Thulasi Ammal and Others vs Thasu R. Sami Iyer

Natarajan, J.—The appeal has been preferred by the seven Defendants in Original Suit No. 105 of 1973 on the file of the Court of the District Munsif of Paramakudi. The suit was filed by the Respondent for recovery of a sum of Rs. 4,352 due under exhibit A-1, a registered mortgage deed dated September 1, 1968. The mortgage was created by one late Ramanatha Iyer and his two sons who are Appellants 4 and 5. Appellants 1 and 2 are the widows of Ramanatha Iyer, while the third Appellant is his another son and Appellants 6 and 7, his daughters. The period of redemption of the mortgage was fixed as 2-2 1/2 years and the rate of interest was 18 per cent per annum payable every month and in default, penal interest was payable at 21 per cent per annum. The mortgagors had paid in all a sum of Rs. 2,900 towards the mortgage and the balance was outstanding. The suit was instituted for recovery of the balance of principal and interest and the Respondent averred that the Appellants were not agriculturists entitled to the benefits of Tamil Nadu Act IV of 1938.

The defence of the Appellants was that the suit mortgage was executed in renewal of old debts due by Ramanatha Iyer and in regard to the earlier debts a total sum of Rs. 1,887.50 had already been paid in three instalments. They further contended that they were agriculturists and were consequently entitled to the benefits of Act IV of 1938 as amended by Act VIII of 1973. Adding up the admitted receipt of Rs. 2,900 by the Respondent with the alleged payment of Rs. 1,88750 towards the earlier debts, the Appellants contended that they had paid more than twice the principle amount and therefore, the suit should be dismissed.

In support of their contention that they were agriculturists the Appellants filed a registered othi deed, exhibit B-1, dated March 20, 1969, executed by one Muthurakku Thevar in favour of Ramanatha Iyer and exhibits B-2 to B-4 which were kist receipts evidencing payment of kist for the othi land.

Having regard to exhibits B-1 to B-4, the trial Court held that the Appellants are agriculturists, and there being no dispute about the payments pleaded by the Appellants, it accepted the defence and dismissed the suit. On appeal by the Respondent, the Subordinate Judge of Ramanathapuram at Madurai, held, following the decision in Pappathi Ammal v. Nallu Pillai (1963) 2 M.L.J. 594, that as the Appellants were not agriculturists on the date the debt was incurred, they were not entitled to the benefits of Act IV of 1938 as amended by Act VIII of 1973. He, however, found that the rates of interest provided in the mortgage deed were excessive and that 12 per cent per annum would be a fair rate of interest to be awarded in the case. Accordingly, he allowed the appeal and decreed the suit in favour of the Plaintiff-Respondent for the balance of amount together with interest at 12 per cent per annum till the date of suit and future interest at 6 per cent per annum.

On behalf of the Appellants, Mr. Sarangapani Mudaliar, learned Counsel, urges that the decision in Pappathi Ammal v. Nallu Pillai (1963) 2. M.L.J. 594 would not be attracted to the facts of the instant case and therefore, the Subordinate Judge had committed an error in applying the ratio in that case. According to him, that case was decided with reference to Section 13 of Act IV of 1938, whereas the instant case has to be decided with reference to Section 7 and 8 of Act VIII of 1973. In support of his contention, Mr. Sarangapani Mudaliar places reliance on the definition of the word debt contained in the amended Act, which is as follows:

Debt means any liability in cash or kind, whether secured or unsecured, due from an agriculturist, whether payable under a decree or order of a civil or revenue court or otherwise, but does not include rent as defined in Clause (iv) or ''kanartham'' as defined in Section 3 of the Malabar Tenancy Act, 1929 (Tamil Nadu Act XIV of 1930).

He also relies upon Section 7 which deals with all cases of debts due by agriculturists as on 1st March 1972 and Section 8 which is the machinery provision prescribing the mode and extent of scaling down. Before proceeding to consider the arguments of the Appellants'' Counsel, it is necessary to pin-point to relevant facts which will have a bearing on the case. Admittedly, the mortgagors were not agriculturists on the date the debt was incurred, the date of the debt being September 1, 1968. It was only about six months later, i.e., on March 20, 1969, that the mortgagors obtained an interest in agricultural property under the othi deed, exhibit B-1. The question for consideration would be whether the Appellants should have been agriculturists on the date of the incurment of the debt as well as on the date of the suit, as laid down in Pappathi Ammal v. Nallu Pillai (1963) 2. M.L.J. 594, or whether it would suffice if they were agriculturists on the date of the suit alone as contended by the Appellants. It is not in dispute that if the Appellants'' contentions are accepted, then no amount would be due to the Respondent, as per the amended Section 8.

The controvercy as the one on hand does not seem to have specifically come up for consideration in any earlier case and, at any rate, no reported case was cited before me at the Bar by Counsel appearing for the parties. However, for an answer to the question, it would be useful to make reference to certain other cases under Act IV of 1938, where the contention raised were on different grounds.

In N. Krishnaswami Aiyar Vs. T.N. Nagalinga Mudaliar, the question raised was whether in regard to a debt incurred by A, a non-agriculturist, superseded by another debt incurred by A and B, B being an agriculturist, B can contend that his liability is in renewal of a prior debt. The plea of B was negatived and it was held that where the prior debtwas not one due from an agriculturist, a debtor cannot call in aid Section 9 of Act IV of 1938 on the ground that the debt sued on is in renewal of a prior debt and that the prior debt also must fall within the definition of debt in Section 3 if Section 9 is to have any appplication. In P.L.P. Devarayan Chettiar Vs. Sp. Subramania Iyer and Another, the controversy was whether a debt incurred in the year 1929 by three persons under a promissory note, subsequently discharged by another promissory note of 1932, could be tagged on to a promissory note executed by two of the borrowers alone in the year 1935 in discharge of the note of 1932, to claim benefit under Act IV of 1938. That question was answered in the affirmative. Then arose the question whether one of the two debtors who had become an agriculturist only in May 1937, the other being an agriculturist all through, could claim the benefit of Act IV of 1938. The Bench held that the Act required a person claiming benefits had to prove that he was an agriculturist on 1st October 1937, the date prescribed in the Act, and 22nd March 1938 when the Act came into force. Having regard to the acquisition of interest in agricultural land by the disputed debtor in May 1937 itself, the Bench held that he was also entitled to claim the benefits. In doing so, the Bench observed as follows:

The relevant period apart from the date of the suit when a debtor has to be an agriculturist to claim the benefit of the explanation to Section 8 is the period from an d after 1st October 1937, having regard to the proviso to Section 3(ii) of the Act.

This observation was later clarified by the same Bench in Pappammal Vs. Ramaswami Chettiar, . The clarification was made in the following manner:

We pointed out that he was an agriculturist both before the crucial date, 1st October 1937, and after the crucial date 22nd March 1938, which is the date of the commencement of the Act. We had no occasion on the facts of that case to consider whether it was necessary that he should have been an agriculturist on the date of the suit and the case is not an authority for the proposition in support of which it has been quoted:

This clarification was considered an unnecessary obiter and was dissented by the Full Bench which decided the case in Pappathi Ammal v. Nallu Pillai (1963) 2. M.L.J. 591. The facts in the Full Bench case (1963) 2. M.L.J. 591 referred to above were inverse to the facts of the instant case, viz., the borrower therein was an agriculturist at the time the debt was incurred, but he ceased to be an agriculturist when the suit was instituted by the mortgagee. The contention on behalf of the debtor in that case, who claimed benefit under Act IV of 1938 was that it would suffice for the purpose of the Act if the debt had in its inception, been incurred by an agriculturist and it was not necessary that the debtor must be an agriculturist even on the date when the proceedings for the recovery of the debt were instituted. After a review of several cases, the majority of the Full Bench held as follows:

In order to entitle a debtor to claim relief u/s 13 of Act IV of 1938 he must be on agriculturist as defined in the Act on two crucial dates (1) on the date of the debt (as otherwise, it will not be a debt incurred by an agriculturist) and (2) on the date of recovery thereof--through the process of Court as otherwise there would be no proceedings for recovery of a debt as defined by the Act.

It is this pronouncement which the Appellants'' Counsel seeks to differentiate from.

Mr. Sarangapani Mudaliar points out that Section 7 makes reference to all debts payable by agriculturists being scaled down in accordance with the provisions of Chapter II and that Section 8 prescribes the mode of scaling down in respect of debts incurred before 1st March 1972. His contention is that since there are no qualifying words in Sections 7 and 8 to warrant an inference that the debt can be scaled down only if the borrower had been an agriculturist even at the time when it was incurred, the Subordinate Judge was not justified in narrowing down the scope of the terminology debt and holding that since the Appellants were not agriculturist at the time the debt was incurred they were not entitled to the benefits of the Act. As already referred to, he also points out that the definition of the word debt does not also make reference to the status of the debtor at the time of the incurring of the debt and therefore, the word debt would also include the debt incurred by a person who had subsequently acquired interest in agricultural lands. The answer to these contentions is of a two-fold nature. Firstly, the Appellants'' Counsel is not right in contending that the decision in Pappathi Ammal v. Nallu Pillai (1963) 2. M.L.J. 594 was rendered only with reference to the effect of Section 13 of Act IV of 1938 and that the impact of the provisions contained in Sections 7 and 8 was not considered. That the decision in the Full Bench case (1963) 2. M.L.J. 594 was rendered after considering the effect of all sections viz., Sections 7 to 9 and 13, can be seen from following passage contained in page 596 in that case:

The terms of the section (Section 13) show that unlike Section 7, there is no automatic discharge of the debt, the scaling down to the statutory rate of interest, is to be done only by the Court when proceedings for recovery of the debt come up before it. Quite recently a Full Bench of this Court held in V.S.T. Sheik Mansoor Tharaganar and Another Vs. S.V.S. Sankarapandia Mudaliar, that the Act as such does not render the payment of, or the contract to pay, interest at a rate higher than the statutory rate, illegal; only the excess interest is made irrecoverable. This view was reiterated in Chellammal v. Abdul Gaffoor Sahib (1961) 2. M.L.J. 222 another Full Bench decision which has pointed out the difference in scope between Section 8 and 9 on the one hand and Section 13 on the other. There are, therefore, two outstanding factors to be taken note of, (i) that the Act aims at giving relief to agriculturist debtors, and (ii) that a contract to pay interest at a rate higher than that sanctioned by statute is not per se illegal. Interest due in excess of the statutory rate is only liable to be scaled down when proceedings are taken for the recovery of the debt. The logical outcome of these principles will be that the material date for the grant of relief is the date when it is sought, and that therefore, the debtor should continue to satisfy the requirement as to his being an agriculturist then.

With regard to the word due contained in the definition of the word debt the majority of the Judges of the Full Bench case had also interpreted it in the following manner:

The word ''due'' as used in the Act has been the subject of judicial interpretation in Chellammal v. Abdul Gaffoor Sahib (1961) 2. M.L.J. 222 where one of us (Srinivasan J.), delivering the judgment on behalf of the Full Bench, observed that the expression ''has undoubtedly a sense of something to be performed in future as distinct from something that has happened in the past". Therefore, a debt by its very definition under the Act implies that at the time when it is due it must be due from an agriculturist. It is therefore clear from the terms of the section that in order to entitle a debtor to claim relief u/s 13, he must be an agriculturist as defined in the Act on two crucial dates, (1) on the date of the loan....and (ii) on the date of recovery thereof through the process of Court....

Another Full Bench of this Court had to consider in S.P.L.P. Narayanan Chettiar Vs. M.A.R. Annamalai Chettiar, among other things, (i) whether a debt incurred before 1st October 1937 is not a debt payable by an agriculturist at the commencement of Act IV of 1938 (22nd March 1938) within the scope of Section 7 of the Act if the due date for payment is later than 22nd March 1938, and (ii) whether a deposit or other sum payable on a demand is a debt payable by an agriculturist at the commencement of the Act, notwithstanding that the creditor had not made the demand for payment on or before 22nd March 1938 After an elaborate consideration, the Judges, who constituted the Full Bench, held that the word due occurring in the definition of debt in Section 3 (iii) of the Act is a term of wide import and, read in the context of the Act, it should be given an extended meaning so as to include, not only a debt which was payable at once, but also one which was payable at a future time. Applying this interpretation inversely, it should logically follow that the debt must have been due and payable by an agriculturist, not only at the time the demand was made, but even at the time the liability was incurred. In such circumstances, I am not persuaded to accept the argument of the appellates'' Counsel and hold that the conditions laid down in Pappathi Ammal v. Nallu Pillai (1963) 2 ML J. 594 for a person to invoke the benefits of the Act would not apply to the facts of the case on hand. If the contention of the Appellants is to be accepted then it would lead to ludicrous results. Even a non-agriculturists can, subsequent to incurring the debt, acquire interest in a small piece of agricultural land and then c aim the benefits of exemption under the Act. Surely, the intention of the Legislature was not to confer the benefits of the Act on such a class of persons. The Act was intended to apply only to genuine agriculturists who had an interest in agricultural lands at the. time of incurring the liability and continued to be agriculturists all through till proceedings were instituted for recovery of the debt. The second set of circumstances which also go against the contentions of the Appellants are to be found in the explanation to the proviso to Section 13 of the Act as amended by Act VIII of 1973. That reads as follows:

Explanation I--

For the purposes of this section (Section 13) the definition of ''agriculturist'' in Section 3(ii) shall be read as if:

Provided that a person shall not be deemed to be an agriculturists'' if he--

(A) has, in the financial year ending on the 31st March immediately preceeding the date on which the debt is incurred been assessed to income tax...or

(B) has, in all the four half-years ending on the 31st March or 30th September (whichever is later) immediately preceding the date on which the debt is incurred, been assessed to profession tax or

(C) has, in all the four half-years ending on the 31st March or 30th September (whichever is later) immediately preceding the date on which the debt is incurred, been assessed to property or house-tax in respect of buildings or lands other than agricultural lands....

From the wording contained in the above explanation to the proviso, it can be clearly seen that the date of incurement of the debt would be crucial date for determining whether a person was an agriculturist or not. It is with reference to this date, the Court will have to find out whether a person had been assessed to income tax or profession-tax or house-tax, etc., and decide whether the debtor is an agriculturist or not. The obvious inference, therefore, is that the intention of the Legislature was to confer the benefits of the Act only on persons who were agriculturists, except those referred to in the proviso, on the date the debt was incurred. In that view of the matter also, the contention of the Appellants must be held to be an untenable one.

In the result, the appeal fails and will stand dismissed with costs to the Respondent. No leave.