Avva Krishnamurthy vs Gudipati Satyanarayanamurthy

K. Subba Rao, C.J.—This is a decree-holder''s appeal against the order of the learned Subordinate Judge, Masulipatam, dated 12th December, 1952 scaling down the decree in O. S. No. 27 of 1936 on his file.

The respondent, his brothers and his father executed two mortgage deeds in favour of the appellant, one dated 28th March, 1927 and the other dated 12-6-1930. The first document was for the principal amount of Rs. 8,000/-carrying interest at the rate of As. 14-6 Ps. per cent per month from the date of the deed and the second mortgage deed was for the principal sum of Rs. 3,000/- carrying compound interest at the rate of Rs. 15/- per cent per month.

The properties mentioned in schedules A, B and C attached to the plaint were mortgaged under the first mortgage, while the properties mentioned in Schedules D and E in addition to the properties mentioned in Schedules A and B were, mortgaged under the second document. The mortgagee.as he was bound to do u/s 67-A of the Transfer of Property Act, combined both the mortgages and instituted O. S. No. 27 of 1936 on the file of the Subordinate Court, Masulipatam, to recover the amount due under the aforesaid two mortgages.

He claimed a sum of Rs. 16,500/- as the amount due to him under the first mortgage. Under the second mortgage, after calculating interest, he arrived at the figure, Rs. 5,664-6-0 and, out of that amount, he gave up Rs. 4,668-6-0 and claimed Rs. 1,000/- as the amount due to him. In all, he claimed in the plaint a sum of Rs. 17,500/- under both the mortgages. He gave up a portion of his claim, presumably, because, at the time he filed the suit, i.e., in 1936, the properties might not have been sufficient - to recover the entire amount due under both the mortgages.

On 8-11-1937, the learned Subordinate Judge passed a preliminary decree. It showed that the plaintiff claimed only Rs. 16,500/- as the principal under the first, bond and Rs. 1,000/- as the principal under the second bond. Under the decree, a sum of Rs. 19,490-12-0 was found to be due to the plaintiff. In due course, a final decree was passed. On 11-6-1938, the 8th defendant, Gudipati Satyara, thamma, the sister-in-law of the respondent herein, filed an application (I. A. No. 687 of 1938, Sub Court, Bandar) u/s 19 of the Madras Agriculturists Relief Act, for scaling down the decree debt.

The learned Subordinate Judge dismissed the application on the ground that she was only a maintenance decree-holder with.a charge of family property and therefore was not an agriculturist within the meaning of the Act IV of 1938. She preferred a revision to the Madras High Court. Wadsworth, J. dismissed the revision petition on 8-11-1941 on the same ground namely, that a charge or maintenance of a widow though it was an interest in immoveable property, was not one in which the widow had a saleable interest.

On 27-3-1950, the respondent, another judgment-debtor, filed I. A. No. 782 of 1950 of the file of the Subordinate Court, Masulipata for the same relief. The decree-holder raise various contentions. The learned Subordinate Judge, by his order dated 28th October, 1952, negatived them and held that the respondent was entitled to have the decree scaled down. He directed the parties to file memos of calculation showing the amount due as scaled down. Pursuant to the direction given by the learned Subordinate Judge, both parties filed the calculations and the learned Judge, after considering them held that the decree-holder was entitled to a sum of Rs. 1,762-7-3 plus Rs. 105-(sic) with interest thereon at six per cent per annum from 28-3-1947 till the date of payment. Hence this appeal.

The learned Counsel for the respondent Mr. M. S. Ramachandra Rao, has raised a preliminary objection, namely, that the appeal is re-maintainable. His contention is that the learned Subordinate Judge made a final order on 28th October 1952 allowing the petition and, therefore the appellant should have preferred an appeal against the order u/s 96 of the Civil Procedure Code. This argument, if we may say so, is based upon the wrong terminology used (sic) the learned Judge in making his first order (sic) 28th October 1952. Instead of giving his findings and then p(sic)ing the application I. A. No, 782 of 1950 for fr(sic) orders. the learned Judge stated that he allowed the petition. But, a perusal of both the order leaves no doubt in our minds that, by his first order, the learned Judge gave his findings on (sic) the contentions raised by the appellant a(sic) after negativing them, finally disposed of the application, by his order dated 12th December 1(sic) There was only one final order in the case (sic) that was the one made on 12th December 1(sic) Section 25-A of the Madras Agriculturists Re(sic) Act governs the right of appeal against an order made under that Act. The section reads as follows:

An appeal shall lie from any of the following orders passed by a Court under this Act (sic) if such order related to the execution, discharged or satisfaction of a decree within the meaning of Section 47 of the CPC 1908 (sic) (b) An order u/s 19 amending or (sic) fusing to amend a decree or entering or refused to enter satisfaction in respect of a decree.

The order under appeal was one made u/s 19 amending the decree. An appeal against that order is, therefore, maintainable under (sic) provisions of the aforesaid section.

Coming to the merits. Mr. Somasu(sic) ram, the learned counsel for the appellant (sic) tends that the respondent is precluded by (sic) principle of res judicata from raising the question of the scaling down of the decree under the provisions of the Madras Agriculturists Relief Act. His argument is based upon the order of the learned Subordinate Judge in I. A No. 687 of (sic)38 filed by the eighth defendant and of Wads worth, J., in O. R. P. No. 92 of 1940 (Mad) (A).

In that application, Sathyavathamma (8th defendant) asked for scaling down of the decree debt on the ground that she was an agriculturist. In that application, she did not make any of the (sic)ner judgment-debtors parties. Both the Subordinate Court and the High Court dismissed her application on the ground that she has no sale-(sic)te interest in the agricultural land. The application was made in her own right add it was dismissed because she had no right.

She did not seek to maintain that application (sic)a representative capacity, nor was there any decision, directly or indirectly, holding that the (sic)ier members of the family were not entitled to (sic)lef under the provisions of the Madras Agriculturists Relief Act. In the circumstances, when (sic) application by the eighth defendant was not right to be maintained in a representative capa-(sic) and when it was dismissed without adjudication of the rights of the respondent, it is not possible to hold that the order on that application could conceivably operate as res judicata to include the respondent from raising the question of scaling down the decree in the present proceedings. We therefore negative the first con (sic)tion.

The learned counsel for the appellant (sic)n argues that the respondent was not an agriculturist on any one of the three crucial dates, namely, 1-10-1937, 23-3-1938, and 27-3-1950 and, therefore he would hot be entitled to relief under the Act. Admittedly, the subject matter of the mortgage was agricultural lands and they were processed by the members of the respondent''s fa(sic)y. Ex. B-1 is a sale deed dated 10-11-1943, thereunder the members of the family sold the properties covered by the mortgage deeds to third (sic)ties.

It establishes conclusively that till 1943 the respondent and the other members of the family (sic)a saleable interest in the agricultural lands. (sic) it is contended that on the date when the application for scaling down was filed, the respondent had no other land except item 13 which was not an agricultural land. In support of this (sic)ention. reliance is placed upon the description of item 13 in Schedule A annexed to the (sic)nt. It reads:

Particulars of boundaries of the pati(sic)site which is situate at Ayyavarirudravaram and which was purchased from Burla Chenchayya and others:

(sic) - Public street, 45 yards; West - the house belonging to Katla Govindu, 41 yards; North - (sic)dala Lakshminarayana''s (X) 56 yards; and (sic)h - Public street, 46 yards; the site measuring 2,193 square yards.

The learned counsel contends that this description indicates that the site is only a house-site (sic) therefore, cannot be an agricultural land, (sic)a facie, this argument appears to be plau(sic) but there is other evidence that is accepted by the learned Judge indicating that this site (sic)used as a dry land by the. members of the respondents family. P. W. 1 the respondent''s (sic)her. says that his family owns 35 cents of (sic)land besides pati sites.

In the cross-examination, he reiterates the (sic) fact by Stating that they were left with a dry land of 38 cents out o� the hypotheca. In the re-examination, he affirms the same fact. The appellant did not make any suggestion in the cross-examination that item 13 was a house site and therefore, it was not an agricultural land. R W. 1, the appellant, does not say in his cheif-examination that the pati site was a house site and not an agricultural land.

In the circumstances, we hold, though with some reluctance, that item 13 w"s also an agricultural land. That apart, the respondent relies upon Exhibits A-2 and A--3 in support of his contention that by the date of his application he had a saleable interest in the agricultural lands. Ex. A-2, dated 29-5-1949, is a sale deed executed by one T. Alwandarurao and another in favour of P. W. 1, the manager of the respondent''s family. Ex. A-3 dated 4-7-1949, is another sale deed executed by one Sri Addanki Srirangacharyulu and another in favour of P. W. 1. P. W. 1 in his evidence says that he purchased lands of the extent of eight acres On behalf of his family under the aforesaid sale deeds.

The only suggestion that was put to him in his cross-examination was that Ex. A-1, the power of attorney executed by the respondent and others in favour of P. W. 1, did not confer power on him to purchase lands on behalf of the family. The fact that the power �f attorney expressly conferred On him the power to sell lands, does not, in any way" affect his power as a manager of the joint Hindu family to purchase lands on behalf of the family.

Indeed, R. W. 1, in his evidence, did not suggest that the properties covered by Exhibits A-2 and A-3 were the self-acquisitions of P. W. 1 but only that they were purchased benami for third parties. Except this bare suggestion, there is nothing on the record to indicate that the said properties were purchased by the manager of the respondent''s family for the benefit of third parties.

We, therefore, hold that the properties covered by Exhibits A-2 and A-3 were the family properties and that the respondent, being a member of the joint family, had a saleable interest in the same on the date when he filed the application. It is not disputed that these properties were only alienated by P. W. 1 subsequent to the filing of the application. We, therefore, hold agreeing with the Court below, that the respondent was an agriculturist as defined in the Act IV of 1938.

Finally, the learned counsel for the appellant argues that for the purpose of the application of the provisions of the Madras Agriculturists Relief Act, the principal amount shown in the second mortgage should be taken as the basis and not, as the learned Subordinate Judge did, the sum of. Rs. 1,000/- claimed by the appellant as the principal.

He elaborates this argument by stating that, at the time when the appellant filed the suit he had not in his view the Agriculturists Relief Act for the simple reason that the Act was not then in existence, that therefore, he had for other purposes confined his relief to a smaller amount and that the Act could not enlarge the right of the respondent to get the decree scaled down ignoring the real facts. This argument is Plausible, and, if the law permits, We would certainly be inclined to accept it. But the provisions of the Agriculturists Relief Act do not permit resuscitating claims released or given up by the parties before the Act came into force.

In this case, as we have already stated, the plaintiff-appellant, in clear and unambiguous terms, gave up his claim to a large portion of the principal covered by the second mortgage and confined his relief only to a sum of Rs. 1,000/-. If so, for the purpose of the application of the provisions of the Act, the principal claimed in the plaint must be deemed to be the principal to which the plaintiff was entitled. The relevant provisions of the Agriculturists Relief Act, namely, sections 8 and 12, may be extracted. Section 8 reads:

Debts incurred before the 1st October 1932 shall be scaled down in the manner hereunder, namely : (1) All interest outstanding On the 1st October 1937, in favour of any creditor of an agriculturist whether the same be payable under law, custom or contract or under a decree of Court and whether the debt or other obligation has ripened into a decree or not, shall be deemed to be discharged, and only the principal or such portion thereof as may be outstanding shall be deemed to be the amount repayable by the agriculturist on that date.

X X X

Section 12 reads:

All debts which have been scaled down under the provisions of this Act, shall, so far as any sum remains payable thereunder, carry from the date upto which they have been scaled down interest on the principal amount due on that date at the rate previously applicable under law, custom, contract or otherwise:

provided that * * *.

The principal outstanding on 1st October 1937 or the principal due on that date can only be the principal claimed by the appellant after releasing the balance of, his claim. We find it difficult to hold that, when a party gives up a portion of his claim for principal, that principal so given up was still outstanding on a subsequent date for the purpose of the application of the provisions of the Act IV of 1938.

We, therefore, agree with the learned Judge in Holding that, for the purpose of the application of the provisions of the Madras Agriculturists Relief Act, the principal that should be taken as outstanding is that part of the principal remaining due to the appellant after he released the other part.

In the result, the appeal fails and is dismissed, but in the circumstances, without costs.