V. Ponnambalam Chetti and Others vs Ambalam Raman Chetti and Others

Wadsworth, J.—The question in this petition is whether defendants are entitled to the benefits of the Madras Agriculturists Relief Act. It has

been found by the learned District Munsiff from whom a report was obtained, that the defendants have not been assessed to property tax on an

aggregate annual rental value of Rs. 600 and that therefore Proviso (c) to Section 3 of the Act does not apply to them.

The remaining question is whether the mortgage in respect of which the decree was passed comes within Section 4(d) of the Act, that is to say,

whether it is a debt contracted on the security of house property alone in a Municipality. The relevant clause of the mortgage deed recites certain

boundaries within which the one-fourth share of two items is conveyed. The first item is a vacant site (Kalimanai Nilam) in the south-western side,

its measurements being recited, and the second item is another site with a shop building thereon in the north-western side of the area within the

boundaries. The question is whether the first item, that is, the vacant site in the south-western side of this area, can be termed ""house property"". If it

can, then the mortgage is a debt contracted on the security of house property alone within a Municipality. If it cannot, then the inclusion of this

piece of unoccupied land within the mortgage takes the debt out of the exception recited in Section 4(d) and the debt as a whole comes within the

mischief of the Act. It is well established that the term ""house"" includes the land appurtenant to the house and necessary for its enjoyment. The

case-law on the subject is summarised in a Calcutta ruling, Ghosal v. Mitra (1910) 7 I.C. 436. It is contended that the term ""house property"" is a

wider term than the term ''house'' and that it will include not only land appurtenant to a house which is in existence, but also land earmarked for

house-building purposes. I doubt very much whether this contention is in accordance with ordinary English usage. When we speak of house

property, we certainly include buildings of all kinds and the sites thereof. We should probably also include the gardens, compounds and yards

attached thereto. But I doubt whether the ordinary connotation of the term ''house property'' in every-day language would include land earmarked

for building purposes, but unoccupied by any buildings. After all, it is a common experience to see agricultural land advertised for building or even

sold for building, but used for agriculture until it is actually converted to the purpose for which it is destined. To my mind, one would not in ordinary

English speak of agricultural land as house property merely because the owner thereof is trying to sell it or has sold it to a speculative builder.

Granted that the land is suitable for building houses and that there is an intention to build houses upon it, I do not think that it would be considered

to be ''house property'' until building operations had, at any rate, started. The alternative line of argument is that this site, item 1, is included in a

larger plot with certain boundaries and is adjacent to a site upon which there was actually a building at the time when the deed was executed. It is

contended that the building and its site and the vacant site adjacent to it must be deemed to be a single unit and that the whole will fall within the

term ''house property.'' Now, if in fact these two sites were a single unit, there would, I think, be some substance in this argument. But all the

materials available go to show that this is not the fact and that the house and its site on the north-western side were treated as a separate unit,

separately recited in the mortgage deed, separately assessed in the union registers and separately numbered for the purpose of assessment. There

is nothing to show that the vacant site in the south-western corner was treated as part of the property upon which the house stands. The fact seems

to be that the two plots had been separately demarcated; in one of them at the time when this mortgage was executed a house had been built, the

other was destined for building purposes, but was still vacant. In fact a house, I am told, has been constructed since the mortgage came into force.

This fact alone is an indication that the vacant site was not at the time of the mortgage a part of the compound of the existing house. If, as seems to

be the case, it was a separate unit, a piece of land with no building upon it, though destined for building purposes, it would not, in my opinion, be

properly described as house property and the inclusion of this site is therefore sufficient to prevent this mortgage from being immune from the

operations of the Agriculturists Relief Act.

I find therefore that the petitioners (judgment-debtors) are entitled to have the decree scaled down in accordance with Section 8 of the Act, the

mortgage being one of 1924.

The decree will therefore be amended accordingly. The petitioners will be entitled to their costs in this petition.

Leave to appeal is refused.