C. Kondavya Chetty vs Sivasankara Naicker and others

Rajagopala Ayyangar, J.—The plaintiff is the petitioner. He seeks revision of the judgment of the learned District Munsif of Kancheepuram

in S. C. S. No. 616 of 1951 brought by him for the recovery of Rs. 274-8-0 on foot of a promissory note executed in his favour by the first

defendant in the case. The defence raised was that the debt was liable to be scaled down under Act IV of 1938 and if scaled down the plaintiff

would be entitled to Rs. 15. The Court below has passed a decree for Rs. 15 accepting the contention of the defendants, instead of for the sum

claimed. The case raises for consideration the proper interpretation of the provisions of the Madras Agriculturists ''Relief Act, IV of 1938, in their

application to the suit transaction. On the facts found the following were the transactions between the parties. On 19th June, 1927 the first

defendant executed in favour of one Raghunayakulu an undivided brother of the plaintiff a promissory note for money borrowed. This was

discharged by the execution of another note by the same promise on 10th September, 1930, Ex B1 in the case. In this renewed promissory note

the amount due to the promised was ascertained at Rs. 244 and the promissory undertook to pay this sum with interest at 18 per cent per annum.

There were several payments made in respect of this promissory note which was kept alive by successive endorsements until 10th September

1939 when the note was discharged with an endorsement in these terms

On the same day a fresh promissory note Ex. A-2 was executed in favour of Ragunayakulu for a sum of Rs. 170 with interest at 6 1/4 per cent

per annum. Several payments were made to Ragunayakula till 1947 when the note was endorsed in favour of the present plaintiff. Further

payments were made to him and the note was finally discharged by the execution of a fresh promissory note on 30th April, 1948 carrying on

interest at 5 1/2 a percent per annum which is the note now in suit.

The defence of the first defendant, the executant of the note, and defendants 2 and 3 his undivided sons is that they are entitled to a scaling

down of the debt evidenced by the promissory note dated 30th April, 1948 by treating it as a renewal of the promissory note executed in favour of

Ragunayakulu in 1927. The learned District Munsif accepted this defence and scaled down the amount due to Rs. 15.

The contentions raised on behalf of the plaintiff who is the petitioner here are two: viz., (1) that he and Ragunayakulu were divided long before

and that the execution of the note In his favour should therefore be deemed to be in favour of a now creditor and so not subject to sealing down by

the application of Explanation (iii) to S. 8 of the Agriculturists Relief Act. The finding, however, of the Court below is that the debt represented by

the promissory note was an asset of the joint family consisting of the plaintiff and Ragunayakulu, the learned District Munsif refusing to believe the

evidence as to division adduced on behalf of the plaintiff. This being a pure question of fact it is not open to the petitioner to raise this issue in this

Court.

The second point is that there is no legal connection between Ex. B 1 and Ex. A 2 so as to constitute the latter a renewal of the former and that

if this were made out, the sealing down effected by the Court below was erroneous. I am of opinion that this contention of Counsel is well founded.

The executant of these several promissory notes knew the difference between a renewal and a fresh note. When Ex. B. 1 was executed in renewal

of the note of 1927 proper words are used in order to indicate that the consideration for the promissory note of 1930 is the discharge of the earlier

note. When we come to the discharge of Ex. B. 1, the endorsement on it is that is was discharged according to law. It may be noticed that the

discharge was effected after the Agriculturists Relief Act came into force and on the same date Ex. A. 2 was executed reciting that cash

consideration had been paid an that date for that note. It is therefore clear that the parties with knowledge of the provisions of the Agriculturists

Relief Act clearly intended to effect a severance between Ex. B. 1 and the new promissory note, Ex. A. 2. I do not see anything in the

Agriculturists Relief Act which prevents this intention of the parties expressed in so unambiguous and unequivocal terms being given effect to. The

effect of the transaction was really as if the promised discharged Ex. B. 1 by a cash payment and received back the same or different amount of

cash on the same date as consideration for the new transaction, I do not see why legal effect should not be given to this state of facts which the

parties desired to bring about and succeeded in doing it. In my opinion, the suit promissory note can be traced only up to Ex. A. 2 and not beyond

and in this view the suit ought to have been decreed for the sum claimed by the plaintiff. The revision petition succeeds and the order of the Court

below is set aside and the plaintiff''s suit is decreed as prayed for. The petitioner is entitled to his costs in this Court.