Sri Chitturi Narayanamma vs Vankina Venkatachalam and Another

Wadsworth, J.—The plaintiff appeals against the reduction of her claim on the basis of a defence under Madras Act IV of 1938. The suit

was on a mortgage (Ex. A) dated 10th January, 1931, executed by the first defendant in favour of the plaintiff for the sum of Rs. 20,000. The

mortgage deed recites four previous debts, the discharge of which provided the consideration for the document. They are as follows: (1) Ex. B, a

promissory note for Rs. 3,000 dated 18th August, 1928, executed by the first defendant''s father in favour of P. W. 4, the husband of the plaintiff;

(2) Ex. D, a promissory note for Rs. 2,025 dated 30th September, 1929, between the same parties that is, the first defendant''s father and the

plaintiff''s husband; (3) Ex. C, a promissory note for Rs. 5,429-5-0 executed on 11th February, 1930, by the first defendant himself in favour of

the plaintiff''s husband. This promissory note recites the discharge of an earlier promissory note debt incurred by the first defendant''s father, which

debt had been allotted to the first defendant in the division effected between him and his father, and (4) Ex. E, a promissory note for Rs. 6,000

executed on 18th August, 1928, by the first defendant''s father in favour of the plaintiff herself. The learned Subordinate Judge went at some length

into the evidence whether the plaintiff was really a benamidar for her husband and whether the monies advanced to the first defendant''s father,

which debts became consolidated in the suit mortgage, were the monies of the plaintiff herself Or those of her husband. At the time when this case

was decided, the Courts had not the benefit of the decisions which have helped to elucidate Act IV of 1938 and it was not realised that in order to

claim the benefit of the explanation to Section 8, there must be a substantial identity of both parties to the debt, with the parties to the prior debts of

which it is alleged to be a renewal. We held in Varadarajam Pillai, by guardian Malayaperumal Pillai Vs. Krishnamurthi Pillai, , that when there was

a mortgage debt which was claimed to be a renewal of an antecedent promissory note debt in favour of a different person, it was not open to the

petitioner to contend that the creditor under the promissory note was some one other than the promisee whose name appears in the note. That

conclusion was based upon the provisions of the Negotiable Instruments Act, but we point out incidentally that the definition of the word ''creditor''

in Section 3 (v) of Act IV of 1938, though it expressly includes the creditor''s heirs, legal representatives and assigns, does not include the person

beneficially entitled to the amount lent. In Karuppanna Goundan Vs. Marutha Pillai, , we had to deal with the position where a joint family owed a

debt and at the partition of the family this debt was allotted to one of the former co-parceners who executed a fresh document in favour of the

creditor. We held that the contract executed by the individual debtor in substitution for the earlier debt owed by the joint family was not a debt

renewed or included in a fresh document in favour of the same creditor, holding the view that there must be a substantial identity of the debtor as

well as the creditor. We have, of course, held that where there is a joint family debt for which one co-parcener has signed, which is renewed by

another joint family debt for which a different co-parcener signs, there is a substantial identity of the debtor sufficient to satisfy the criterion which

we have laid down. In one case S. Ramasubbier and Another Vs. P. Rama Aiyar and Others, , we had to deal with the rather peculiar

circumstances of a debt due by a joint family consisting of four brothers, one of whom executed a release deed and went out of the family

whereafter the other three brothers, who continued to form the joint family, renewed the debt in their own names. We held in the special

circumstances of the case that there continued to be a debt due by the same family as that which had originally incurred the debt.

Now, applying these decisions to the facts of the present case, the four debts superseded by Ex. A may be classified as follows: Those

evidenced by Exs. B and D are debts in which neither of the parties is a party to the suit debt, the debtor being the father of the 1st defendant and

the creditor being the husband of the plaintiff. In each of the two transactions evidenced by Exs. C and E there is one party common to Ex. A

though the other party is different. In Ex. C the debtor is the 1st defendant himself but the creditor is the plaintiff''s husband, while in Ex. E the

debtor is the first defendant''s father and the creditor is the plaintiff herself. It seems clear from the recitals in Ex. C that there was a regular partition

between the first defendant and his father, the date of which must have been sometime between September, 1929 and February, 1930 judging

from the recitals in Exs. D and C. It follows that there is a different debtor in each of the antecedent debts evidenced by Exs. B, D and E, and on

the strength of our decisions the first defendant cannot claim to scale down the suit debt with reference to the antecedent debts of the joint family

allotted to him at the partition in respect of which he has executed fresh documents.

With reference to Ex. C the debtor is the same. The promisee under Ex. C is the plaintiff''s husband, whereas under the later mortgage the

creditor in the document is the plaintiff herself. But it was found by the lower Court that the plaintiff took this mortgage as a benamidar for her

husband. In the view we take of the law it is unnecessary for us to decide whether the lower Court''s decision on the facts is correct or not. We are

unable to accept the view that the debtor can scale down the debt under Ex. A on the basis that the real creditor under Ex. A is the promisee

under the earlier note Ex. C. Our decisions have already gone so far as to make it impossible for the debtor to contend that the promisee under Ex.

C is a benamidar for the later mortgagee. But we have not so far held in a case where the debt is neither due under a negotiable instrument nor

under a decree, that the plea of benami cannot be called in aid in order to establish the identity of the creditor under the later debt with the creditor

under the earlier debt. The observation already referred to at page 254 in Varadarajam Pillai, by guardian Malayaperumal Pillai Vs. Krishnamurthi

Pillai, , does contain an indication of the view which we are now setting forth. When we have to decide whether one creditor is the same person as

another creditor, we are entitled to look to the definition in the Act and when that definition expressly includes heirs, legal representatives and

assigns, there is much to be said for the view that the non-mention of beneficiaries must justify an inference that they are not included in the

definition of ''creditor''. Ordinarily speaking, when we speak of a creditor, we mean the person with whom the debtor has contracted and to whom

he looks for his discharge; we do not mean the person to whom the money will eventually go after it has been collected. In order to justify the

interpretation of the term ''creditor'' as including a beneficiary who will eventually be entitled to the proceeds of the debt, there ought to be some

express indication in the enactment which we do not find. On the other hand, the Explanation to Section 8 seems clearly to indicate that we must

look to the document ordinarily to find out who is the creditor. The words ""where a debt has been renewed or included in a fresh document in

favour of the same creditor,"" do seem to indicate that in order to ascertain whether the later creditor is the same as the earlier creditor, we must

look to the writing. No doubt in the special case of one creditor who can be shown to be an assign or a legal representative or a heir of the

previous creditor, the Act comes to the debtor''s aid and provided he can prove that this relationship exists between the two, the identity of the

creditors will be established. But ordinarily speaking, when we have a debt in favour of A discharged by a debt in favour of B, it will not in our

opinion be open to the debtor to let in evidence to show that the money which he owes to B is really the money of A so as to bring into force the

Explanation to Section 8.

It follows therefore that the lower Court was wrong in scaling down the debt under Ex. A on the basis that it was a renewal of previous debts

between the same parties. The debt under Ex. A was contracted in January, 1931. It therefore falls under Clause (1) of Section 8 and the plaintiff

will be entitled to a decree for the principal sum of Rs. 20,000 with interest at 6 1/4 per cent. per annum from 1st October, 1937, till the date fixed

for redemption, which will be three months hence, and subsequent interest at 6 per cent. The plaintiff will have full costs in the trial Court and also

the costs in the appeal.