Kaliyammal and Others vs Raghurama Gounder

K.M. Natarajan, J.—The questions in all these matters referred to this Full Bench are : --

(i) Whether the definition of ''debtor'' in Tamil Nadu Act 38 of 1972,50 of 1982 and 13 of 1980 would include his heirs, legal representatives and

assigns? and (ii) are not the heirs, legal representatives and assigns of a debtor governed by Mohammedan law entitled to claim the benefits under

the Acts.

The facts which lead to this Reference in all these cases can be briefly, stated as follows : We find from the order of reference in all these cases

that a Division Bench of this Court in Komalambal v. Neelavaihi Ammal ((987) 100 MLW 1059 held that the legal representatives of a deceased

judgment-debtor are not entitled to claim the benefits of the TamiI Nadu Act 13 of 1980. It was contended that in the said Division Bench case,

except three Judgments of learned single Judges in Lakshmi Ammal and Others Vs. Sundaramurthi Chetti, , Sara Nisha and Others Vs. S. Raju

and Another, and Pattammal v. Ponnusami Udayar (1986) 99 MLW 627 earlier Division Bench decisions have not been referred to. There are

other decisions of learned Judges of this Court rendered under the Tamil Nadu Act 4 of 1938, which is a comparable legislation. One is in

Perianna Goundan Vs. Sellappa Goundan and Others, , which was approved by the Supreme Court in Cheruvu Nageswaraswami Vs. Rajah

Vadrevu Viswasundara Rao and Others, and another in Kona Hasan Fathima Bivi (deceased) and Others Vs. Muhammad Muhaideen Nachiar

and Others, wherein it was held that the legal representatives and assigns of indebted agriculturist debtor are entitled to claim the benefits of the

Tamil Nadu Agriculturists Debt Relief Act, 4 of 1938. Further, the definitions of ""Debt"", ""Debtor"" ''Creditor'' are in pari materia with the later Acts

38 of 1972 and 13 of 1980 and 50 of 1982, In all these cases the legal representatives of the deceased debtor claim the benefits of the Act either

during the pendency of trial or at the stage of execution. Let us consider the first question in the light of the provisions of various Acts and the

conflicting views expressed by this court, other High Courts and the Supreme Court.

A Division Bench in Kamalambal v. Neelavathiammal (1987) 100 MLW 1059 agreed with the view expressed by Shanmukham J. in Sara

Nisha and Others Vs. S. Raju and Another, and V. Ramaswami J. in Pattammal v. Ponnusami Udayar (1986) 99 MLW 627 while disagreeing

with the view expressed by one of us, namely, Nainar Sundaram J. in Lakshmi Ammal and Others Vs. Sundaramurthi Chetti, , and held that the

representatives of the deceased judgment-debtor are not entitled to the benefits of Tamil Nadu Act 13 of 1980. The main reason alleged in the

said decision is that while defining the word ''creditor'' u/s 3, Clause (b), the words ''includes the heir of such person are mentioned; but, on the

other hand, in the definition of debtor'' there is no such inclusion of the legal representatives of the debtor. It only simply states that ''a person from

whom any debt is due''. It was also held that a legal representative cannot be made personally liable for a decree against a deceased judgment-

debtor and that only the properties of the deceased judgment-debtor in the hands of the legal representative are answerable to the decree debt and

as such a legal representative cannot be said to be a person from whom a debt is due.

According to the learned counsel appearing for the debtor petitioner Mr. R. S. Venkatachari and Mr. K.M. Santhanagopalan, Legal

representative'' is not defined under any of the Debt Relief Acts and that it is only in Section 2(1), C. P. Code, ''Legal representative'' is defined.

Section 2(11) reads as follows : --

Legal representative"" means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the

estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the

party so suing or sued."" Section 50, C. P. Code provides-

Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the court which passed it to

execute the same against the legal representative of the deceased.

No doubt, under Sub-clause (2) of Section 50 it is provided that the legal representative of the judgment-debtor shall be liable only to the extent of

the property of the deceased which has come to his hands and has not been duly disposed of. ''Judgment-debtor'' has been defined u/s 2(10),

C.P.C. and it reads as follows-

Judgment-debtor"" means any person against whom a decree has been passed or an order capable of execution has been made.

To appreciate the rival contentions, it is necessary and convenient to extract the relevant definitions of ""debt"", ''debtor'' and ''creditor with

respect to the various Debt relief Acts:--

Act 4 of 1938 Creditor S. 3(v) Act 38 of 1972 Creditor S. 2(1) Act 13 of l980 and Act 50 of

1982. Creditor S.3(b)

''Creditor'' includes his heirs, legal ''Creditor'' includes his heirs, legal ''Creditor'' means a person

representatives ami assigns. representatives and assigns. from or in respect of whom the

debtor has borrowed or

incurred a debt and includes the

heir of such person.

Agriculturists. 3(ii) ''Agriculturist'' means a Debtor S. 2(3) ''debtor'' means Debtor S. 3(d) ''debtor'' means

person who (a) has a saleable interest in any any person from whom any debt any person from whom any

agricultural land in the State of Tamil Nadu, is due; debt is due and whose annual

which is assessed by the State Government to income does not exceed four

land revenue (which shall be deemed to include thousand and eight hundred

peshkush and quit rent) or which is held free of rupees

tax under a grant made confirmed or

recognised by Government; or

(b) holds an interest in such land undera provided that, a person shall not Provided that a person shall not

landholder under the Tamil Nadu Estates Land be deemed to be a debtor if........"" be deemed to be a debtor if he

Act, 1908 as tenant, ryot or under tenure or any member of his family

holder;

(c) holds an interest in such land, recognised in

the Mala-bar Tenancy Act, 1929; or

(d) holds a lease of such land from any person

specified in sub-clause (a), (b) or (c) or is a

sub-lessee of such land;

Provided, that a person shall not be deemed to

be an agriculturist........

Debts S. 3(iii) ''Debt'' means any liability in cash Debt S. 2(2) ''Debt'' means any Debt S.3(c) ''Debt'' means any

or kind, whether secured or unsecured, due liability in cash or kind, whether liability in cash or in kind,

from an agriculturist whether payable under a secured or unsecured, due from a whether secured or unsecured

decree- or order of a civil court or revenue debtor whether payable under a and whether decreed or not,

court or otherwise, but does not include rent as decree or order of a civil or but does not include arrears of

defined in clause (iv) or Karnartham as defined revenue court or otherwise but taxes due to the Central

in S. 3 of the Malabar Tenancy Act 1929, (Tamil does not include rent as defined, Government or a State

Nadu Act XIV of 1930) in clause (9); clause (9); Government or a local

authority"".

The learned counsel appearing for the debtor relied on two decisions of Division Benches of this Court. The earliest decision as reported in

Perianna Goundan Vs. Sellappa Goundan and Others, . It arose out of a suit for recovery of money due under a mortgage deed executed by the

first defendant in favour of the plaintiff. In execution of the money decree obtained against the mortgagor, the 8th defendant purchased the equity of

redemption in a portion of the hypothecs, and he in turn sold the same to the 9th defendant. The plaintiff sought to bring to sale the properties

purchased by the 9th defendant as part of the mortgage security. The 9th defendant was an agriculturist within the meaning of Madras Act IV of

1938. The question arose, whether the liability of the 9th defendant as purchaser of the equity of redemption was a debt within the meaning of

Section 3(ii) of the Act. It was contended that the definition of ''debt'' should be understood as limited to cases where a person is personally liable

and not to a person who is not liable on account of possession of the property as a purchaser of equity of redemption. But the learned Judges

repelling the said contention held that there are no words in the definition clause justifying any such restriction; the clause speaks of ''any liability''

and the word ''due'' does not necessarily imply that it must be recovered by imprisonment of the debtor and that the legislature could not have

intended to limit the relief under the Act to cases where a person was personally liable, and that its avowed purpose was to enable agriculturists to

retain their property and prevent such property passing into the hands of creditors or execution purchasers. Another contention which as raised

before the learned Judges in that case is that only the person who actually contracts the debt that will be entitled to claim relief under the Act and

not his heir-at-law or legal representative, as the latter will ordinarily be under no personal liability. It was also contended in that case that while

Clause (v) which defines ''creditor'' takes care to include his heirs, legal representatives and assigns, there was no corresponding definition in the

case of a ''debtor''. The learned Judges repelled the contention in the following words-

The omission is obviously due to fact that the reference to liability in Clause (iii) is wide enough to cover every person who is in any manner liable,

either because he is personally liable or because he is liable on account of possession of property. There was no necessity to refer to any heir, legal

representative or assign except in cases in which such person was liable within the meaning of Clause (iii).

Thus, it is clear from the above decision the right to claim relief under the Madras Agricultuists Relief Act IV of 1938 was not confined to the

person who actually contracted the debt, but was available equally to his legal representatives and assigns as they are liable on account of

possession of the property and accordingly the legal representatives of the purchaser in a portion of the property is entitled to scale down under the

provisions of the Act. This decision was approved by the Supreme Court in Cheruvu Nageswaraswami Vs. Rajah Vadrevu Viswasundara Rao

and Others, . In that case, the question before the Supreme Court was whether a purchaser of equity of redemption could claim the privilege under

the Tamil Nadu Act IV of 1938. The Supreme Court expressed its view at page 256 (of Mad LJ): (at P. 372 of AIR) as follows-

It is not necessary mat the applicant for relief himself should be liable for the debt on the date that the Act came into force. The right to claim relief

as is well settled by decisions vide Perianna Goundan Vs. Sellappa Goundan and Others, of the Madras High Court, is not confined to the person

who originally contracted the debt, but is available to his legal representative and assigns as well; nor is it necessary that the applicant should be

personally liable for the debt. The liability of a purchaser of the equity of redemption to pay the mortgage debt undoubtedly arises on the date of his

purchase; but the debt itself which has its origin in the mortgage bond did exist from before his purchase, and if it was payable by an agriculturist at

the relevant date, the purchaser could certainly claim the privileges of the Act if he himself was an agriculturist at the date of his application.

It is clear from the above decisions that the benefit conferred by Act IV of 1938 will be available not only to the original debtor but also to his legal

representatives and assigns and that it is not necessary that the legal representative and assign should be personally liable for the debt.

In a subsequent decision of a Division Bench of this Court, dealing with the provisions of Act IV of 1938, namely, in Kona Hasan Fathima Bivi

(deceased) and Others Vs. Muhammad Muhaideen Nachiar and Others, the learned Judges affirmed the view taken in the decision in Perianna

Goundan Vs. Sellappa Goundan and Others, and held-

The avowed purpose of the Act was to enable agriculturists to retain their property and prevent such property passing into the hands of creditors

or execution purchasers and it would largely defeat such purpose if the benefit of the Act were to be denied to the large class of persons who

come under liability by devolution and who are themselves agriculturists as defined by the Act we are therefore of opinion that the petitioners are

entitled to claim relief under the Act as agriculturists although their father whose liability they have inherited was himself not an agriculturist.

The facts of that case show that the debtor against whom the decree was passed was not an agriculturist within the meaning of the Madras

Agriculturists Relief Act and his heirs who were brought on record as his legal representatives claimed relief under the Act as agriculturists and their

claim was repelled.

Yet another decision of the Supreme Court in Kidarnath v. Mangatrai (1970) 2 SCJ 348 was relied on in support of this proposition.

In that case, the question which arose for consideration is whether it is open to the legal ''representatives of a debtor to invoke the help of Section

30 of the Punjab Relief of Indebtedness Act in a suit for possession by redemption. Their Lordships of the Supreme Court held as follows-

Section 7 of the Punjab Relief of Indebtedness Act 1934, defines a ''debt'' as inclusive of all liabilities of a debtor in cash or in kind, whether

secured or unsecured, payable under a decree or order of a civil court or otherwise, whether mature or not..... The definition of the expression

''debt'' therefore includes all liabilities of a debtor in cash or in kind, secured or unsecured, the liability of a mortgagor to pay the money due under

the mortgage and to pay interest accruing due is clearly a debt, even if it be assumed that the mortgagee had had no right to enforce the mortgage

by sale of the property and had a right only to foreclose the mortgages. Under the terms of the mortgage deeds, if the mortgagor pays the amount

due, the mortgagee is bound to release the mortgaged property. It cannot be said that under the three mortgages there was no debt due by the

mortgagor, Nor do we agree with the counsel for the mortgagee that the benefit of Section 30 of the Punjab Relief of Indebtedness Act is available

only to the original mortgagor and not to his representatives. Section 30 of the Punjab Relief of Indebtedness Act by the first sub-section provides-

''In any suit brought after the commencement of this Act in respect of debt as defined in Section 7, advanced before the commencement of this Act

no Court shall pass or execute a decree or give effect to an award in respect of such debt for a larger sum than twice the amount of the sum found

by the court to have been actually advanced, less any amount already received by a creditor in excess of the amount due to him under Clause (a)

of Sub-section (2) of Section 3 of the Usurious Loans Act 1918"".

A suit to redeem property on payment of the amount due on the mortgage is a suit in respect of a debt; and the Court is by Section 30 of the Act

debarred from passing a decree for a sum larger than twice the amount of the sum found by the court to have been actually advanced. The section

imposes a restriction, in certain conditions, upon the power of the Court. It is the nature of the suit which decides the court''s jurisdiction; the

section makes no reference to the status of the party claiming relief except in so far as the definition of debt involves such references. On the plain

words of the section there is no warrant for the view that the jurisdiction of the Court is attracted only when the person who incurred the obligation

to pay the debt personally is a party to the suit and not when his legal representative is a party. An obligation to ; pay a debt is not extinguished on

the death of the debtor. The obligation is enforceable against the estate of the debtor in the hands of his legal representatives; and when it is so

sought to be enforced, in the absence of an express provision or clear intendment to the contrary, the representatives may set up the defence which

the original debtor could if he had been sued have set up. The representatives of the mortgagor were therefore rightly held entitled to the benefits of

Section. 30 of the Punjab Relief of Indebtedness Act 1934.

In the said decision also, their Lordships of the Supreme Court expressed the view that an obligation to pay a debt is not extinguished on the death

of the debtor and further the obligation is enforceable against the estate of the debtor in the hands of his legal representatives and when it is sought

to be enforced, the representatives may set up the defence which the original de''tor could if he had been sued have set up and that it is not

necessary that the person who incurred the obligation to pay the debt personally is a party to the suit. It is pertinent to note that the definitton of

''debt'' in the above quoted case is in part materia with the definition of ''debt'' in all those Tamil Nadu Debt Relief Acts.

A single Judge of this Court in Rajammal v. Janakiammal (1977) MLJ 264 relying on the two decisions of Division Benches of this Court in

Perianna Goundan Vs. Sellappa Goundan and Others, and Palani Goundan Vs. Peria Goundan, which deal with Act IV of 1938 and also relying

on"" the decision of the Supreme Court in Cheruvu Nageswaraswami Vs. Rajah Vadrevu Viswasundara Rao and Others, held-

The legal representatives representing the estate of a deceased judgment-debtor though not proceeded against personally can claim the benefit of

the Tamil Nadu Act IV of 1938 if they are agriculturists. The benefit conferred by the Act will be available not only to the original debtor but also

to his legal representatives and assigns and it is not necessary that the legal representatives and assigns shall be personally liable for the debt.

The same view was taken by one of us (Nainar Sundaram J.) in Lakshmi Ammal and Others Vs. Sundaramurthi Chetti, , where a similar question

arose under the Tamil Nadu Debt Relief Act 13 of 1980 and it was held-

There is no scope for limiting the applicability of the provisions of the Act only to the person, who was the original debtor. If the liability could be

fastened on the legal representatives of the original debtor, they could definitely come within the ambit of the Act.

The above view was affirmed by other High Courts also, namely in Md. Abdul Aziz Vs. Golla Bhumavva and Others, , wherein it was held-

The word''debtor'' in Section 3(j) of the Andhra Pradesh Agriculturists Indebtedness (Relief) Act (7 of 1977) includes legal representatives and

heirs of original debtor.

In that case, the learned Judges affirmed the view of the Division Bench of this court in Perianna Goundan v. Sellappa Gounder AIR 1939 Mad

186 which was affirmed by the Supreme Court in Cheruvu Nageswaraswami Vs. Rajah Vadrevu Viswasundara Rao and Others, .

On the other hand, the learned counsel appearing for the creditor relied on the decision reported in N.M.P.L. Palaniappa Chettiar Estate Vs.

V.N.S. Ramaswami Naidu and Others, and submitted that an estate of a deceased cannot claim the benefit under the Debt Relief Act. That was a

case which mainly deals with the case of an executor who is sought to be made liable for the decree debt as representing the estate of the

deceased and therefore it is clearly distinguishable. The said decision gives two reasons as to why the executor in that case cannot claim the

benefits of Act IV of 1938. One is that the decree is not sought to be executed against the creditor (debtor?) personally and the decree is only

against the estate in the hands of the executor and there is no provision in the Act under which such an impersonal entity as an estate can claim the

relief. The other reason given is that the estate being a charitable trust has been specifically and expressly excluded by the terms of Section 3(1) of

the Act. As such, in the circumstances, of this case, the said decision is not helpful to support the contention of the creditor.

Now, we shall consider whether the provisions of Act IV of 1938 particularly, the definitions of ''debtor'' ''debt'' ''creditor'' ''mortgagee,

''person'' are in pari materia with the prpvisions of the Tamil Nadu Debt Relief Acts 38 of 1972. 13 of 1980 and Act 50 of 1982. The preamble of

Act IV of 1938, reads as follows-

An Act to provide for the relief of indebted agriculturists in the State of Tamil Nadu"".

While the preamble of Act 38 of 1972 reads as follows-

An Act to provide for the relief of certain indebted persons in the State of Tamil Nadu.

and under Act l3 of 1980 and under Act 50 of 1982, the preamble reads as follows-

An Act to provide for the relief of certain indebted persons in the State of Tamil Nadu.

Thus, it is clear from the preambles in the four Acts quoted above, Act IV of 1938 is intended to provide for the relief of indebted agriculturists,

while the other three Acts are intended to provide for the relief of certain indebted persons, Act 38 of 1972 deals with the case of non-

agriculturists debtor while Act 13 of 1980 and Act 50 of 1982 deal with the case of agriculturists as well as non-agricultural persons. There is no

difference between in the definitions of the words ''creditor'' ''debtor'', ''debt'' and ''person''. But, only in Act IV of 1938, instead of debtor'' the

word ''agriculturist'' has been defined. It is clear from all these Acts, ''debtor'' means any person from whom any debt is due. ''Debt'' has been

defined as any liability in cash or kind, whether secured or unsecured. In the case of Act 38 of 1972, 13 of 1980 and 50 of 1982, while defining

the word ''debt'' it is stated as any liability due from a debtor whether payable under a decree or order of a civil or revenue Court or otherwise,

and in the case of Act IV of 1938, it is mentioned as due from an agriculturist whether payable under a decree of order of a civil or revenue court

or otherwise. In other words, instead of the word ''debtor'' the word ''agriculturist'' is used under the definition of the word ''debtor'' in Act IV of

1938. The word ""person"" has also been defined in the same way in all the three Acts, as an individual and includes an undivided Hindu family. The

meaning of the word ''due'' has been given in Stroud''s Judicial Dictionary of Words and Phrases 4th Edn. Volume 2 as follows---

A debt is due when it is payable (per James V.C. Re European Life Assurance L, R.9 Eq. 122. In the same passage it is stated that Darling J.

said-- ''I think, in a legal sense, that money only can be said to be due, which may be recovered by action. That which a man is under no legal

obligation to repay, for whatever reason, is in my opinion no longer money due.

Thus, it is clear from this that money can be said to be due only when it may be recovered by action. This supports the view that when a creditor

sought to proceed against the legal representatives for the recovery of decree debt payable by the original debtor from out of the estate in the

hands of the legal representatives, the debt is due from them. It is worthwhile to consider the definition of the word ''debt'' which deals with any

liability in cash or kind, whether secured or unsecured due from a debtor whether payable under decree or order of a civil or revenue Court or

otherwise. In an earlier Division Bench case of this court in Palani Goundan Vs. Peria Goundan, (rendered by Wadsworth and Patanjali Sastri JJ.),

the purchaser of the equity of redemption at a sale in execution of a money decree against the mortgagors claimed to have the mortgage decree

amended u/s 19 of the Act IV of 1938. It was contended that the application for scaling down the mortgage decree is not maintainable as a

purchaser of equity of redemption will not come under the definition of judgment-debtor'' within the meaning of Section 19 of Act IV of 1938.

Dealing with this contention, the Division Bench expressed the, view that the definition of debt in Section 3(iii) includes debts payable under a

decree or order of a court, that the liability of the petitioner as the purchaser of the properties subject to the mortgage decree is a ''debt'' within the

meaning of the Act and that the procedure provided in a statute for enforcement of the substantive rights conferred thereby should be construed as

far as possible, so as to give effect to and not to nullify the rights. The Division Bench also expressed that there is no obvious reason why the term

''judgment-debtor'' should not be understood as including a person whose liability is a debt as defined by the Act more especially as that definition

includes a judgment debt. In view of the ratio in the said case, even the legal representatives of the estate of the"" deceased judgment-debtor are

entitled to the benefits of the said Act in view of the meaning of the word ''debt'' in all these Acts.

In this connection, the learned counsel appearing for the debtor drew the attention of this Court to Article 39(b) and (c) under Part IV

Directive Principles of State Policy of the Constitution of India, and submitted that the policy of the State should be that poor people should not be

oppressed and the there should not be any concentration of wealth in the case of money-lenders. Article 39 reads as follows-

The State shall, in particular, direct its policy towards securing

(a).................

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; and

(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment"".

The learned counsel also invited the attention of this Court to the decision reported in Lalappa Lingappa and Others Vs. Laxmi Vishnu Textile Mills

Ltd., . In that case, in para 13 (page 856) it was observed -

In construing a social welfare legislation, the court should adopt a beneficent rule of construction; if a section is capable of two constructions, that

construction should be preferred which fulfils the policy of the Act, and is more beneficial to the persons in whose interest the Act has been

passed."".

In State Bank of Travancore Vs. Mohammed Mohammed Khan, , it was observed-

The plain language of the clause, if interpreted so plainly, will frustrate rather than further the object of the Act, Relief to agricultural debtor, who

have suffered the oppression of private money-lenders has to be the guiding star which must illumine and inform the interpretation of the beneficent

provisions of the Act, When clause (1) speaks of a debt due before the commencement of the Act'' to a banking company, it does undoubtedly

mean what it says, namely, that the debt must have been due to a banking company before the commencement of the Act. But it means something

more; that the debt must also be due to a banking company at the commencement of the Act. We quite see that we are reading into the clause the

word ''at'' which is not there because, whereas it speaks of a debt due ''before'' commencement of the Act, we are reading the clause as retating to

a debt which was due ''at'' and ''before'' the commencement of the Act to any banking company. We would have normally hesitated to fashion the

clause by so restructuring it but we see no escape from that course, since that is the only rational manner by which we can give meaning and

content to it, so as to further the object of the Act.

As rightly contended by learned counsel Mr. Santhangopalan under the general law, namely, Contract Act, a debtor is liable to pay the entire debt.

But in view of the special Aci, namely. Debt Relief Acts enacted by the State, if the debtor satisfies the definition of the word ''debtor'' the entire

debt is liable to be wiped out. It is also submitted by the learned counsel that the special enactments put an end to the general law, the beneficial

clause being extended not only to the judgment-debtor but also to his successors and legal representatives. When the object and the preamble are

taken into consideration and a liberal construction is given, even though a plain reading of the meaning does not include the legal representatives of

the debtor, the court can read the meaning of the word ''debtor'' as it includes the legal representatives, assigns and successors being their

beneficiaries in view of the ratio laid down in the decisions of the Supreme Court and the Division Benches we find much force in this contention.

On a careful analysis of the relevant provisions of the four Acts, which have been extracted above, we find that not only (he object but also the

definition of the various terms which include ''creditor'' Mortgagor'' ''debt'' are in no way different from one another. Only in respect of the word

''debtor'' which has been defined in Act 38 of 1972 and Act l3 of 1980 and Act 50 of l982, we find the word ''agriculturist'' used in Act IV of

1938. ''Agricullurist means a person who has a saleable interest in any agricultural land etc. But, the word ''person"" has been defined in the same

way as given in (he other three enactments. Thus, we are of the view that the reasoning in Perianna Goundan Vs. Sellappa Goundan and Others,

which wasapproved by the Supreme Court in Cheruvu Nageswaraswami Vs. Rajah Vadrevu Viswasundara Rao and Others, that the provisions

of the Acts enable the legal representatives and assigns of the debtor loclaim the benefits of Act 38 of 1972 and 13 of 1980 as the provisions of

these Acts are in pari materia with Act IV of 1938, is correct. As already observed, in Perianna Goundan Vs. Sellappa Goundan and Others, case

it was pointed out that the omission to include the legal representative and assigns in defining the word ''debtor'' is obviously due to the fact that the

reference to liability is wide enough to cover every person who is in any manner liable either because he is personally liable or because he is liable

on account of possession of the properly. As stated, the said decision has been affirmed by the Supreme Court in Cheruvu Nageswaraswami Vs.

Rajah Vadrevu Viswasundara Rao and Others, quoted above. The subsequent Division Bench decision reported in Kona Hasan Fathima Bivi

(deceased) and Others Vs. Muhammad Muhaideen Nachiar and Others, has gone to the extent of holding that even though the person who

originally incurred the debt was a non-agriculturist, the legal representatives of the judgment-debtor will be entitled to the benefits of the Acton the

crucial date relevant for the purpose of the applicability of the Act if he was a debtor. The Division Bench of this court in Komalambal v. Nelavathi

(1987) 100 MLW 1059 did not take into consideration the decisions of the Supreme Court which approved the earlier decisions of the Division

Bench of this court, while rendering the judgment that the legal representatives are not entitled to the benefit of the Act on the ground that they are

not personally-liable, but their liability is only to the extent of the properties in their hands. We do not find any merit in the contention of the learned

counsel appearing for the creditor that the provisions of Act IV of 1938 are not in pari materia with the provisions of the Tamil Nadu Act 38 of

1972 or Tamil Nadu Act 13 of 1980 and Act 50 of 1982:

The learned counsel Mr. Somasundaram relying on the decision of the Supreme Court in Pandit Ram Narain Vs. The State of Uttar Pradesh

and Others, , submitted that it is no sound principle of construction jointerpret expressions used in one Act with reference to their use in another

Act and that the meaning of words and expressions used in an Act must lake their colour from the context in which they appear. That proposition

of law is not applicable in this case, as in the above quoted case, their Lordships came to the conclusion that by reason of Sub- section (4) of

Section 15-A of the U. P. Town Areas Act 1914, it cannot be held that residence within the Town Area is a necessary condition for the imposition

of a tax in all the clauses of Sub-section (1) of Section 14 of the Act. The second decision which was relied on in the Supreme Court was under

the U.P. District Boards Act, (Local Act X of 1922) and the said decision was held to be not helpful to the case of the appellant and it was laid

down that if the said Act shows anything, it shows that it was open to the District Board to impose a circumstance and properly tax on any person

residing or carrying on business in the rural area. The yet another decision cited before the Supreme Court was only under the Professions Tax

Limitation Act and the said decision also was not at all helpful, as in that case, it was observed referring to Section 128, U.P. Municipalities Act,

1916, where ''taxes on circumstances and property'' appear as a need distinct from the ''taxes on trades, callings and vocations and employments''

and the argument was that the taxes being under different heads should be treated as being entirely different one from other. But their Lordships of

the Supreme Court held that in view of the words and expressions used in Section 14 of the U. P. Town Areas Act, they cannot accept the

argument that Clause (f) should be read as entirely independent of and unconnected with the other clauses and a different condition, namely,

residence within the Town Area, must be read as a necessary part of Clause (f). To do so will be to read in Clause (f) words which do not occur

there. As already pointed out, in the instant case, as The provisions of the earlier enactment. Act IV of 1938, are in pari maleria with the

subsequent legislation, there is no impediment in relying on the above Division Bench decisions in holding that the legal representatives of the debtor

are also entitled lo the benefits of the Debt Relief Act, especially in view of the pronouncement by the Supreme Court on this point.

The other decision relied on by the learned counsel in Hari Khemu Gawali Vs. The Deputy Commissioner of Police, Bombay and Another, , is

also not helpful, as in the said ease also it was held (at p 568 of AIR)-

It has been repeatedly said by this court that it is not safe to pronounce on the provisions of one Act with reference to decisions dealing with other

Acts which may not be in pari materia.

The contention of the learned counsel for the respondents, Mr. S.S. Mathivanan, that in view of introduction of Rule 4-A to Order 22, C.P.Code,

by Amending Act 104 of 1976, legal representatives are only representing the estate of the deceased and that the estate alone is made liable and

as such the legal representatives cannot claim the benefit under the Debt Relief Act cannot be countenanced for the reasons already stated above

while considering the applicability of the two Division Bench decisions of this Court and the two decisions of the Supreme Court quoted above and

the other reasons mentioned above. We only affirm the view of the Supreme Court in Cheruvu Nageswaraswami Vs. Rajah Vadrevu

Viswasundara Rao and Others, and in Kidarnath''s case, (1970) 2 SCJ 348, that the legal representatives representing the estate of a deceased

judgment-debtor though not proceeded against personally can claim the benefits of the Tamil Nadu Act IV of 1938, if they are agriculturists and

the benefit conferred by the Act will be available not only to the original debtor but also to his legal representatives and assigns and that it is equally

applicable to the legal representatives: of the debtor under these Debt Relief Acts when their creditors sought to proceed against the estate of the

deceased debtor in the hands of the legal representatives, if they are found to be debtors entitled to the benefits under the respective Acts. Hence,

we answer the first question that the definition of debtor'' in Act 38 of 1972and in Act 13 of 1982 and Act 50 of 1982 would include the heirs,

legal representatives and assigns of the petitioner debtor in all these cases.

Now coming to the second question, the learned counsel for the respondent relied on the decision in Sara Nisha and Others Vs. S. Raju and

Another, , which has been affirmed by a Division Bench in Komalambal v. Neelavathi Ammal (1987) 100 MLW 1059 wherein it was held that the

legal representatives of a debtor or a mortgagor is not entitled to the benefits of Tamil Nadu Debt Relief Act (38 of 1972) and the reasoning is that

the said Act is intended to provide relief to certain indebted persons in the State of Tamil Nadu. Further, the heirs of the deceased mortgagor were

Mohammadans and were governed by the Mohammedan Law and what they inherited was the residue of the estate of the deceased, that is, his

whole estate less his liability and that the liability was therefore that of the deceased but not that of his heirs. It was further held that the heirs, in the

above circumstances, could hardly be called debtors, for, they were bound to discharge the debt of the deceased, not personally, but out of the

respective shares in their respective hands. The proposition of law that under the Mohammadan law, the heirs of the deceased inherit the whole

estate less his liability and that they are not personally liable for the deceased is not in dispute. In view of our finding on question No. 1, that the

legal representatives, heirs, and assigns of the debtor under the Tamil Nadu Debt Relief Act are entitled to the benefits of the said Act, there is

absolutely no difficulty in extending the said benefit to the case of the Mohammadans also take the properties of a the deceased less his debt. The

only distinguishable fact between the Hindu and the Muhammadan is that in the case of Hindu, the heirs are liable to discharge the debt to the

extent of the property in their hands, but in the case of Mohammadans, they were entitled to effect partition of the property only after the debts are

discharged by them. The liability to discharge the debt after the death of the deceased by the heirs and legal , representatives remain both in the

case of Mohammedan as well as Hindu. Since we have taken the view that the legal, representatives, heirs, and assigns of deceased debtor are

entitled to claim the benefits of the Act, the said benefit cannot be negatived to the case of Mohammadan, merely because they discharge the debt

precedent before effecting division of the property from out of the surplus of the properties left by the deceased. As there is a liability on the part of

the legal representatives and heirs of the deceased Hindu, there is also a liability to discharge the debt after the death of the deceased in the case of

a Mohammadan. Hence, we have no hesitation in answering this question also in favour of the legal representatives, assigns and heirs of the

deceased Mohammadan debtor as persons entitled to claim the benefits of the Debt Relief Acts.

For the foregoing discussions, we answer questions Nos. 1 and 2 in the affirmative to the effect that the definition of ''debtor'' in Tamil Nadu

Acts 38 of 1972, 50 of 1982 and 13 of 1980 include his heirs, legal representatives and assigns and further the heirs, legal representatives and

assigns of a debtor governed by Mohammdan Law are also entitled to claim the benefits under the above Acts and we consider that the decision

of the Division Bench in Komalambal v. Neelavathi Animal (1987) 100 MLW 1059 was wrongly decided and will therefore be overruled. Since

we have not gone into the merits of the respective cases, they may be placed before the concerned Benches for disposal on merits according to

law.