# The State of Rajasthan v. Nath Mal and Mitha Mal

- **Citation:** [1954] 1 S.C.R. 988
- **Court:** Supreme Court of India
- **Decided:** 1954
- **Case number:** Civil Appeals Nos. 130 and 131 of 1951
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-rajasthan-v-nath-mal-and-mitha-mal-290
- **Pages:** 9

## Headnote

1954
The State of
Rajasthan
v.
Nath Mal and
Mitha Mal.
1954
March 12.
988
SUPREME COURT REPORTS
[1954]
rightly
held
article 31(2).
that
the
clause
offended
against
For the foregoing reasons
portion
of clause 25 is void
with costs.
we
hold
that the last
and dismiss the appeal
Appeal dismissed.
Agent for the appellant and for the intervener:
R. H. D!tebar.
SRIMA TI ORAMBA SUND ARI DASI
ti.
SRI SRI ISWAR GOPAL JIEU.
[MuKHERJEA,
VrvIAN
BosE
and
VENKATARAMA AYYAR JJ.)
Bengal Money-Lenders Act, 1940 (Bengal Act X of 1940), s. 36
-Scope of-Court whether competent to make an enquiry that
decree-holder on record is benamidar for another person.
Held,
that
in a
proceeding under s. 36 of the Bengal
Money-Lenders Act, 1940, it is not competent to the court to go
behind the decree and embark on an enquiry as to whether the
decree-holders on record were in fact benamidars
for another
person.
Scope oi s. 36 of the Act discussed.
Renual v. Manmatha (72 I.A. 156) and Bank of Commel'C6
Ltd. v. Amulya Krishna Basu Roy Chowdhury ( [ 1944 ]F.C.R. 126)
referred to.
C1v1L
APPELLATE
JuR1smcTION :
Civil
Appeals
Nos. 130 and 131 of 1951.
Appeals from the Judgment and Decrees, dated the
12th August, 1948, of the High Court of Judicature at
Calcutta in Appeals from Original Decrees Nos. 214 of
1942 and 231 of 1943 arising from the Decrees, dated
the 16th June, 1942, of the Court of the Subordinate
Judge, Burdwan, in Money
Suit No. 261 of 1932/
Miscellaneous
Case No. 132 of
1941 and Money Suit
No. 262 of 1932/Miscellaneous Case No. 131 of 1941.
N. C. Chatterjee (A. K. Dutt and Sukumar Ghose,
with him) for the appellant.
Manmo!tan Mukherjee and P. K. Chatterjee for respondent No. I.
S.C.R·
SUPREME COURT REPORTS
989
1954. March
12.
The Judgment of the Court was
delivered by
MuKHERJEA J.-These two analogous appeals, which
are between the same parties and involve the same
points in dispute, are directed against a common
judgment of a Division
Bench of the Calcutta High
Court dated the 12th of August, 1948,
by which the
learned Judges affirmed, in appeal, the decision of the
Subordinate Judge
of Burdwan passed in two analogous proceedings under section 36 of the Bengal MoneyLenders Act. The facts material for our present purpose lie within a narrow compass and may be stated
as
follows : The principal respondents are certain
idols, represented . by their managing Shebait
Ram
Govinda Roy.
The idols are the family deities of the
Roys of Bonpash in the district of Burdwan, and the
number
of Shebaits
being
very large,
there is a
recognised
usage in this family
that
the seniormost
member amongst the descendants of the founder· acts
as the managing Shebait
and it is he who manages the
endowed properties
and looks after the due performance of the worship
of
the idols.
It is not disputed
by the parties that it is within the competence of the
managing Shebait
to borrow money to meet the necessities of the idols and to execute such documents as
may
be necessary
for
that
purpose.
Admittedly
Adwaita Charan Roy was the managing Shebait of the
deities from 1926 to 1930 and as Shebait, he executed
a Hatchita in
favour of one Nanitosh Chakraborty
some
time in April, 1928, on the basis of which he
received advances of money from time to time from
the latter.
The last entry in the Hatchita was made
in March, 1929, and the total amount borrowed up to
that date came
up to Rs. 3,801. Adwaita died
in
March, 1930, and after his death, Satish Chandra Roy
became the managing Shebait and continued to act as
such till his death in 1940. There was an adjustment
of accounts between Nanitosh, the creditor, in whose
favour the Hatchita was executed, and Satish Chandra,
the managing Shebait some time in October, 1931, and
a sum of Rs. 5,068,
having been found due to the
1954
Sn'mati Oramba
Sundari Dasi
v.
Sri Sri lswar
Gopal Jieu.
Mukhedea J.
1954
Srimati Oramba
Sundari Dasi
v.
Sri Sri Iswar
Gopal Jieu.
Mukherjea J.
990
SUPREME COURT REPORTS
[1954]
creditor, Satish Chandra gave him a renewed

## Text

1954
The State of
Rajasthan
v.
Nath Mal and
Mitha Mal.
1954
March 12.
988
SUPREME COURT REPORTS
[1954]
rightly
held
article 31(2).
that
the
clause
offended
against
For the foregoing reasons
portion
of clause 25 is void
with costs.
we
hold
that the last
and dismiss the appeal
Appeal dismissed.
Agent for the appellant and for the intervener:
R. H. D!tebar.
SRIMA TI ORAMBA SUND ARI DASI
ti.
SRI SRI ISWAR GOPAL JIEU.
[MuKHERJEA,
VrvIAN
BosE
and
VENKATARAMA AYYAR JJ.)
Bengal Money-Lenders Act, 1940 (Bengal Act X of 1940), s. 36
-Scope of-Court whether competent to make an enquiry that
decree-holder on record is benamidar for another person.
Held,
that
in a
proceeding under s. 36 of the Bengal
Money-Lenders Act, 1940, it is not competent to the court to go
behind the decree and embark on an enquiry as to whether the
decree-holders on record were in fact benamidars
for another
person.
Scope oi s. 36 of the Act discussed.
Renual v. Manmatha (72 I.A. 156) and Bank of Commel'C6
Ltd. v. Amulya Krishna Basu Roy Chowdhury ( [ 1944 ]F.C.R. 126)
referred to.
C1v1L
APPELLATE
JuR1smcTION :
Civil
Appeals
Nos. 130 and 131 of 1951.
Appeals from the Judgment and Decrees, dated the
12th August, 1948, of the High Court of Judicature at
Calcutta in Appeals from Original Decrees Nos. 214 of
1942 and 231 of 1943 arising from the Decrees, dated
the 16th June, 1942, of the Court of the Subordinate
Judge, Burdwan, in Money
Suit No. 261 of 1932/
Miscellaneous
Case No. 132 of
1941 and Money Suit
No. 262 of 1932/Miscellaneous Case No. 131 of 1941.
N. C. Chatterjee (A. K. Dutt and Sukumar Ghose,
with him) for the appellant.
Manmo!tan Mukherjee and P. K. Chatterjee for respondent No. I.
S.C.R·
SUPREME COURT REPORTS
989
1954. March
12.
The Judgment of the Court was
delivered by
MuKHERJEA J.-These two analogous appeals, which
are between the same parties and involve the same
points in dispute, are directed against a common
judgment of a Division
Bench of the Calcutta High
Court dated the 12th of August, 1948,
by which the
learned Judges affirmed, in appeal, the decision of the
Subordinate Judge
of Burdwan passed in two analogous proceedings under section 36 of the Bengal MoneyLenders Act. The facts material for our present purpose lie within a narrow compass and may be stated
as
follows : The principal respondents are certain
idols, represented . by their managing Shebait
Ram
Govinda Roy.
The idols are the family deities of the
Roys of Bonpash in the district of Burdwan, and the
number
of Shebaits
being
very large,
there is a
recognised
usage in this family
that
the seniormost
member amongst the descendants of the founder· acts
as the managing Shebait
and it is he who manages the
endowed properties
and looks after the due performance of the worship
of
the idols.
It is not disputed
by the parties that it is within the competence of the
managing Shebait
to borrow money to meet the necessities of the idols and to execute such documents as
may
be necessary
for
that
purpose.
Admittedly
Adwaita Charan Roy was the managing Shebait of the
deities from 1926 to 1930 and as Shebait, he executed
a Hatchita in
favour of one Nanitosh Chakraborty
some
time in April, 1928, on the basis of which he
received advances of money from time to time from
the latter.
The last entry in the Hatchita was made
in March, 1929, and the total amount borrowed up to
that date came
up to Rs. 3,801. Adwaita died
in
March, 1930, and after his death, Satish Chandra Roy
became the managing Shebait and continued to act as
such till his death in 1940. There was an adjustment
of accounts between Nanitosh, the creditor, in whose
favour the Hatchita was executed, and Satish Chandra,
the managing Shebait some time in October, 1931, and
a sum of Rs. 5,068,
having been found due to the
1954
Sn'mati Oramba
Sundari Dasi
v.
Sri Sri lswar
Gopal Jieu.
Mukhedea J.
1954
Srimati Oramba
Sundari Dasi
v.
Sri Sri Iswar
Gopal Jieu.
Mukherjea J.
990
SUPREME COURT REPORTS
[1954]
creditor, Satish Chandra gave him a renewed Hatchita
for that amount. It
appears that while Adwaita was
still the managing Shebait, a suit was
instituted
by
some of his co-Shebaits to remove
him from his offce
and pending the hearing of the suit, Ramjanaki Rnv,
another co-Shebait, was appointed a Receiver of the
debutter property by the court.
With the permission
of
the
court, Ramjanaki
harrowed from the same
Nanitosh Chakraborty three sums of money on three
different promissory notes executed respectively on the
27th
Septemher, 1929,
1st
October,
1929, and
14th
January,
1930.
The suit was eventually dismissed for
non-prmecution
after
A,lwaita's
death. Nanitosh d].-d
in 1931, and i,-, 1932, his two sons Aditya and Dhirendra,
who
figure
as
respondents
14
and 15
in these
appeals,
instituted
two money suits
against Satish
Chandra, t)1e managing Shebait,
in the Court of the
Subordinate Judge, Burdwan, being Money Suits Nos.
261 and 262 of 1932. for recovery of the moneys due
in respect of the Hatchita and
the
promissory
notes
mentioned aforesaid.
Both the suits were decreed ua
the basis
of a compromise
elated the 23rd July, 1933,
and two consent decrees were passed, one for a sum
of Rs. 5,800, and the other for Rs. 2,200,
both papble
in sixteen vearly instalments with a further stipulation
that in default of payment of any one of the instalments,
the whole or balance of the clecretal
amount
would become clue and payable in each.
The instalments not having been paid in either of the rnses
both
the decrees were put into execution.
In Execution
Cases Nos.
76 and 77 of 1936, arising out of
Money Suits Nos. 261
and 262 of
1932, the properties
mentioned in Schedule Ka in each case were put up to
sale and they were purchased ostensibly
by
the two
clecrceholclers Aclitya and Dhircn.
Three years bter,
Execution Cases Nos. 17 and 18 of 1939 were started
again in
connection
with
the said decrees and
this
time the properties specified
in
Schedule Kha were
attached
and
put
up to sale
and they were also
purchased by the Chakraborty clecreeholclers. Finally
in Execution Cases Nos. 163 of 1939 and 5 of 1940.
the properties described in Schedule
Ga were sold and
S.C.R.
SUPREME COURT REPORTS
991
thev were knocked down to Srimati Oramba Sundari
Da;i, who figures as the appellant in the appeals before
us and who. it may be noted, is the wife of Aghore
Nath Roy,
a son
of
Adwaita, the former managing
Shebait
of
the debutter estate.
Subsequently, the
deqeeholders, who purchased Ka and Kha Schedule
properties sold them by a registered Kabala to the said
Oramba Sundari Dasi on the 26th of July, 1940.
The
result, therefore, was that the properties described in
the three Schedules came to vest in Oramba Sundari,
the wife of Aghore Nath Roy.
On the 28th
August,
1941, the deities represented
by
some of the Shebaits
filed two applications under section 36 (6) (a) (ii) of
the Bengal Money-Lenders Act, praying for the reopening of the two compromise decrees mentioned aforesaid
and
the passing
of
new instalment decrees iri
accordance with the provisions
of the Act. There were
· prayers also for restoration to the deities
of all the
properties mentioned in Schedules, Ka, Kha and Ga
which were purchased in execution of tl1e decrees. The
principal opposite
parties
to these proceedings were
the Chakraborty decreeholders, Oramba Sundari, the
ostensible
purchaser,
a.nd
Aghore
Nath
Roy, her
husband.
The allegations in
the applications, in substance,
were
that
the Chakrabortys were mere benamidars
for
Aghore Nath
Roy, who was
the real lender
and the real decreeholder in both these suits.
It was
alleged that Aghore Nath Roy purchased these properties in the benami of the decreeholders in two out
of the three execution proceedings and in the benami
of his wife Oramba Sundari in the third. The subsequent
Kabala executed
by
the Chakrabortys in
favour
of Oramba Sundari was also asserted to be a fictitious
conveyance made in favour of Aghore Nath Roy in
the name of his wife.
In these circumstances, the
iudgment-debtors prayed
that they were
entitled to
have the two compromise decrees reopened and on the
passing of new instalment decrees
to have the properties, which were in possession of the real decreeholder.
restored to the deities in terms of section 36(2) ( c) of
the Bengal Money-· Lenders Act. The trial judge decided
1954
Srimati Oramba
Sundari Dasi
v.
Sri Sri Iswar
Gopal Jieu.
Mukherjea J.
1954
Srimati Oramba
Sundari Dasi
v.
Sri Sri lswar
Gopal Jieu.
Mukherjea J.
992
SUPREME COURT REPORTS
[19541
in favour of the judgment-debtors and granted
their
prayers in both the applications.
Orders were made
for reopening of
the decrees
and making of fresh
decrees
in their places in accordance with the provisions
of
the Bengal
Money-Lenders Act. Direction
was also given for restoration of the properties mentione,d in Schedules Ka, Kha and Ga to the deities
under the provision of section 36(2) (c). Against this
decision, Oramba Sundari took two appeals to the High
Court of Calcutta and the learned Judges, who heard
the
appeals, affirmed
the decision of the court below
and dismissed both the appeals.
Oramba Sundari has
now come up in appeal to this court on the strength of
a certificate
given
by
the High Court under sections
109 (a) and llO of the Civil Procedure Code.
Mr.
Chatterjee, who appeared
in support of the
appeals, has not
challenged before us the findings of
fact concurrently arrived at by the courts below, viz.,
that
the
appellant
Oramba Sundari was
a mere
benamidar
for
her husband Aghore in respect of the
purchase of Ga Schedule properties in court sale, and
also that the Kobala executed
by the Chakrabortys in
her favour on July 26, 1940, was a fictitious transaction.
The point, which he has pressed for our consideration,
is that in a proceeding under section 36 of the Bengal
Money-Lenders Act, it is not open to the court to go
behind the decree and launch an enquiry as to whether
the decreeholders on record were in fact benamidars
for another person.
In other words, the contention
is that, even if Aghore was proved to have advanced
the money upon
which the Chakrabortys obtained the
decrees, in reopening the decrees
and in working out
the rights of the parties in accordance with the provisions of
the Bengal
Money-Lenders Act, the court
could treat
the
Chakrabortys alone as the decreeholders.
For a proper determination of this point, it
is necessary
to examine the scope of section 36 of the
Bengal Money-Lenders Act and the reliefs which the
court is competent to grant in terms of that section.
'
Section 36 of the Bengal Money-Lenders Act sets
out
the
various powers which the court can exercise,
S.C.R ..
SUPREME COURT REPORTS
993
if it has reason to believe that the exercise of one or
more of the powers will give relief to the borrower as
contemplated · by
the Act; and
one of the powers,
which is mentioned in clause (a) of sub-section (1) of
the section is to reopen any transaction and take an
account between the parties.
The drafting of section 36
is indeed obscure and somewhat clumsy, but it is dear,
as the Privy Council(') has pointed out, that the
power of reopening a transaction, as contemplated bv
the
section,
extends
to reopening of decrees as well.
Sub-section
(2)
of section 36 contains detailed provisions
as to what the court may or may not do when a
decree is reopened.
It cannot be disputed
that
the
court reopens a decree under
section 36(2) only for the
purpose and so far as it is necessary to give relief to
the borrower
in
the manner provided for in the Act,
namely, to release him from all liability for interest in
excess of the limits prescribed by section 30 of the
Act.
A new decree is passed only for the purpose of
substituting the method
of accounting sanctioned by
the
Act for the calculations upon which the original
decree was passed and to give an opportunity to
the
judgment-debtor to pay the decretal dues thus ascertained by instalments.
But save and except for these,
the old decree as well as the adjudications made thereunder are not wiped out and the parties are not relegated to
their rights
and liabilities under the original
cause of action('). How the rights of the parties are to
be ad justed and worked out when a decree has been
reopened has been dealt· with exhaustively in the several
dauses of section 36 (2) of the Bengal Money-Lenders
Act, and an examination of these clauses makes it clear
to our minds that an enquiry as to whether the decreeholder was in fact a benamidar
for another person
in
respect
of the decree, does not come within the
purview of these provisions. Clause (a) of section 36(2)
empowers
th~ court to pass a new decree in accordance
with the provisions of the Act.
Obviously,
this new
decree is to be passed in favour of the original decreeholder and only the calculations
upon which the old
(1) Vide Rettula v. Manmat!1a, 72, I. A. 156.
(2) Vide Bank of Commerce
Lid. v.
Amulya
KriJhna Basu Rqy Chowdhury F. C. R. 126.
1954
Srimati Oramba
Sundari Dasi
v.
Sri Sri Iswar
Gopal Jieu.
-"
MukherJea J.
1954
Srimati Oramba
Sundri Dasi
v.
Sri Sri Iswar
Gopol Jieu.
Mukhei:iea J.
994
SUPREME COURT REPORTS
-
[1954]
decree was based
would be changed by
substituting
the statutory method of accounting in place of what
rested
upon
the
contract
between.
the
parties.
Clauses (b) and (c) contemplate cases where properties
have been sold in execution of the original decree.
If
the purchaser is the decreeholder himself and he is in
possession of the property when the decree is reopened,
it is incumbent upon the court to order restoration of
these
properties
to
the
judgment-debtor
under
clause (c).
If,
on
the other hand, the properties had
been acquired by strangers either by purchase at the
execution
sale
or
from the decreeholder purchaser,
their interests would be protected if they have acquired
these rights bona fide as contemplated by clause (b ).
Under clause (cl), the court has to order the payment
of the decreetal amount in such instalments as it thinks
proper, and clause ( e)
further imposes a duty on the
court to give a direction in such cases that if there is
default in the payment of any one of the instalments,
the properties restored
to the judgment-debtor under
clause ( c) would be put back into the possession of the
decreeholder.
It
is
quite
true
that the object of
restoring possession of the properties sold in execution
of the decree to the judgment-debtor is
to enable the
latter
to pay
off the decretal dues,
but it is to be
remembered that the sale itself is not annulled, and in
case of default in payment of any of the instalments,
the
properties are
returned
to the
decreeholder
purchaser.
We agree
that if the purchaser is a mere
benamidar
for
the
decreeh0lder,
clause (b ), subsection (2) of the section would not afford protection
to him in any way. He could not be regarded as
a
person other than
the
decreeholder
acquiring
rights
bona fide
as contemplated
by
that
clause. For the
purpose of giving effect to clauses (b) and ( c), therefore, the court has not only the right but is under a
duty to make an enquiry as to whether the ostensible
purchaser at the execution sale,
or the person
who
purports to have
acquired an interest therein under a
subsequent transfer
from
the decreeholder
purchaser,
has bona fide acquired such rights within the meaning
of clause (b).
But we do not agree with the learned
s:c.R.
SUPREME COURT REPORTS
995
Judges of the High Court that in making a new decree
under clause (a)
of section 36(2) and giving the
judgment-debtor consequential relief under
clause ( c)
of . the sub-section, the court can at all enter into the
question as to whether the decreeholder on record is
himself a benamidar for another person in respect of
the decree.
Such
enquiry, it seems to us, is altogether
outside
the purview
of
the different clauses of section 36(2) of
the Bengal Money-Lenders Act. These
provisions do not recognise any other decreeholder than
the one in whose favour the original decree was passed.
It is between him and the judgment-debtor that the
rights ate to be adjusted in accordance with the provisions of the Act; to him would the instalments have to
be paid under the new decree, and he alone would be
compelled to restore the properties which he had purchased in execution prdceedi.ngs.
None but the decreeholder on record can give a valid discharge or record
satisfaction of the decree.
This being the position, it
is altogether immaterial, in our opinion, that it was
Aghore,
the
husband
of the appellant, who really
advanced the money upon which the decrees were
obtained.
We must treat the Chakrabortys and the
Chakrabortys alone as the decreeholders
and see
to
what extent the provisions of the Act could be applied
against
them in· the circumstances of
the present case.
So far as the properties described in Schedules Ka and
Kha ate concerned, it is not disputed that they were
purchased by the decreeholders themselves.
No price
was actually paid
by the decreeholders, but the sale
proceeds were set ·off against the decretal dues. The
decreeholders, therefore, must be
deemed
to be the
purchasers of these properties within the meaning of
clause ( c) of section 36(2);
and as the subsequent conveyance
of
these properties
in favour
of Oramba
Sundati, the appellant, has been
held
by both the
courts below . to be a fictitious transaction,
we must
hold
that 0Iamba Sundati did not bona fide acquire
my right which could be protected under clause (b) of
section 36a).
With regatd to these properties, therefore,
the order for restoration
of possession made by
both the courts below should stand. As regards
Ga:
5-97 S. C. India/59
•
1954
Srimati Oramba
Sundari Dasi
v.
Sri Sri lswar
Gopal Jitu.
Mukherjea J~
1954
Srimati OramlitJ
Sundari Dasi
v.
Sri Sri Iswar
Gopal .7itu.
Mukhtlj1a ].
1954
March 15.
996
SUPREME COURT REPORTS
[1954]
Schedule
properties,
however,
Oramba Sundari was
the purchaser
at
the execution sale and whether or
not the
money
for such purchase
was paid by her
husband becomes
immaterial.
This was not the property
purchased by the decreeholders and there
is no
proof of the decreeholders being
in possession of the
same either by themselves or through Oramba Sundari.
In these circumstances, clause (c) of section 36(2) cannot be attracted in favour of judgment-debtors
so far
as this property is concerned and the possession
of it
must
remain
with the appellant. We, therefore, allow
the appeal
in part and set aside the order for restoration of possession made by the courts below in respect
to the Ga Schedule property.
The rest of the decision
of the High Court will stand.
We make no order as
to costs of these appeals.
A pp(a/ partly allo1ud.
THE STATE OF RAJASTHAN
v.
RAO MANOHAR SINGHJL
[MEHR CHAND MAHAJAN C. J., MuKHJ'.RJEA, S. R. DAs,
VIVIAN BosE and GHULAM HASAN JJ.]
Constitution
of India, art.
14-Section 8-A of Rajasthan
Ordinance XXV/l of 1948 as amended-Whether ultra vim the
Const£tutiQn.
Held, that s. 8-A inserted in Rajasthan Ordinance XXVII of
1948 by s. 4 of Rajasthan Ordinance X of 1949 and as amended by
s. 3 of Rajasthan Ordinance XV of 1949 is void under art. 14 of
the Constitution.
Frank f. Bowman v. Edward A. Lewis (101 U.S. 22; 25 Law.
Ed. 989), Ramjilal v. Income Tax Officer, Mohindargarh ([1951]
S.C.R. 127), The State of Punjab v. Ajaib Singh ([1953] S.C.R.
254) and Thakur Madan Singh v. Collector of Sikar (Rajasthan
Law Weekly, 1954, p. 1), referred to.
CIVIL
APPELLATE
JuRismcnoN :
Civil
Appeal
No. 143 of 1952.
Appeal under article 132(1)
of the Constitution
of
India
from the Judgment and Order, dated
the