Rajasekar vs Krishnasamy and Others

K. Sampath, J.—The short point for consideration is whether the plaintiff/appellant will be entitled to a larger amount than what has been

decreed by the lower Appellate Court.

Even according to the plaintiff, the first defendant, since deceased, was an agriculturist. If he was an agriculturist, he would be liable to pay

interest only as per Act 4 of 1938 as amended by Act 8 of 1973. His case was that the first defendant borrowed a sum of Rs. 10,000 from the

plaintiffs grandfather one Ramasamy Chettiar and executed a mortgage deed agreeing to pay interest at 12% per annum and agreeing to the other

usual conditions as stipulated in the mortgage. Ramasamy Chettiar executed a Will dated 10.9.1969 and the plaintiff became entitled to the

mortgage deed as per the Will. The deceased first defendant had paid interest up to April, 1974. Notice was issued to him on 29.10.1980. In spite

of repeated requests and notice, he had not paid the amount. He was not entitled to the benefits of the Debt Relief Act. He was an agriculturist and

a big farmer and interest at 9% per annum was claimed. Pending suit the first defendant died and his legal representatives came on record.

The fifth defendant filed a written statement contending that, even according to the plaintiff, till April, 1974 the first defendant had paid interest

and therefore, he could not claim any dues as per Act 4 of 1938 as amended by Act 8 of 1973, that is to say, that whatever amount, in respect of

a debt incurred prior to 1.2.1972, had been paid either towards principal or towards interest should go towards discharge of the principal and the

first defendant had paid interest in a total sum of Rs. 6000/- and this amount ought to have been deducted from the principal amount and the suit as

prayed for was not maintainable.

On the above pleadings, the trial Court held that the suit was maintainable, that defendants 2 to 5 could not claim the benefits of Act 4 of 1938

as amended by Act 8 of 1973 and when, according to the plaintiff, interest till 1974 had been paid, it should be deemed that it was paid at 6% and

not at 12% as claimed. However, since the mortgage deed provided for 12% interest, it must be deemed that the first defendant had paid at the

rate of 12% per annum and in as much as the plaintiff himself had accepted that the first defendant was an agriculturist, he was liable to pay only

interest at 9% per annum and the excess interest of 3% had to be deducted from the principal amount and so holding by judgment and decree

dated 21.9.1987 decreed the suit for Rs. 8500 payable with interest at 9% and further provided that in case the amount was not paid within two

months, the plaintiff was at liberty to proceed further for bringing the property belonging to the defendants to sale.

The defendants filed appeal in A.s.No.89/87 before the Sub Court, Gobichettipalayam. The learned Subordinate Judge held that defendants 2

to 5 were also entitled to the benefits of Act 4 of 1938 as amended by Act 8 of 1973. The learned Subordinate Judge further held that on the

plaintiffs own admission, he had received interest up to 1974 and the rate fixed under the mortgage deed was 12% and it must be deemed that the

first defendant had paid Rs. 6000 and as he was an agriculturist, this amount should go in discharge of the principal and only the balance amount of

Rs. 4000 would be due and this amount the defendants were liable to pay with interest at 6-1/2% per annum, failing which further proceedings for

sale could be taken. It is as against that, the present second appeal has been filed.

At the time of admission the following substantial question of law was raised for decision in the second appeal:

Whether the judgment of the lower Appellate Court is vitiated by its failure to consider all the relevant evidence on record and apply the correct

principles of law?

When the plaintiff himself admits that the first defendant was an agriculturist and had also claimed interest at 9% per annum in conformity with

Act 4 of 1938 as amended by Act 8 of 1973, it would not be open to the plaintiff to contend that the benefits of Act 4 of 1938 as amended by

Act 8 of 1973 would not be available to the first defendant.

So far as the other defendants are concerned, it is settled law that,

the right to claim relief under Act 4 of 1938 as amended by Act 8 of 1973 is not confined to the person, who actually contracted the debt, but is

available equally to person who is liable on account of the possession of property or a person who comes under the liability by devolution provided

of course that such person is agriculturist as defined by the Act even though the original debtor was not an agriculturist or was disqualified from

claiming relief under the Act.

Where the original liability was incurred by the debtor under a pronote executed prior to 1st October, 1932 and the debtor''s sons succeeded to

his estate after 1st October, 1932, such succession cannot be the basis of a new liability. The sons'' liability is traceable only to the original

transaction and therefore the debt is liable to be scaled down as of debt under the provisions of the Act."" (See Kona Hasan Fathima Bin and Ors.

v. Muhammad Muhaideen Nachiar and Ors., AIR 1943 Mad. 87 and Cheruvu Nageswaraswami Vs. Rajah Vadrevu Viswasundara Rao and

Others, .

The learned Counsel for the plaintiff vehemently submitted that the defendants should establish that they were entitled to the benefits of Act 4 of

1938 as amended by Act 8 of 1973. When it is conceded that the first defendant was an agriculturist, it was up to the plaintiff to show that he

came within one of the exceptions provided under the Act to disentitle him to the benefits of the Act. There is no material placed by the learned

Counsel for the appellant for me to take a view different from the one taken by the lower Appellate Court. (See Arumugha Nadar v. Kumara

Pillai, 1981 (2) MLJ 35 : 94 LW 278 : 1981 TLNJ 3.

The lower Appellate Court has considered all the materials on record and has come to the right conclusion. There is no error of law warranting

interference. The substantial question of law is answered against the appellant. The second appeal fails and the same is dismissed. There will be no

order as to costs.