Doraikannu Odayar vs Veerasami Padayachi alias Veerasami Chatrakondar

Wadsworth, J.—This Civil Revision Petition raises questions arising out of the explanation to Section 8 of Madras Act IV of 1938. The

petitioner was the third defendant in a suit on a promissory note and he applied to scale down the decree u/s 19. The promissory note relates back

to a mortgage of 1922 executed by one Samiappa in favour of Pakkiri for a sum of Rs. 500. In 1929 Pakkiri assigned the mortgage to the plaintiff.

Before this assignment, a payment of Rs. 250 had been made towards the mortgage. On 25th August, 1930, the first defendant, father of

defendants 2 and 3, purchased the land covered by the mortgage from the sons of Samiappa and agreed to pay Rs. 755 in discharge of the

mortgage. On 21st March, 1934, the first defendant paid Rs. 830 towards0 the mortgage and on the same date he and his son the second

defendant executed a promissory note for Rs. 150 in favour of the mortgagee and the mortgage was thereby discharged. The plaintiff sued on the

promissory note alleging that it was a family debt binding on all the coparceners and impleading the third defendant as a coparcener. On this basis

he got a decree on 28th September, 1936. The third defendant applied u/s 19 of Act IV of 1938 to scale down the debt on the basis that the

promissory note was in effect a renewal of the mortgage executed by Samiappa. The trial Court held that it was not a renewal and it is this decision

which is now under consideration.

Now in view of our decision in Neelappa Reddiar Vs. Solaimuthu Udayan and Another, approving the decision of Somayya, J., in Ramaswami

Chettiar, In Re: Balusu Subbaraidu and Others, , we must hold that the explanation to Section 8 contemplates the renewal of a debt or its inclusion

in a fresh document by the same debtor. But it does not necessarily follow that the parties to the first debt and the second debt must be absolutely

identical. There may be cases in which a debt due jointly and severally from A and B is included in a fresh document executed by A alone or cases

in which a debt due solely by A is included in a fresh document executed by A and B. But we are not really concerned in the present case with

either of these cases. In so far as there is a mortgage by Samiappa discharged by a promissory note executed by the first and second defendants it

cannot be said that the promissory note is a renewal of the mortgage or an inclusion of the amount of that debt in a fresh document. But this does

not dispose of the question. When the first defendant who must be deemed in view of the decree to have been acting as manager of the joint family

purchased this land and undertook to discharge the mortgage on it, although there was no obligation to the creditor which the creditor could

directly enforce by suing for the money from the first defendant, there was a liability towards that creditor which the creditor could enforce

indirectly by suing on his mortgage for the sale of the hypotheca which the first defendant had purchased'' and this liability is a debt within the

meaning of Madras Act IV of 1938. So much follows from the decision of Varadachariar and Abdur Rahman, JJ., in Perianna Goundan Vs.

Sellappa Goundan and Others, . It also seems to follow from that decision that the liability of the purchaser being traceable to the original mortgage

must be scaled down with reference to the date of the mortgage. On the basis of this decision we must hold that when the first and second

defendants executed the suit promissory note they were in fact renewing a prerexisting liability which bound the family; or at all events, having

regard to the strict definition of the term ''renewal'' in Barber v. Macknell (1892) 68 L.T. 29, they were including this pre-existing liability in a fresh

document binding on the same debtor. It seems to follow therefore that the third defendant who is u/s 19 entitled to scale own the joint family debt

embodied in the decree can ask that this debt be treated as a renewal of the pre-existing liability which dates, back to the mortgage of Samiappa.

It has, however, been contended that the liability in question is one in respect of which a charge is provided u/s 55(4)(b) of the Transfer of

Property Act and that therefore it cannot be scaled down, having regard to the provisions of Section 10(2)(u) of Madras Act IV of 1938. It seems

to us that this argument involves a certain confusion of ideas. There cannot be a liability except it be due to a person. When we speak of ''the same

liability'' we must necessarily mean the liability to the same person. It is true that the liability to the plaintiff under the promissory note was co-

extensive with the outstanding liability of the first defendant to his vendor, in respect of which it might be contended the vendor''s lien existed. But it

was not identical with that liability. The liability to A may be measured by the extent of the liability to B, but when the two liabilities are due to

different persons they are not, the same liability. It seems to follow that the liability to the plaintiff which the applicant seeks to scale down is not a

liability in respect of which a charge is provided u/s 55(4).

It has also been contended that Section 4(f) applies; but we are unable to see how, assuming that this liability had its origin in a trust, there has

been any breach of trust.

In the result therefore we are of the opinion that the decision of the lower Court is erroneous and that the third defendant is entitled to scale

down the decree on the basis that the promissory note is a renewal of a pre-existing liability which dates back to the original mortgage. The effect

of the payment of Rs. 250, made by the original mortgagor, on the questions arising u/s 8(2) and (3) will depend on the answer to the question

whether the original mortgagor was or was not an agriculturist. If he was an agriculturist this payment will have to be taken into account in

calculating the amount paid towards the debt.

The revision petition is allowed with costs. The application is remitted to the trial Court which will scale down the debt in the light of this

judgment.