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PETITIONER: SUKH LAL AND ORS.

       Vs.

RESPONDENT: STATE BANK OF INDIA AND ORS.

DATE OF JUDGMENT: 13/09/1966

BENCH: SHAH, J.C. BENCH: SHAH, J.C. WANCHOO, K.N. BACHAWAT, R.S.

CITATION:  1967 AIR  543            1967 SCR  (1) 317

ACT: Displaced Persons (Debts Adjustment) Act, 1951 (70 of 1951), s. 2(6), (10)-Displaced debtor, who is-"place’of residence", meaning of.

HEADNOTE: The joint Hindu family comprising of the appellants and some others,  carried on business in groceries at Harunabad,  now in Pakistan.  The respondent-Bank had advanced loans to  the business.   On the setting up of the Dominion& of India  and Pakistan, riots broke out in Harunabad, and the business was closed  and the members of the family residing at  Harunabad migrated  to India.  The Bank filed a suit against  all  the members of the family for the amount due.  The members  then applied  to the Tribunal set up under the Displaced  Persons (Debts  Adjustment) Act, 1951 and the Bank’s suit was  ’also transferred  to  the Tribunal.  The Tribunal held  that  all members of the family were displaced debtors and on  appeal, the  High Court held that the appellants were not  displaced debtors. HELD,:    One  of the appellants had established his  status as a displaced debtor. For  a person to be a displaced debtor under the Act  it  is not necessary that he must have before migration to India  a place  of  residence only in the territory which  later  was included  in Pakistan, and had no place of residence in  the territory  which  is now in India.  The words of  the  defi- nition  in s. 2(10) read with s. 2(6) are sufficiently  wide to include the law of a person who had a place of  residence in India as a place of residence in an area now forming part of Pakistan, provided that -such a person was displaced from the  latter  residence  because of the  setting  up  of  two dominions  or  on account of civil disturbances or  fear  of such disturbances. [321 F, G] The expression ’Place of residence’ connotes a place where a person has his dwelling house which need not necessarily  be permanent or exclusive. [321 A] The   ’displacement’   contemplated  by  the  Act   is   the displacements the person and not of the business. [323 E]

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JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 582-583 of 1964. Appeals  from the judgment and order dated July 21, 1960  of the Punjab High Court in R. F. A. Nos. 7 and 8 of 1954. A.   K. Sen, Uma Mehta and S. K. Mehta and K. L. Mehta,  for the  appellants (in both the appeals). H.   L. Anand and K. Baldev Mehta, for the respondent No. 1. The Judgment of the Court was delivered by Shah,  J.-Sukh Lal, Karam Chand, Sohan Lal and  Prabh  Dayal are four brothers and they with their sons constituted joint 318 Hindu  family.  Sukh Lal has two sons Nand Lal and  Hardwari Lal  and  Karam  Chand has a son  Shiv  Dayal.   The  family carried on business in groceries at Ganganagar in the former Bikaner  State and at Fazilka in the Province of Punjab,  in the name and style of "Panju Mal Tilok Chand".  A branch  of the  Business was started in or about 1930 at  Harunabad  in the  former State of Bahawalpur.  The name of that  business was  later  changed to Sohan Lal Shiv Dayal.   In  September 1946  two cash credit accounts were opened by Sukh Lal  with the Imperial Bank of India, and certain commodities of Sohan La] Shiv Dayal were deposited as security with the Bank.  On the setting up of the Dominions of India and Pakistan  there were  riots in Harunabad and a large quantity of  the  goods pledged  with the Bank by Sohan Lal Shiv Dayal  was  looted. The business was then closed, and the members of the  family who  were residing at Harunabad migrated on August 19,  1947 to  Fazilka.  The Bank sold the goods which were saved,  and instituted  suit  No.  198  of 1950  in  the  Court  of  the Subordinate Judge, First Class, Fazilka against the  members of  the joint family for a decree for Rs. 23,418/12/-  being the  balance  due at the foot of the accounts of  Sohan  Lal Shiv Dayal. The members of the joint family then applied to the Tribunal set up under the Displaced Persons (Debts Adjustment) Act 70 of 1951 for adjustment of their debts due to the Bank and to other creditors.  It was their case that they were displaced debtors  and since the branch at Harunabad was closed  after the partition of India, the debts due by them were liable to be  adjusted under the provisions of the  Displaced  Persons (Debts  Adjustment) Act 70 of 1951.  The suit filed  by  the Bank  was transferred to the Tribunal and  was  consolidated for  trial with the petition under s. 5 of Act 70  of  1951. The  Tribunal held that all the members of the  family  were residing  and carrying on business and owning property  both residential  and agricultural at Harunabad and as they  left Harunabad after March 1, 1947 due to civil disturbances  and were  at  the date of the suit and  thereafter  residing  at Ganganagar,  they  were  displaced  debtors.   The  Tribunal further held that under s. 17(b) ,of Act 70 of 1951 the Bank was not entitled to recover from the debtors the balance  of the debt for which the goods pledged were ,sold by the Bank. Accordingly the Tribunal allowed the application under S.  5 of  Act 70 of 1951 and declared that nothing was due by  the applicants to the Bank in respect of the liability under the two accounts.  The suit filed by the Bank was also dismissed by  the  Civil  Court.  Against the  orders  passed  in  the petition under s. 5 of Act 70 of 1951 and the decree in Suit No. 198 of 1950 two appeals were preferred to the High Court of Punjab.  The High Court held on a review of the  evidence that four members of the family : Nand Lal and Hardwari Lal, sons  of Sukh Lal, Shiv Dayal, son of Karam Chand and  Sohan Lal, son of Tilok Chand

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319 were displaced debtors since they were actually residing and carrying  on  business at Harunabad immediately  before  the partition  of  India and their liability to the  Bank  stood extinguished, but the other members of the family Sukh  Lal, Karam  Chand  and  Prabh  Dayal who  were  not  residing  in Harunabad   immediately  before  the  partition,  were   not displaced debtors.  The High Court accordingly modified  the decree  in  the suit and the order passed  in  the  petition under  s. 5 of Act 70 of 1951, and declared that three  mem- bers  of the family, Sukh Lal, Karam Chand and  Prabh  Dayal were  liable to satisfy the debt due to the Bank  for  their proportionate share under s. 22 of the Act, and remanded the proceedings for determination of their "final liability"  in accordance  with  the provisions of  the  Displaced  Persons (Debts Adjustment) Act 70 of 1951. The relevant provisions of Act 70 of 1951 are briefly  these Section  2(1 0) defines a displaced person’as  meaning  "any person,  who, on account of the setting up of the  Dominions of  India and Pakistan, or on account of civil  disturbances or  the  fear of such disturbances in any area  now  forming part  of  West Pakistan, has, after the 1st  day  of  March, 1947,  left, or been displaced from, his place of  residence in  such  area  and who has been  subsequently  residing  in India, and includes any person who is resident in any  place now forming part of India and who for that reason is  unable or has been rendered unable to manage, supervise or  control any  immovable property belonging to him in  West  Pakistan, but  does  not  include a  banking  company."  Section  2(9) defines a ’displaced debtor’ as meaning "a displaced  person from  whom  a  debt  is  due  or  is  being  claimed".   The expression  ’debt’  is  defined  in cl. (6)  of  s.  2.  The material part of the definition reads :               "’debt’ means any pecuniary liability, whether               payable  presently  or in future, or  under  a               decree or order of a civil or revenue court or               otherwise,  or  whether ascertained or  to  be               ascertained, which-               (a)   in  the case of a displaced  person  who               has  left or been displaced from his place  of               residence in any area now forming part of West               Pakistan,  was  incurred  before  he  came  to               reside in any area now forming part of India;               (b)   in  the case of a displaced person  who,               before and after the 15th day of August, 1947,               has been residing in any area now forming part               of India, was incurred before the said date on               the security of any immovable property situate               in  the territories now forming part  of  West               Pakistan;                320               Provided               (C)..................               Under  s.  5  of the Act a  person  who  is  a               displaced  debtor  may apply within  the  time               fixed thereby to the Debt Adjustment  Tribunal               for  adjustment  of  his  debts.   Section  22               provides for the apportionment of joint debts.               It enacts               "Where  a debt is due from a displaced  person               jointly  with  another  person,  the  Tribunal               shall, for the purposes of this Act  apportion               the  liability between them according  to  the               following rules, namely :               (a)   if  the  liability  of  each  debtor  is

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             defined,  then according to the defined  share               of each;               (b)   if  the debt was taken for any trade  or               business of the joint debtors, then  according               to  the  shares  held by  each  of  the  joint               debtors in the trade or business;               (C)               (d)               (e)   if  the debt was taken by a joint  Hindu               family, the members of the joint Hindu  family               shall be deemed to be joint debtors within the               meaning of this section and the debt shall  be               apportioned amongst the members thereof in the               same  proportion  in  which  shares  would  be               allotted to them on partition:               Provided The  test  applied  by the High Court  for  determining  the status  of  the applicants was in our  judgment,  erroneous. The High Court thought that a person may claim the status of a displaced person under the Act if he was actually residing in  Pakistan immediately before the partition and  has  left that place.  The learned Judges observed :               "The evidence, which the learned Tribunal  has               considered,   does  not  really  support   the               suggested conclusion that all the  respondents               were  residing in Pakistan immediately  before               partition.   Learned  counsel  have  taken  us               through  the entire evidence, and  it  appears               that,  out of the seven adult members of  this               family,  four,  namely, Sohan Lal,  Nand  Lal,               Hardwari  Lal and Shiv Dayal, were  living  in               Harunabad  immediately  before  partition  and               attending to their business in Pakistan, while               the  other  members  of the  family  were  not               living there.I feel satisfied that, out of the               respondents, Sohan Lal, Nand Lal, Hardwari Lal               and  Shiv  Dayal  were  actually  residing  in               Pakistan before the partition,                                    321               and equally no doubt that they were  displaced               from their place of residence in Pakistan,  on               account  of  the  partition  of  the   country               The  other respondents Sukh Lal,  Karam  Chand               and  Prabh Dayal are not proved to  have  been               residing   in  Pakistan   immediately   before               partition  and  cannot  be  called   displaced               debtors." Under  the Act a person who had a place of residence in  the territory  which at the date of the Act was in Pakistan  and had  been  displaced  from that place of  residence  on  the setting  up  of the Dominions of India and Pakistan,  or  on account  of civil disturbances or fear of such  disturbances after  March  1,  1947 would be  a  displaced  person.   The Legislature  has conferred the status of a displaced  debtor (provided other conditions are fulfilled) upon a person  who is  displaced  from his place of residence in  Pakistan,  as well as upon a person who has left Pakistan.  The expression "place of residence" connotes a place where a person has his dwelling  house, which need not necessarily be permanent  or exclusive.  A person may have more places of residence  than one at a given time.  A place occupied by a person with  the intention of setting up a fixed, though not permanent-abode, would  be deemed to be a place of residence.  Sojourn for  a purely temporary purpose will not constitute residence,  and the place of sojourn will not be deemed a place of residence

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within the meaning of the Act: but where a person  possesses establishments at more places than one and spends time  more or  less considerable in all those places, as exigencies  of his occupation, vocation or fancy demand, he would be deemed to have a place of residence at each of those places. We are unable to agree with the contention of the Bank  that for  a person to be a displaced debtor under  the  Displaced Persons  (Debts  Adjustment)  Act 70 of 1951  he  must  have before  migration to India a place of residence only in  the territory  which later was included in Pakistan, and had  no place of residence in the territory which is now India.  The words  of the definition in s. 2(10) read with s.  2(6)  are sufficiently wide to include the case of a person who had  a place of residence in India as well as a place of  residence in an area now forming part of Pakistan, provided that  such person  was displaced from that latter residence because  of the  setting up of the two Dominions or on account of  civil disturbances or fear of such disturbances. The  three  appellants  claim  that  they  had  a  place  of residence  in  Pakistan, and they were displaced  from  that place  of  residence.   A large  number  of  witnesses  were examined on behalf of the appellants before the Tribunal and they generally stated that four members of the family,  Nand La], Sohan Lal, Shiv Dayal and Hardwari 322 Lai  used to reside and carry on the business at  Harunabad. They also stated that the "applicants" or the "petitioners," meaning  thereby  all  the members of  the  family-had  been displaced  from Harunabad.  But if the other members of  the family  had  no  place  of residence  in  any  area  now  in Pakistan, mere general assertions cannot come to their  aid. Jagan  Nath  deposed that before the creation  of  Pakistan, some  times Sukh Lai used to live at Fazilka and some  times at  Harunabad.  Nathu Ram stated that Sukh Lai used to  stay at  Harunabad  from time to time.  Ganesh Dass  stated  that Sukh Lai was one of the proprietors of the business and used to come off and on to harunabad.  If SukhLal was  ordinarily residing at Fazilka and for the purpose of attending to  the business visited Harunabad and set up his residence in  that town,  it would be difficult to say that he had no place  of residence at Harunabad.  It is true that Sohan Lai, the only member of the family examined as a witness, did not say that Sukh Lai had a place of residence at Harunabad.  But that by itself is not a ground for rejecting Sukh Lal’s claim.   Our attention  was also invited to the examination of  Sukh  Lai presumably  under O.X of the Code of Civil Procedure  before framing  issues  in  which there is no record  of  Sukh  Lai having  claimed that he had a place of residence in  Haruna- bad.   But  the examination under O.X of the Code  of  Civil Procedure is by the Court- with a view to ascertain the case of a party and to frame appropriate issues, and omission  to make  any statement on the point under discussion cannot  be pressed into service against him. The  Tribunal apparently accepted the testimony of the  wit- nesses who deposed that Sukh Lai had a place of residence at Harunabad.  The High Court disagreed with that view, for  in their  opinion  Sukh  Lai was not proved  to  have  actually resided immediately before the partition at Harunabad.   But the  test of actual residence before partition,  applied  by the  High  Court  was, in our  judgment,  erroneous.   On  a consideration of the evidence, we are of the view that  Sukh Lai has established his status as a displaced debtor and the High  Court was in error in setting aside the order  of  the Trial Court in so far as it related to Sukh Lai. About  Karam  Chand and Prabh Dayal, however,  there  is  no

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evidence on the record that they had at any time a place  of residence   at  Harunabad.   Counsel  for  the   appellants, however, contended that the business of Sohan Lai Shiv Dayal was  a  joint  family business and  even  though  only  four members of the family were actually residing and carrying on the  business and attending to it at Harunabad,  the  entire family  must  be  deemed to have a  place  of  residence  at Harunabad  and by reason of the setting up of the  Dominions of India and Pakistan and also on account of                             323 the  civil disturbances in the area all the members  of  the family must be deemed to have left or to have been displaced from that place of residence.  It is not necessary to decide in  this  case whether the expression "person" in  s.  2(10) includes  a  Hindu joint family.  But in  the  present  case there  is  no  evidence  that  the  place  of  residence  at Harunabad of the four members of the family was the place of residence  of  the joint family.  The  contention  that  the joint  family had a place of residence at Harunabad was  not set  up either in the Trial Court or in the High Court.   It was urged for the first time in this Court. It  was  contended in the alternative, by  counsel  for  the appellants,  that  what is material in  deciding  whether  a person  is  a  displaced  person,  especially  when  he  was carrying on business, is the location of the business and if on  account  of the setting up of the two Dominions,  or  on account  of disturbances-actual or apprehended-the  business had  to be closed, the person carrying on the business  must be deemed to be a displaced person.  As a corollary to  that submission  it  was  urged  that the  joint  family  of  the appellants and other members was carrying on the business at Harunabad  and  since  that business had  to  be  closed  on account  of  civil disturbances, the members of  the  family owning that business must be deemed to be displaced persons. But this is the argument that the joint family was displaced from   its  place  of  residence  in  another   garb.    The displacement contemplated by the Act is the displacement  of the  person  and not of the business.  If the owner  of  the business  whether  he  was  carrying  on  business  in   the territory  now in Pakistan or not at the relevant  time  had left  or had been displaced on account of the  circumstances mentioned  in cl. (10) of s. 2, he would acquire the  status of  a  displaced person.  The status of an individual  as  a displaced  person  arises  on account of  leaving  or  being displaced and not on account of closure of the business that he may be carrying on. In  our  view,  therefore, the appeal of Sukh  Lal  must  be allowed and the appeal filed by Karam Chand and Prabh  Dayal must be dismissed.  The order- passed by the High Court will stand  modified  and  the  Court  of  First  Instance   will determine the final liability of Karam Chand and Prabh Dayal for  the  debt  due  to the  Bank  in  accordance  with  the provisions   of  s.  22  of  the  Displaced  Persons   (Debt Adjustment) Act 70 of 1951. There is little doubt that on account of the  circumstances, over  which  the  appellants had  no  control,  property  of considerable value belonging to them had been destroyed.  In the circumstances there will be no order as to costs in this Court and in the High Court till this date. Y. P.                      Appeal No. 582/64 allowed.                    Appeal No. 583/64 dismissed. 324

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