Palani Sri Dandayuthapani Devasthanam vs Mohammad Gani Rowther and Others

Krishnaswami Nayudu, J.—This appeal raises an interesting point as to the application of the Madras Agriculturists'' Relief Act to debts due

& owing to a religious institution like Sri Dandayuthpani Devasthanam, Palani, which is the creditor in this case. Two brothers Sheikh Muhammad

Rowther and Kadir Muhammad Rowther who were entitled to half a share each in certain lands mortgaged them to the Devasthanam under two

usufructuary mortgages, the mortgage by Sheikh Muhammad Rowther being for Rs. 22,000 on 14-12-1922 and that by the younger brother

Kadir Muhammad Rowther being for Rs. 14,000 on 13-8-1923. In execution of a money decree against Sheikh Muhammad Rowther the equity

of redemption in half of the mortgaged properties was brought to sate and it was purchased by one Ramaswami Nicker. The purchaser paid on

21-7-1943 the amount due on the earlier of the two mortgages, viz., Rs, 22,000 to the Devastanam and discharged the same. After the sale the

Devasthanam instituted a suit in O. S. No. 15 of 1948 in the Subordinate Judge''s Court, Dindigul for partition and separate possession of the half

share of Kadir Muhammad Rowther the mortgagor under the latter usufructuary mortgage dated 13-8-1923. The Devasthanam secured

possession of that half share in pursuance of that decree.

The petition out of which this appeal arises is one taken under Sections 1-9-A and 9-A, Madras Agriculturists'' Relief Act, by the heirs and

representatives of Kadir Muhammad Rowther who died prior to the petition, for scaling down of the debt covered by the mortgage dated 13-8-

1923. On behalf of the Devasthanam several contentions were raised resisting the application. The first contention was that the petitioners were not

agriculturists as they could not be deemed to be persons within the meaning of Section 3 of Act 4 of 1938 as under Mahomedan law, the heirs

succeed to only what remains after payment of the debts due by the deceased, that the properties of the deceased should be applied in payment of

debts and then alone can the heirs seek any claim for what is left over and that therefore the estate of the deceased is not a person and hence not

an ""agriculturist"" under the Act. The second contention was that the Devastanam being a religious institution monies due to such an institution

cannot be scaled down. Both the contentions were repelled by the learned Subordinate Judge of Dindigul.

In appeal, the learned counsel for the appellant while referring to the first of the contentions has, however, not seriously pressed his objection on

that ground, especially in view of the decision of a Bench of this court reported in Perianna Goundan Vs. Sellappa Goundan and Others, that the

right to claim relief under the Act was not confined to the person who actually contracted the debt, but was available to his heir at law, legal

representative or assign.

The learned counsel, however, argued on the second of the objections that the Devastanam could not be treated as a creditor under the Act and

therefore, any debt due to a devastanam. which is a religious institution and not an indi-vidual is not liable to be scaled down under the Act. Mr.

Seshalapathi referred to the relevant provisions of the Act in support of his contention. Reference to the definition of the word ""person"" as not

including a body corporate, a charitable or religious institution or an unincorporated company or association was stressed to show that a religious

institution cannot be a person under the-Act. Both in order to consider the objection raised, it is necessary to see whether the word ""creditor

includes a religious or charitable institution or is only confined to individuals.

Creditor is not as such defined in the Act, but it is mentiond in Section 3 (v) as to include his heirs, legal representatives and assigns. In the absense

of any definition as such of a creditor, the ordinary dictionary meaning of the word ""creditor"" should alone be taken into account and ""creditor

means one to whom a debt is owing and ths debt may be owing to an individual or to an institution. An ""agriculturist"" has been defined as only to

refer to a person and a person is one who has already been defined in the Act as not to include body corporate, a charitable or religious institution

or an unincorporated company or association. There is no such restriction that the creditor should be a person or an individual and not a body

corporate, a charitable or religious institution or an unincorporated company or association.

Apparently the necessity for an independent definition of the word ""person"" arose because the Act wanted to give relief to individuals and members

of an undivided Hindu family, a Marumakattayam or Aliyasantana tarwad or tavazhi in respect of agricultural indebtedness and did not want to

include an unincorporated company or association who may have a saleable interest in agricultural lands and being faced with the definition of

person"" in the General Clauses Act as to include any company or association or body of individuals, whether incorporated or not. Otherwise, in

my view, there was no need to have an independent or separate definition of the word ""person"" in the Act. The definition of the word ""person"" in

the Act has therefore been necessitated by reason of the scope and object of the Act and also by reason of the word ""person"" being understood to

include not only individuals but companies and associations as well under the General Clauses Act.

Mr. Seshachalapathi refers to the meaning of ""creditor"" in Section 3 (5) and emphasises on the use of the words ""his heirs, legal representatives

and assigns"" as meaning that a creditor can only be a living sentient being. The use of the word may be urged to support his contention. But in the

absence of any definition of ""creditor"" as in the case of ""agriculturist"" it is for consideration whether the Act has excluded the institutions and other

incorporated bodies from the category of creditors and unless there is any express exclusion, it is not desirable to Imply from the mere use of the

said words with reference to ""creditor"" that only living sentient beings have been contemplated to come within the term ""creditor"".

Section 10 which deals with the exceptions to the application of the provisions of Sections 8 and 9 scaling down provisions, except under Clause

(iii) any liability in respect of any sum due to any public company or to any scheduled bank, if the interest payable in respect of the liability is not

more than nine per cent per annum. This provision is sufficient to justfy the inference that the word ""creditor""'' could not have been restricted to any

individual or living sentient being but was also contemplated to include any public company or a scheduled bank. In regard to debts due to these

bodies if the interest is not more than 9 Per cent, per annum any agriculturist was held not entitled to any relief by way of scaling down. There is no

provision in the Act which expressly or im-pliedly restricted the meaning of the word ""creditor"" to an individual and which can be held to exclude

any institution or a public company or a body corporate. A religious institution like Sri Dandayuthapani Devasthanam which is the respondent in

this case is a creditor within the meaning of the Act. The appeal therefore fails and is dismissed with costs.

There is a memorandum of objections by the respondents. The devasthanam claimed credit for a'' sum of Rs. 600 which, it stated, was spent for

costs of O. S. No. 15 of 1948, the suit for partition and recovery of possession of the half of Kadir Mohammed Rowther. The ground on which

the amount of these expenses was claimed is stated in para 7 of the counter. On behalf of the devasthanam, it is contended that the suit was

instituted at the instance and for the benefit of the respondents, that one of the respondents the first respondent on behalf of the other respondents

agreed to pay the sum towards the suit and that they are bound to psv the amount both as per agreement and also under the law. The learned

Subordinate Judge upheld this contention and directed this amount to be given credit to. It is pointed out by Mr. Naidu on behalf of the

respondents that u/s 9-A(4) of the Act, the mortgagor is liable before redemption and obtaining possession of the property to pay the mortgagee

the costs of the improvements, if any, effected by him to the mortgaged property. The improvements referred to in Section 9 can only be

improvements to the mortgaged property as are contemplated u/s 63-A(2), T. P. Act, i.e., in cases where improvement becomes necessary to

preserve the property from destruction or deterioration or to prevent the security from becoming insufficient or was made in compliance with the

lawful order of any public servant or public authority, the mortgagor shall be liable to pay the cost of such improvements. The costs of a suit

instituted for recovery of possession of property could not, in any view, come within any of the purposes mentioned in Section 63-A(2) and cannot

in any view of the case be considered an improvement. The lower court erred in allowing the expenses to be given credit to, as it is not an

improvement to which the mortgagee would be entitled before redemption u/s 9-A(4). The Memorandum of objections is allowed. There will be

no order as to costs. Appeal dismissed; Cross-objections