Ramanathan and Sethuraman vs V. Krishnan and 5 others

K. Sampath, J.—Defendants 1 and 3 are the appellants. Respondents 1 to 3 filed suit O.S.No.2363/79 against the appellants and the fourth

respondent who was the second defendant in the suit before the Additional District Munsif''s Court, Villupuram, for recovery of Rs. 3,000/- due

under a mortgage with further interest and costs on the following averments:

The Appellants and one Ramachandran, the second defendant in the suit, and the fourth respondent herein borrowed a sum of Rs.2,000/- on

7.4.1966 from one Veerasamy Mudaliar, the father of respondents 1 to 3, and executed a registered mortgage under Ex. A-1 agreeing to repay

the amount borrowed with interest at 12% per annum. Respondents 1 to 3 as heirs and legal representatives of the mortgagee Veerasamy

Mudaliar were entitled to the mortgage money and since they did not pay any amount towards the mortgage either to Veerasamy Mudaliar while

he was alive or to respondents 1 to 3 after his death in spite of repeated demands, the suit has to be filed. Respondents 5 and 6 were subsequent

alienees of some of the mortgaged properties. Respondents 1 to 3 claimed interest at 6-1/4% per annum since the appellants and the fourth

respondents were agriculturists.

The fourth respondent and the sixth respondent remained absent and were ex parte. The second appellant tiled a written statement and the same

was adopted by the first appellant. The defence was as follows:

The appellants and the fourth respondent did not receive any money from Veerasamy Mudaliar. The fourth respondent had borrowed driblets from

Veerasamy Mudaliar a sum of Rs. 1,500/- and Veerasamy Mudaliar wanted the fourth respondent to give as security some property for the said

amount and since the fourth respondent did not possess any property, Veerasamy Mudaliar asked him to give as security the property belonging to

the appellants. At the request of the fourth respondent, the appellants, who were his brothers, with a view to help him joined in the execution of the

mortgage in favour of Veerasamy. The fourth respondent had paid back a sum of Rs.1,000/- to the knowledge of the first appellant to Veerasamy.

This amount had not been given credit to. It was only the fourth respondent who was liable to pay the mortgage amount. The suit was barred by

limitation. The appellants owned only an extent of 66 cents of lands and as their annual income in 1979 was only Rs.500/-, they were entitled the

benefits of Act 13 of 1980.

The fifth respondent herein, who was the fourth defendant in the suit and the mortgagee of the fourth item under the suit mortgage, filed a written

statement contending that the appellants and the fourth respondent did not own any portion of the property mortgaged to him and therefore that

item should be left out of account. He also contended that he was an unnecessary party to the suit.

The trial Court framed the necessary issues and found that the suit mortgage was supported by consideration for the entire amount, that the

partial discharge pleaded by the appellant was not true, that the suit was not barred by limitation, and that the appellants and the fourth respondent

were not entitled to the benefits of Act 13 of 1980. So far as the fifth respondent was concerned, the trial Court held that he could not be termed

as the subsequent alienee of the property mortgaged and that dispute might give rise to distinct and separate cause of action and that he was not a

necessary or proper party to the suit. In the result, by its judgment and decree dated 28.8.1981, the trial court passed a preliminary mortgage

decree as prayed for with costs against the appellants and the fourth respondent granting them three months'' time for payment. The suit against the

fifth and the sixth respondents were dismissed.

The appellants herein filed appeal A.S. No. 108/82 before the Subordinate Judge''s Court, Villupuram, and the learned Subordinate Judge by

his judgment and decree dated 22.10.1983 confirmed the decision of the trial court and dismissed the appeal. Aggrieved 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 courts below have legally and properly considered the definition ""family"" as defined in the Debt Relief Act (Tamil Nadu Act 13 of

1980) and passed the decree as such?

Mr. V. Lakshminarayanan for Mr. V. Raghavachari, learned counsel for the appellants, contended that the definition of ''family'' as found in Act

13 of 1980 would not take in brothers and in the instant case, if the income or the value of the property of each of the appellants was taken into

consideration separately, then by virtue of the provisions of Act 13 of 1980, each one of the appellants would be a debtor entitled to the benefits

and the suit was therefore liable to be dismissed.

The learned Counsel in support of his submission relied on the following decisions:

(1) Jikkini Bibi Sahib v. Ranganayaki Ammal and another (1942 II MLJ 487 - 55 L.W. 851)

(2) Karuppanna Thevar v. Karuppiah Thevar and another (1982 I MLJ 345 = 95 L.W. 305)

(3) Narayana Vadivoo v. Mohammed Ebrahim (1984 II MLJ 220 = 97 L.W. 403)

(4) A. Subbiah Chettiar v. K.K.S. Mohammed Sheriff Rowther (1989 II MLJ 251) and

(5) Pochiammal v. Devakottai Nattukottai Nagarathar Dharma Paripalana Sangam (1990 I L.W. 543 = 1990 - I MLJ 67)

The respondents are unrepresented. The courts below have taken into consideration the consolidated holding of immovable properties by the

appellants and the fourth respondent and found that they owned properties worth more than Rs.25,000/- and therefore they were not entitled to

the benefits of Act 13 of 1980. The question for consideration is whether this view taken by the courts below is sustainable. There is no difficulty is

holding that the appellants and the fourth respondent do not come within the definition of ''family;. The contention of the learned counsel for the

appellants is that their holding or assets will have to be individually valued and if that is done, each of the appellants would satisfy the definition of

debtor under Act 13 of 1980.

In Jikkini Bibi Sahiba referred to supra, the question that arose for consideration was whether in computing the aggregate annual rental value of

the properties in respect of which the debtor has been assessed, the whole annual rental value of the house in which the debtor held only a

fractional share should be taken into account or only the proportionate share of such value. The learned Judge Patanjali Sastri, J. followed an

unreported decision of a Division Bench of this Court in C.M.P.Nos.5740 to 5747 and 5905 to 5907 of 1941. In the case before the Bench, the

petitioners who claimed the benefits of the Act were owners of a half share of a house, which had been assessed to tax during the relevant period.

It was held by the Bench that the unit of such assessment could not in such cases be regarded to be the whole of the property, but the annual rental

value of the share of the petitioners only. No doubt, in that case, the difference in the language between proviso (d) to Section 3(ii) and proviso (c)

was noticed by the learned Judge. But, still the learned Judge felt bound by the decision of the Bench and followed it holding that only the fractional

share of the debtor had to be taken into account for finding out whether he was a debtor.

In Karuppana Thevar v. Karuppiah Thevar and another (1982 I MLJ 345), Sethuraman, J. held that with reference to each of the individual

debtors the benefit of the family had to be considered and as a fact that each debtor had an income of Rs.3,800/- which was less than the limit of

Rs.4,800/-. No doubt. in that case both the persons had suffered decree and both claimed benefits under Act 13 of 1980. This decision was

followed in Narayaha Vadivoo v. Mohammed Ebrahim (1984 II MLJ 220) by Swamikkannu, J. In that case, before the learned Judge two

brothers suffered a decree. One claimed benefits under the Debt Relief Act. It was held by the learned Judge that income of the persons claiming

benefit alone had to be taken into consideration. The learned Judge merely referred to Section 3(35) of the Tamil Nadu General Clauses Act,

1891 to the effect ""words in the singular shall include the plural and the words in plural will include the singular"" and left it there.

In Subbiah v. Mohammed Shariff Rowther (1989 11 MLJ 251 Ratnam, J. as he then was, dealt with a case of a singular debtor and held that,

in a case where an individual holds jointly with another, immovable property or agricultural lands and other immovable properties before he could

be held to be disqualified from claiming the benefits of the Act, the market value of the properties held by the individual though jointly with another,

should appropriately form the basis for the disqualification. A contrary interpretation would deprive a large body of debtors the benefits of the Act

for the reason that the market value of the totality of the holding jointly held could be in excess of Rs.25,000/- though the market value of the share

of the debtors concerned may be less than Rs.25,000/-.

The last of the decisions relied on by the learned Counsel for the appellants, is Pachiammal & others v. Devakottai Nattukottai Nagarathar

Dharma Paripalana Sangam (1990 I L.W. 543). It dealt with the question whether legal representatives of a debtor would be entitled to claim

benefits under the Debt Relief Act and held following the Full Bench of this Court in Kaliyammal v. Raghurama Goundar (1989 I L.W. 253) that,

the legal representatives could set up an independent plea other than what the original debtor could have set up.

This decision does not touch the point under consideration in the present case.

There is a direct decision of a Bench of this Court in Samuel Nadar and others v. Verappa Chettiar and another (99 L.W. 266) where it has

been held that,

Where more than one person are the debtors and they jointly own a house property, the entirety of their interest should be taken into account for

determining whether they are debtors.

The Bench affirmed the decision of a single judge of this Court. The Bench distinguished the decision of Patanjali Sastri, J. in Jikkini Bibi Sahiba v.

Ranganayaki Ammal and another referred to supra and in fact, the Bench referred to the unreported decision of the Division Bench in

C.M.P.Nos.5740 to 5747 and 5905 to 5907 of 1941. It must also be held that the Bench has impliedly overruled the decisions in Karupanna

Thevar v. Karuppiah Thevar and another (1982 I M.L.J. 345) and Narayana Vadivoo v. Mohamed Ebrahim (1984 II MLJ 220). It does not

appear from the judgment of the Bench that the above two decisions were brought to its notice. As in the case of the Bench decision the instant

case is a case of recovery of money due on a mortgage which in law is not divisible and there can be no splitting up for the purpose of relief under

the Debt Relief Acts. Applying the decision of the Bench to the facts of the present case, it can be seen that what the Courts below have done by

taking into consideration the total assets of the appellants in coming to the conclusion that they were not entitled to the benefits of the Debt Relief

Acts, is correct. No other binding decision taking any contrary view was brought to my notice. Consequently, the substantial question of law raised

in the Second Appeal has to be answered against the appellants and the Second Appeal is, therefore, dismissed. There will, however, be no order

as to costs.