Ghewarchand by Power of Attorney agent Nemichand vs Nagarajan and Others

S. Padmanabhan, J.—The short question that arises for consideration in this appeal, filed by the plaintiff in O.S. No. 217 of 1975 on the file

of the Court of the Subordinate Judge of Thanjavur is whether the defendants are entitled to the benefits of the Tamil Nadu Agriculturists Relief Act

(IV of 1938) as amended by Act VIII of 1973.

The relevant facts of the case are as follows : The first defendant for himself and on behalf of minor defendants 2 to 4 borrowed a sum Rs.

10,000 from the plaintiff dated 26th January, 1968 and executed Exhibit A-1 simple mortgage in favour of the plaintiff. The rate of interest

stipulated in the mortgage bond is 12% per annum. The suit is filed by the plaintiff on the foot of the mortgage for realisation of the principal and

interest from 26th June, 1978. Defendants 1 to 4 have transferred the hypotheca to the 5th defendant and therefore the 5th defendant has been

impleaded in the suit.

Defendants 1 to 4 remained ex parte. The 5th defendant filed a written statement. In it, she has admitted that she had purchased the equity of

redemption subject to the mortgage debt in favour of the plaintiff. She has stated that defendants 1 to 4 are entitled to the benefits of Tamil Nadu

Debt Relief Act (Tamil Nadu Act XXXVIII of 1972). Paragraph 3 of the written statement contains a further statement to the effect that Tamil

Nadu Act VIII of 1973 is also invoked. In view of this it is further pleaded that interest till 1st March, 1972 is not payable and subsequent interest

is payable; only at 9% per annum.

Issue No. 1 as raised by the trial Court is as follows: ""Whether the 5th defendant is entitled to the benefits of Act XXXVIII of 1972"". The trial

Court held that the 5th defendant is entitled to the benefit of Act XXXVIII of 1972, as amended by Act VIII of 1973. It is on this finding, the trial

Court held that the plaintiff will be entitled to claim interest on Rs. 10,000 at 9% per annum only from 1st March, 1972. The suit was accordingly

decreed for Rs. 10,000 with interest at 9% from 1st March, 1972.

The lower Court has committed an error in thinking that Tamil Nadu Act XXXVIII of 1972 has been amended by Tamil Nadu Act VIII of

1973. Tamil Nadu Act XXXVIII of 1972 is the Tamil Nadu Debt Relief Act, while Tamil Nadu Act IV of 1938 is Tamil Nadu Agriculturists Relief

Act. It is the Tamil Nadu Act IV of 1938 that has been amended by Tamil Nadu Act VIII of 1973.

The only question that was argued before me was whether the 5th defendant would be entitled to the benefits of Tamil Nadu Agriculturists Relief

Act (IV of 1938 as amended by Act VIII of 1973). In this context, it is necessary to recall that defendants 1 to 4 remained ex parte and did not

claim the benefits of Tamil Nadu Act IV of 1938 as amended by Act VIII of 1973. It is also important to notice that the hypotheca with which we

are concerned is a house property and not an agricultural land. The learned Counsel for the 5th defendant admitted that there is absolutely no

evidence in the case to show that defendants 1 to 4 the mortgagors are agriculturists.

The learned Counsel for the 5th defendant however urged that it will be sufficient if the 5th defendant who has purchased the property subject to

the mortgage debt is an agriculturist for the purpose of Tamil Nadu Act III of 1938. To show that the 5th defendant is an agriculturist he relied on

Exhibit B-1 kist receipt.

The 5th defendant has not pleaded in the written statement that she is an agriculturist and that she is therefore entitled to the benefits of Tamil

Nadu Act IV of 1938. In paragraph 3 of the written statement it is only mentioned that defendants 1 to 4 are entitled to the benefits of Madras

Debt Relief Act XXXVIII of 1972. In that context, it is also stated that Act VIII of 1973 is also invoked. Even assuming that the mention of Act

VIII of 1973 was wrongly made in the place of Act IV of 1938, even then the said Act has been invoked only on behalf of defendants 1 to 4.

There is no plea in the written statement that the 5th defendant is an agriculturist. Naturally therefore the plaintiff could not have effectively met the

case which is now sought to be made out. Further, apart from Exhibit B-1, no document has been filed to prove that the 5th defendant has a

saleable interest in agricultural land. Balasubrahmanyan, J., in C.M.A. No. 578 of 1974, a short report of which appear in Kunj Ammal v. M.A.

Khader 1978 T.L.N.J. 170, has stated that kist receipts by themselves cannot be regarded as evidence establishing a saleable interest of the

respondent in the lands for which he had paid kist. The learned Counsel for the 5th defendant contended that there has been no cross-examination

of D.W. 1, who is an agent of the 5th defendant in respect of Exhibit E-1 kist receipt. In the absence of any plea in the written statement that the

5th defendant is an agriculturist and in the absence of an issue whether the 5th defendant is an agriculturist or not and whether she is entitled to the

benefit of Tamil Nadu Act I.V of 1938, this contention of the learned Counsel for the 5th defendant has no substance. It has been repeatedly held

by this Court and the Supreme Court that in the absence of necessary pleadings no amount of evidence can be looked into. I am therefore satisfied

that it is not established that the 5th defendant is an agriculturist.

Even otherwise, so long as the mortgagors are admittedly not agriculturists and not entitled to the benefits of Tamil Nadu Act IV of 1938 as

amended by Tamil Nadu Act VIII of 1973, the 5th defendant will not be entitled to claim the benefit. Tamil Nadu Act IV of 1938 as amended by

Tamil Nadu Act VIII of 1973 is intended to apply to agriculturists who had a saleable interest in agricultural land at the time of incurring the debt. It

is not enough if it is shown that the subsequent purchaser of the hypotheca is alone an agriculturist. If it is held that even though the person who

incurred the debt was not an agriculturist, the subsequent purchaser of the hypotheca will be entitled to have the debts scaled down in terms of the

Act provided he is an agriculturist, it will lead to the very purpose of the Act being defeated. It will be open to non-agriculturist debtors either

assigning the mortgage right or conveying the title to the hypotheca to an agriculturist-transferee, who will then be in a position to take advantage of

the benefits of the Act. Certainly that could not have been the intention of the Legislature. For the purpose of invoking the provisions of the Act, it

is necessary to show that the person who incurred the debt was an agriculturist on the date of the incurring the debt and also he or his assignee is

an agriculturist on the date of the institution of the proceedings. This position has been made clear by the Full Bench in Papathi Ammal v. Nallu

Pillai (1963) 2 M.L.J.594 : 77 L.W. 14 : ILR (1964) Mad 536 : A.I.R.1964 Mad. 173, though the identical question did not fall for consideration

by the Full Bench. It has been observed by the Full Bench as follows:

The word ''due'' as used in the Act has been the subject of judicial interpretation in Chellammal v. Abdul Gaffoor Sahib (1961) 2 M.L.J. 222 : ILR

(1961) Mad. 1061 : 74 L.W. 556 : AIR 1962 Mad. 1'' where one of us (Srinivasan, J.), delivering the judgment on behalf of the Full Bench,

observed that the expression has undoubtedly a sense of something to be performed in , future as distinct from something that has happened in the

past. Therefore, a debt by its very definition under the Act implies that at the time when it is due it must be due from the agriculturist. It is therefore

clear from the terms of the section that in order to entitle a debtor to claim relief u/s 13, he must be an agriculturist as defined in the Act on two

crucial dates: :, (i) on the date of the loan; and (ii) on the date of recovery thereof through the process of Court.

Natarajan, J., has taken the same view with respect to Section 7 of Tamil Nadu Act IV of 1938 in Thulasi Ammal v. Thasu R. Sami Iyer ILR

(1976) Mad. 254 : (1977) 90 1 W. 413. That was a case where the mortgage debt was sought to be scaled down u/s 7 of the Act. The question

which the learned Judge had to consider was whether even in a case where the debt had to be scaled down u/s 7 of the Act it should be proved

that even on the date of incurring of the debt the person who incurred the debt was an agriculturist. In that particular case, on the date of the

mortgage the mortgagor was not an agriculturist. However, subsequent to the execution of the mortgage debt, the mortgagor acquired an interest in

agricultural land by obtaining an othi deed. A distinction was sought to be raised on the wording of Sections 7 and 13 and on that basis it was

contended that the ratio of the Full Bench in Pappathi Ammal alias Nallammal Vs. Nallu Pillai, , would not be applicable. The learned Judge after

referring to the Full Bench decision in Pappathi Ammal alias Nallammal Vs. Nallu Pillai, , and the decision in S.P.L.P. Narayanan Chettiar Vs.

M.A.R. Annamalai Chettiar, , observed as follows:

Applying this interpretation inversely; it should logically follow that the debt must have been due and payable by an agriculturist, not only at the time

the demand was made, but even at the time the liability was incurred. In such circumstances, I am not persuaded to accept the argument of the

appellant''s counsel and hold that the conditions laid down in Papathi Ammal v. Nallu Pillai (1963) 2 M L.J. 594 : 77 L.W. 14 : ILR (1964) Mad

536, for a person to invoke the benefits of the Act would not apply to the facts of the case on hand. If the contention of the appellants is to be

accepted, then it would lead to ludicrous results. Even a non-agriculturist can, subsequent to incurring the debt, acquire interest in a small piece of

agricultural land and then claim the benefits of exemption under the Act. Surely, the intention of the Legislature was not to confer the benefits of the

Act on such a class of persons. The Act was intended to apply only to genuine agriculturists who had interest in agricultural lands at the time of

incurring the liability and continued to be agriculturists all through till proceedings were instituted for recovery of the debt.

I have followed this decision in A.S. No. 262 of 1975.

In view of the fact that the mortgagors have not been proved to be agriculturists as on the date when the debt was incurred, the plea of the 5th

defendant that she is entitled to the benefits of Tamil Nadu Act IV of 1938 as amended by Tamil Nadu Act VIII of 1973 has only to be rejected.

It was not contended before me that the 5th defendant is entitled to the benefits of the Tamil Nadu Act XXXVIII of 1972. Even the written

statement does not contain a plea that the 5th defendant is entitled to the benefits of the Tamil Nadu Act XXXVIII of 1972. Though an issue has

been raised on the applicability of the Tamil Nadu Act XXXVIII of 1972 it is only in respect of the plea that defendants 1 to 4 are entitled to the

benefits of the Tamil Nadu Act XXXVIII of 1972. Defendants 1 to 4 have chosen to remain ex parte and have not claimed the benefits of the

Tamil Nadu Act XXXVIII of 1972 themselves. In the circumstances, the judgment and decree of the Court below are set aside, the appeal is

allowed with costs and the suit is decreed in terms of the plaint. Time for redemption 3 months.