum of Rs. 26,500/- was < left with the transferee to be paid in discharge of the mortgage. This sum was not paid to the mortgagee and thus the entire mortgage amount remained outstanding. On the partition of the country in l 94 7 both the mortgagor as well as the mort- gagee moved into India and they were "displaced persons''. The mortgagor was as disp]aced person allotted agricultural land in India on the basis of his original holding in Pakistan. The appellants as the mortgagees entitled to possession of the lands were put in possession of this land. The respon'dents applied under s. 5 of the Displaced Persons (Debts Adjustment) Act, 1951, to get the mortgage - debts adjusted according to the provisions of s. 16 of the Act. Certain objections raised by the appellants to this application were overruled and the mortgage debt was scaled down. An appeal was preferred to the Punjab High Court and the Single Judge who heard the appral dismissed it. A Letters Patent Appeal preferred by the ap!Jellants was dismissed in limine 1963 March JJ 1963 - Naunfril Kishan v. R. S. Ch. Pratap Sin:h 294 StTPREME COURT REPORTS [1964] VOL. and a certificate of fitness was refused. The present appeal is by way of special leave granted by this Court. The first contention raised before this Court was that the first respondent was not a "debtor" within the meaning of s. 2 (6) of the Act because there was no contractual relation· ship of debtor and creditor between him and the displaced creditor i. e. the appellants. The next contention was that the liability under a mortgage debt could be scaled down and adjusted unck!r the Act only in a suit for redemption filed by the creditor and that it was incompetent for a debtor to invoke the jurisdiction of the tribunal to effect the scaling down by an application under s. 5. Finally it was argued that under 1he proviso to s. 16 (4) of the Act the reduction of the debt has to be in the •ame 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 and "value" according to the appellant meant market value. Held, that having regard to the terms of s. 16 ( 4) the fact that the security was by way of usufructuary mortgage and the debtor had the right to redeem were sufficient to enable the beneficient provisions of the section being attracted. Apart even from the terms of s. 16 (4) the liability under the mort- gage in favour of the appellant would fall within the definition of s. 2 (6). Even a usufructuary mortgage, whatever its nature is within the definition of 'debt' under s. 16 an<l it is wholly immaterial whether or not tlte creditor is entitled to proceed personally against the debtor and recover the amount of the mortgage. Lachhman Singh v. Natha Singh and Ors., I. L. R. 1941 Lah. 71, Manubhai Mahijibhai Patel v. Trikamlal Laxmidas, I. L. R. 19.58 Born. 1429, Lahori Lal v. Kasturi Lal (1956) 58 P. L. R. 331, Rajkumari Kaushalya Devi v. Bawa Pritam Singh, [!960] 3 S. C.R. 570. Section 5 (I) of the Act enables a debtor to make an application to the tribunal for the adjustment of his debts. The amount due on or secured by
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