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PETITIONER: RAM LAL & ORS.

       Vs.

RESPONDENT: PIARE LAL GOBINDRAM & ORS.

DATE OF JUDGMENT03/05/1973

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. PALEKAR, D.G.

CITATION:  1973 AIR 2124            1974 SCR  (1) 198  1973 SCC  (2) 192

ACT: Code of Civil Procedure, 1908-Clause (ccc) to proviso to  S. 60(1)-As  added  by punjab Relief of Indebtedness Act  7  of 1934  as  amended by Punjab Acts 12 of 1940 and 6  of  1942- Exemption  from  attachment-Scope of-Appellants  using  back portion  of shop as residence-Portion of  residential  house occupied  by  appellants for purposes of the shop  does  not cease to be part of the residential house.

HEADNOTE: The  appellants. two brothers and their sons, constituted  a firm.   They  were  declared  insolvent  and  the   Official Receiver  took possession of all their properties  including the building in dispute.  The appellants filed an  objection petition  under Sec. 60 of the Code of Civil Procedure  read with  Sec. 4 of the Provincial Insolvency Act in respect  of taking  possession  of the building in dispute  basing  this upon cause (ccc) of the, Proviso, subsection (1).  The Trial Court held that the entire building consists of two distinct units,  the one being distinct business premises as a  shop, while the other structure, on the back thereof,  exclusively used  a  residential premises, and,  therefore,  upheld  the objection  petition  of  the appellants in  respect  of  the residential   portion  and   the upper  storey  thereon  and dismissed  it  in respect of the rest of the  building    on appeal  the  Dist.  Judge and the Single Judge of  the  High Court held in favour of the appellants. On  a further appeal under the Letters Patent. the  Division Bench  purporting to follow the Full Bench Decision of  that Court in Ude Bhan and Ors. v. Kapoor Chand and Ors.  allowed the appeal and set aside the judgments of the learned single Judge and restored the order of the Insolvency Judge. On appeal by certificate, allowing the appeal, HELD : (1) If a portion of the residential house is occupied by  the Judgment debtor himself for the. purpose of  a  shop that  portion does not cease to be part of  the  residential house.   In the circumstances and social conditions in  this country it would be difficult to justify the conclusion that where  a part of a residential house is used  in  connection with  the business or profession of the owner of that  house that  portion  ceases to be part of the  residential  house. The Punjab High Court has taken the same view at least  from

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the  year  1951.  The contrary view taken  by  the  impugned judgment  does not flow form the full bench judgment or  the language of the Section [201D] Ude  Bhan  & Ors. v. Kapoor Chand & Ors.,  I.L.R.  1966  (2) Punjab  400,  Agha Jafar Ali Khan v. Radha  Kishore,  A.I.R. 1951  Punjab 433, distinguished. Firm Ganga Ram v. Firm  Jia Ram, A.I.R. 1957 Punjab 293 followed. Punjab  Mercantile Bank Limited (in  liquidation)  Jullundur City v. Messers General Typewriter Co. Jullundur City,  1962 P.L.R. 1081, referred to. (2)  There is no doubt that the building in question was the main residential house of the appellants and it was occupied by  them.  The facts of the’ case bring it  squarely  within the  scope  of  the  section  and  the  whole  building  is, therefore, exempt from attachment. [2O3A]

JUDGMENT: CIVIL  APPELLATE JURISDICTION:     Civil Appeal No. 1248  of 1967. Appeal  by  certificate from the judgment  and  order  dated April  7,  1966 of the Punjab High Court  at  Chandigarh  in Letters Patent No. 296 of. 1963. S.   K.  Mehta,  K. R. Jagaraia and M. Qamaruddin,  for  the appellants. H.   K.   Puri,  R.  L.  Roshan  and  S.  K.  Dhingra,   for respondents Nos. 3-5, 9 & 10. 199 The Judgment of the Court was delivered by ALAGIRISWAMI,  J. This is an appeal by  certificate  against the  judgment of a Division Bench of the Punjab  High  Court ’in a Letters Patent Appeal. The  question for decision in this appeal depends  upon  the interpretation of clause (ccc) added to the proviso to  sub- s.  (1)  of s. 60 of the Code of Civil Procedure  by  Punjab Relief  of Indebtedness Act 7 of 1934 as amended  by  Punjab Acts 12 of 1940 and 6 of 1942 exempting from attachment-               "One   main   residential-house   and    other               buildings  attached to it (with  the  material               and the sites thereof and the land immediately               appurtenant  thereto and necessary  for  their               enjoyment)  belonging  to  a  judgment  debtor               other  than an agriculturist and  occupied  by               him  : Provided that the protection  afforded               by this clause shall not extend to any proper-               ty  specifically charged with the debt  sought               to be’ recovered." The  facts giving rise to this appeal are as  follows.   The appellants   are  two  brothers  and  their  sons.    They constituted a firm called Jahangiri Mal Kalu Ram.  On 19-11- 1956 they were declared insolvents and the Official Receiver took  possession  of  all  their  properties  including  the building in dispute.  On 21-11-1956 the appellants filed  an objection  petition  under  s.  60  of  the  Code  of  Civil Procedure  read with section 4 of the Provincial  Insolvency Act  in respect of taking the possession of the building  in dispute  basing  this upon clause (ccc) above  referred  to. The Official Receiver contended that the property in dispute is  not  a residential house but a shop and  that  the  back portion  of  the building which consists of  a  kitchen  and raised  platform etc., for placing water was given in  trust to  the petitioners for residential purposes at the time  of taking  the  possession  of the shop.   The  creditors  also contended  that the property in dispute is a shop and not  a

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residential house, even though the appellants were  admitted to be using the back portion of the shop as their residence. The Trial Court held that               ".......the  entire building consists; of  two               distinct  units,  the one opening      in  the               chowk of themandi being distinct     business               premises as a shop while theother structure               on the back thereof is exclusively a residence hours .               The unit which is a shop has the, main hallwhich               has  two. apartments on account of the  arched               columns ’inthe  middle,  and  the   kotha               immediately behind-the said half.  I  consider               this kotha to be an integral part of the  shop               because  there  is no indication at  the  spot               that it was an essential part of the  residen-               tial  house.  To the contrary,  the  staircase               leading  from the hall on to the roof of  that               kotha  and  the steps from the  roof  of  that               kotha  leading to the roof of the hall and  to               the  room on a portion thereof, show that  the               said  kotha  is an integral part of  the  shop               itself.  The two units being the               200               property  of  the same  persons  naturally  we               would  expect connecting doors  between  these               two units. He,   therefore,  upheld  the  objection  petition  of   the appellants  in respect of the portion BCDE in the  plan  and the upper storey thereon, and dismissed it in respect of the rest  of  the  building.  On appeal by  the  insolvents  the learned  District  Judge of Hissar held that  there  was  no manner  of doubt that the building in question is  the  main residential house of the insolvents and allowed the  appeal. On appeal by the creditors a learned Single Judge observed               "Accepting  the.  finding  of  the  Insolvency               Judge  that the shop has a separate access  of               its   own  it  cannot  be  denied   that   the               residential portion is connected with it.  The               shop  is in the ground floor and there  is  an               opening in the Mandi but it is connected  with               the  residential  portion on the  same  floor.               The other portion of the building is  entirely               devoted to residential purposes."               In the result he held               "It  is  only a portion of  the  ground  floor               which has been used for shops. In my  opinion,               the   view   adopted  by           the   lower               appellatecourt  is  in conformity  with  the               intent and language of theLegislature and               is also in accord with the authorities of this               Court." On  a further appeal under the Letters Patent  the  Division Bench  purporting to follow the Full Bench decision of  that Court  in Ude Bhan & Ors. v. Kapoor Chand & Ors. (1),  where it  was  held  that if out of  the  main  residential  house belonging  to a non-agriculturist judgment-debtor a  portion is let out by him to a tenant, the whole house could not  be said  to  be in his occupation, allowed the appeal  and  set aside the judgments. of the I earned Single Judge as well as the District Judge and restored the order of the  Insolvency Judge. We have carefully considered the facts of this case and  are in agreement with the view of the learned District Judge as well as the learned Single Judge of the High Court that  the

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building  is a single one with a portion of it in  the  down stairs  being  used as a shop.  That portion  opens  on  the chowk Mandi Dabwali and there is another opening for regular entrance  from a public street.  There is no  evidence  that any portion of the upstairs is being used for the purpose of the shop.  Therefore, there is no warrant for the finding of the  Insolvency Judge that the building is in  two  distinct portions.   Indeed the learned Judges of the Division  Bench did  not  differ from the finding of  the  first  appellate court  and the second appellate court on this  point.   They seem  to  accent  this finding and proceed  on  that  basis. Their   reasoning  was  that  if  a  portion  of  the   main residential  house  of  a judgment-debtor  ceases  to  enjoy immunity from attachment, in case that portion is let out by the, judgment debtor to a tenant, it (1) I.L.R. 1966 (2) Punjab 400.  201 would  necessarily  follow  that  the.  shop  portion  of  a building,  the  other  part  of  which  is  being  used  for residential purpose would not be exempt from attachment.  It appears to us that this conclusion does not follow from  the judgment  of  the Full Bench or from the  language  of  the statute.   It is obvious that what clause (ccc)  exempts  is the  main  residential house.  There is no  doubt  that  the building  is the main residential house of  the  insolvents. The  judgment of the Full Bench proceeds on the  basis  that when  a portion of even a main residential house is let  out to  a  tenant  by the judgment-debtor that  portion  is  not occupied  by him and as occupation of the residential  house by  the  judgment-debtor is one of the requirements  of  the statute  is order to qualify for exemption  from  attachment the  portion  let out cannot be said to be occupied  by  the judgment-debtor   and   therefore  does  not   qualify   for exemption.  Therefore, the decision of the Full Bench  gives no  guidance  in interpreting the question that  has  to  be considered in this case. The  question  for  decision in this case is  whether  if  a portion  of  the  residential  house  is  occupied  by   the judgment-debtor  himself  for the purposes of  a  shop  that portion  ceases  to be part of the residential  house.   It appears to us clear that ’it does not.  In the circumstances and social conditions of this country it would be  difficult to justify the conclusion that where a part of a residential house is used in connection with the business or  profession of the owner of that house that portion ceases to be part of the  residential  house.   As is well-known,  very  often  a lawyer  might  have his office room in his house,  a  doctor might  have  a consulting room in his house,  an  advocate’s library  might  occupy one of the rooms of his  house.   The room where the lawyer works or his library is located cannot be  said to cease to be part of his residential house.   The Punjab Court has taken the same view at least from the  year 1951.  In Agha Jafar Ali Khan V. Radha Kishan(1) it was held that               "where  the whole building is being  used  for               the purposes of residence, the mere fact  that               there  is a shop on the ground floor will  not               convert the building into something  different               from a residential house". The judgment of the Full Bench mentions that it is not clear in that case whether the shop portion of the building was in the  possession of the judgment-debtor or was rented out  by him.  A careful reading of the judgment shows that there was no question in that case of the shop portion of the building being  in  the possession of anybody except the  owner.   In

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Firm Ganga Ram v. Firm Jai Ram(2) where the ground floor  of a  building with three floors was being used for  commercial purposes and the first and the second floors for residential purposes  it  was held that the  judgment-debtor  can  claim immunity from attachment or sale, with respect to the entire house  under the provisions of section 60(1)  clause  (ccc), where it is the (1)  A.I.R. 1951 Punjab 433. (2)  A.I.R. 1957 Punjab 293. 202 only  residential  house belonging to them and  occupied  by them  It  is  instructive  to refer  to  a  portion  of  the discussion               "The conditions in our country are such  which               admit   of  a  composite  user  of  the   same               building.   A part of the same house  is  used               for dwelling, and the other part is meant  for               commercial  or business purpose and  sometimes               even the later portion, particularly after the               business hours, is used for dwelling.               ". . . Having regard to the mode of living  of               the  people in this country, their habits  and               customs,  it  is  not  possible  generally  to               designate a particular building as one,  which               is used exclusively for a residential  purpose               in contradiction to a commercial purpose.               On  this  basis,  residential  building  of  a               medical practitioner, will not be exempt  from               liability  to  attachment  or sale,  if  in  a               portion he receives or treats his patient._               "Similarly, where in his house, an  iron-smith               works on his forge, a shoes-maker maker  shoes               on his last, a potter turns his wheel, or  any               other  artisan  spreads his tools, to  make  a               living, or a petty trader keeps his wares  for               sale,  according to the interpretation,  which               the  learned counsel for the respondent,  asks               me to put on the words occurring in the  Code,               the provisions will be powerless in  extending               any  effective protection.  This  construction               will  result in defeating the very purpose  of               the law." We  completely agree with the learned Judge’s  observations. It  is  interesting to note that in Punjab  Mercantile  Bank Limited  (in liquidation) Jullundur City v.  Messrs  General Typewriter Co., Jullundur City() Tak Chand, J. who gave  the above  judgment  held  that where  the  judgment-debtor  was residing  in the greater part of the house two  chabaras  on the  first  floor let out to tenants were  not  exempt  from attachment and sale.  To the same effect is the judgment  of the Full Bench relied on by the Division Bench in this case. Tek  Chand,  J. has kept clear in his mind  the  distinction between  a case where a portion of the residential house  is let out and a portion used by the owner himself, though  for a  purpose other than residential.  Such use does  not  make the residential house cease to be a residential house or the portion so used as not part of the residential house. (1) 1962 P. L. R. 10 8 1. 203 There  is no doubt that this was the main residential  house of the insolvents and it was occupied by them.  The facts of the  case bring it squarely within the scope of the  section and   the   whole  building  is,  therefore,   exempt   from attachment. The  appeal  is,  therefore, allowed, the  judgment  of  the

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Division  Bench set aside and the judgments of  the  learned Single  Judge and the learned District Judge are  restored. The respondents will pay the appellants’ costs. S.B.W. Appeal allowed. 204