Ellammal vs Pachayappa gounder (Died) and Others

Ramaswami, J.—These civil revision petition and civil miscellaneous second appeal arise from the decrees and judgments in O.P.No. 12 of 1951 on the file of the learned District Munsif of Ranipet and A. S. No. 14 of 1952 on the file of the learned District Judge of North Arcot at Vellore. The facts are: Pachiappa Goun. dan executed a usufructuary mortgage on 10th July 1941 in favour of Ellammal for Rs. 1000. On 24th August 1941 the mortgagor took a lease of these properties from the mortgagee. It is sufficient for our purpose to note that till the time of filing this petition the mortgagor had paid the mortgagee the sum in all of Rs. 73 (and on that foot the mortgagor came to Court and filed this application under S. 9 (a) seeking a declaration as to the amount which would be due from him to the mortgagee in order to redeem the properties The respondent, Ellammal, contended that under S. 4 (h) of the Agriculturists Relief Act she was an exempted person, and that this debt was not liable to be scaled down under Act IV of 1938. The respondent also disputed the correctness of the amount pleaded as paid by the petitioner.

On the matter coming before the learned District Munsif, the learned Pleader for the petitioner represented that he would be content if a proportionate deduction in the principal for a period of occupation of ten years was made, and that he would also deposit into Court the balance found due from him, so that he might take possession of the properties without further delay. The learned District Munsif found that the ex. emption pleaded by the respondent was not available to her, because the debt was of l941, and that the deduction asked for by the petitioner was certainly favourable to the mortgagee and could be accepted Therefore he held that the amount due from the petitioner to the respondent would be Rs 666-10-8, and that if that amount was deposited the petitioner would be entitled to the redemption sought for by him. There was an appeal there from before the learned District Judge under S 24-A and he held that no appeal has been provided for under that section and dismissed the appeal in limned. The present appeal is from that order of the learned District Judge an daubs quently a civil revision petition has also been filed by way of abundant caution from the order of the learned District Munsif.

In so far as the appeal is concerned, there are no merits, because no appeal has been provided under S. 25 A. The decree and judgment of the learned District Judge merit no interference at my hands and it is dismissed but without costs,

Turning to the revision petition two points of substance are urged before me. One is that under S. 4 (h) the mortgagee-woman is an exempted person and that the debt is not liable to be scaled down. But in advancing this argument, it is overlooked that S. 4excludes certain category of debts from the operation of the Act, that the debts so excluded are defined and put under various heads, that the section does not purport to deal with the qualification of a creditor when he seeks to enforce his debt, and that the wording of S, 4 (h) is clear and unambiguous and does not admit of any doubt in that it lays down two conditions, namely, (1) that on 1st October 1937. it should be a debt due to a woman and (2) that on that date she did not own any property of the value mentioned in that clause. If these conditions are complied with, the debt is excluded from the operation of the Act, and if these conditions which are not disjunctive but conjunctive, are not fulfilled, the debt is liable to be scaled down as provided for in the Act. There have been laid down in a Bench decision of this Court, Kamalabai Ammal v. Treetha shari, 68 L.W. 1027 , delivered by Subba Rao J.

5.This decision is not in any way opposed to a Bench decision of this Court in Bondalapati Kanyakaparameswaramma Vs. Kolli Butchi Kotayya and Another, . The facts in that case were: A promissory note for Rs. 3258 was executed in November 1937 in favour of a woman in renewal of an earlier promissory note of 1934 in her favour for Rs. 2534 which itself was in renewal of a still earlier promissory note of 1931 for Rs. 1983. She filed a suit on the note of 1937 and it was found that she owned no other property. In that case it was held that S. 4 (h) of Madras Act IV of 1938 applied to the case in spite of the fact that a fresh document was executed by the debtor in respect of the debt, after 1st October 1947. The learned judge has stated in the last paragraph of the judgment:

While conceding that a different view might be taken, we are of opinion that this clause must be read as exempting from the operation of the Act all that class of liabilities of an agriculturist which are included in Cl (h) regardless of whether after the 1st October 1937, a fresh document is or is not executed by the same debtor in respect of that debt.

in other words, the criteria for deciding whether S. 4 (h) applies or not are the two conditions which are set but, namely, (1) on 1st October 1937, it should be a debt due to a woman, and (2) on that date she did not own property of the value mentioned in that clause. The ratio decidendi of that case is that if a debt has originated before 1st October 1937, it did not matter whether the subsequent document was executed after 1st of October 1937 or not.

6.The other Bench decision, Varadaraja Perumal v. Palanimuthu Goundan (3), does not carry us any further, because there it was held that the bar in S. 10 (2) (a) of the Act applied to any liability in respect of which at its inception S. 55 (4) (b)of the Transfer of Property Act provided a charge and the bar was not affected by the assignment of this liability to a third party, and therefore, the provisions of S. 8could not be applied.

Therefore, the point taken in regard to the exemption of this appellant fails.

The next point for consideration is that under S. 9 (a) the learned District Munsif could give a declaration only and could not complete the process of redemption, and that for that purpose that party should have been relegated to a suit. This is undoubtedly the correct position as has been held in recent decisions of this Court, namely, that under S. 9 (a) only a declaration can be given adjudging the amount due from a mortgagor to mortgagee, and that if the mortgagor wants further reliefs in the shape of taking possession, etc., he must be relegated to the normal remedy of a suit : See Easoop v. Boohutty (4), wherein I have reviewed the previous case law on the subject. In this case the amount has (3) 53 L.W. 772. (4) A. A. O. 29 of 1953=(1956) 2 M.L.J. Notes of Recent Cases, p. 69. been adjudged and the mortgagor, I understand, has deposited the amount. It would be merely putting the parties to further expenditure and trouble if they are driven to a suit. It would only be mulcting the mortgage woman with further costs when she has already been deprived of the exemption pleaded by her, not to speak of the fact that the proceedings might be protracted and this litigation lengthened. I, therefore, decline to interfere with the order of the learned District Munsif, because his conclusion is equitable though wrong in procedure, and this Court has always refused to interfere with such orders in revision. The High Court will not usually interfere if the result of an irregularity of the lower Court has been to promote justice. G. P. Woke v. The Equitable Coal Co. (1) and Kuppuswami v. Alwar Chetti (2).

This civil revision petition is also dismissed but in the circumstances without costs.