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Mallanna and ors. Vs. Eramma and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 190 of 1968
Judge
Reported inAIR1970Kant84; AIR1970Mys84; (1969)2MysLJ222
ActsCode of Civil Procedure (CPC), 1908 - Sections 100 and 101 - Order 22, Rule 4; Transfer of Property Act, 1882 - Sections 62; Mysore Agricultural Debtors Relief Act, 1966 - Sections 2, 18 and 18(1)
AppellantMallanna and ors.
RespondentEramma and ors.
Appellant AdvocateB.V. Deshpande, Adv.
Respondent AdvocateK. Jagannath Shetty, Adv.
Excerpt:
.....1,49,000/- awarded by tribunal was reduced to rs. 20,000/- with interest at 8 & p.a. - 6. the defendants were permitted by the court of first instance to examine another expert on an application made at an inordinately late stage, and it is their own fault if the defendants failed to avail themselves of the opportunity so made available to them. but this contention has to fail for the reason that, if, not all the representatives were brought on record the suit does not fail and it has to continue against those persons who have been impleaded as legal representatives against whom an effectual decision which binds them could be made. 2 and the 4th plaintiff, but because he thought that allowance should be made for factors such as failure of crops, scarcity of rainfall and so on and so.....1. the appellants are the defendants who were sued by the plaintiffs for possession and mesne profits with respect to a land which had been mortgaged by a certain hanumavva who was the mother-in-law of the first plaintiff and the grand-mother of others. the case of the plaintiffs was that the mortgage was a self redeeming mortgage, and that the liability under the mortgage deed had come to an end after the expiry of the stipulated period. the defendants resisted the suit on more than one ground, but the court of first instance overruled their defence and made a decree in favour of the plaintiffs for possession and mesne profits at rs. 200 a year.2. from that decree there was an appeal by the defendants and a cross-objection by the plaintiffs with respect to mesne profits awarded which,.....
Judgment:

1. The appellants are the defendants who were sued by the plaintiffs for possession and mesne profits with respect to a land which had been mortgaged by a certain Hanumavva who was the mother-in-law of the first plaintiff and the grand-mother of others. The case of the plaintiffs was that the mortgage was a self redeeming mortgage, and that the liability under the mortgage deed had come to an end after the expiry of the stipulated period. The defendants resisted the suit on more than one ground, but the Court of first instance overruled their defence and made a decree in favour of the plaintiffs for possession and mesne profits at Rs. 200 a year.

2. From that decree there was an appeal by the defendants and a cross-objection by the plaintiffs with respect to mesne profits awarded which, according to the plaintiffs, were not sufficiently adequate. The lower appellate Court dismissed the appeal preferred by the defendants and allowed the cross-objection and enhanced the mesne profits to a sum calculated at Rs. 400 a year.

3. The defendants appeal.

4. Mr. Deshpande appearing for the defendants urged before me that the Courts below were in error in overruling the pleas raised by the defendants in their written statement. The first submission made by him was that notwithstanding the discharge of the mortgage debt after the expiry of the stipulated period, the plaintiffs were not entitled to recover possession since there was an agreement of sale executed in favour of the defendants under which possession of the suit land had to continue with the defendants. But the Courts below recorded a finding that the agreement of sale produced by the defendants was not a genuine document, and that finding being a finding on a pure question of fact is not open to discussion in this Court.

5. There is no substance in the argument advanced by Sri Deshpande that the decrees of the Courts below are contrary to law by reason of the refusal by the Court of first instance to accord permission for the examination of another handwriting expert to elicit opinion contrary to the hand-writing expert's opinion which had been made available by the plaintiffs.

6. The defendants were permitted by the Court of first instance to examine another expert on an application made at an inordinately late stage, and it is their own fault if the defendants failed to avail themselves of the opportunity so made available to them.

7. It was next contended that since the suit land was the stridhana property of the deceased Hanumavva, her daughters became entitled to it after her death, and that the suit brought by the daughter-in-law and the son's sons of Hanumavva was not maintainable. But Mr. Deshpande had to abandon this argument since he had to admit that the suit land, although it was the stridhana property of Hanumavva, did not become her absolute property and on her death it reverted to the heirs of her father.

8. It was next urged that not all the legal representatives of defendant 2 were brought on the record after his death, but his brother and son were the only persons impleaded as legal representatives, although the wife and the daughter should have also been added as legal representatives. But this contention has to fail for the reason that, if, not all the representatives were brought on record the suit does not fail and it has to continue against those persons who have been impleaded as legal representatives against whom an effectual decision which binds them could be made.

9. It was again submitted that a suit for redemption should have been brought, but this contention can have no legs to stand upon since the finding of the Courts below is that the mortgage debt stood discharged in consequence of the self redeeming mortgage. It is pointless for any one to urge that in that situation the redemption of the mortgage which no longer existed, should have been sought.

10. So the decree for possession made by the Courts below, is, in my opinion, unexceptionable and must be confirmed.

11. The next branch of the argument concerned mesne profits which, as I have already observed, were awarded at Rs. 200 by the Munsiff and at Rs. 400 by the Civil Judge. Mr. Deshpande in making the criticism of the enhancement made by the Civil Judge, found himself in great difficulty at more than one stage. He first made the submission that the Civil Judge enhanced the mesne profits without there being any evidence to support the enhancement. But he had to withdraw from that submission when it was pointed out to him that the Civil Judge did allude to the evidence of the 4th plaintiff and that given by P. W. 2 both of whom gave evidence that the income from the suit land was 60 bags of jawar a year. Mr. Deshpande did not dispute that the price of each bag of jawar at the relevant point of time was Rs. 30 and so, the effect of the evidence given by both these witnesses was that the manual income was in the neighbourhood of Rs. 1,800 a year.

12. When confronted with this difficulty Mr. Deshpande modified his submission and argued that, although the Civil Judge had disbelieved the evidence of P. W. 2 and the 4th plaintiff, he nevertheless made a decree for enhancement. But here again it transpires that Mr. Deshpande was not right, since the Civil Judge said nowhere in his judgment that he did not believethe evidence of these witnesses. On the contrary the relevant discussion makes it clear that he did place dependence upon the evidence of both these witnesses and that the basis for the enhancement which he made was the evidence given by them. Mr. Deshpande cannot draw any substance for his argument that the Civil Judge did not believe the evidence of these two witnesses, from the fact that the Civil Judge did not allow the whole of the mesne profits claimed by the plaintiffs, but gave them only half of what they had claimed.

13. The argument advanced by Mr. Deshpande that the Civil Judge acted arbitrarily without the support of any evidence, overlooks the fact that the Civil Judge gave a smaller sum of money towards mesne profits not because he did not believe the evidence of P. W. 2 and the 4th plaintiff, but because he thought that allowance should be made for factors such as failure of crops, scarcity of rainfall and so on and so forth. The criticism of the enhancement made by the Civil Judge is, in my opinion, unreasonable and so unacceptable.

14. The last argument that Was placed before me was that even so the provisions of Section 18 (1) of the Mysore Agricultural Debtors Relief Act, 1966 which came into force on April 1, 1969 made it incumbent on this Court to transfer that part of the appeal which concerns the liability to mesne profits to the Agricultural Debtors Relief Act Court functioning under that Act. That section reads :--

'18. Transfer of pending suits, appeals, applications and proceedings to the Court.

(1) All suits, appeals, applications for execution and proceedings in respect of any debt pending in any Civil or Revenue Court shall, when they involve the questions whether the person from whom such debt is due is a debtor, and whether the total amount of debts due from him exceeds twenty thousand rupees, be transferred to the Court.

* * * *'

15. It was asserted by Mr. Deshpande that the question which the issue appertaining to mesne profits necessarily involved is whether the original defendants and the legal representatives of the second defendant are debtors, and so, the transfer of the issue concerning mesne profits which is presented by this appeal for decision must stand transferred to the Court functioning under the Act. In support of this submission reliance was placed on the definition of the words 'debt' contained in Section 2 which reads:--

'2(4) 'debt' means any liability in cash or kind, whether secured or unsecured, due from a debtor, whether payable under a decree or order of any Civil Court or otherwise and includes mortgage money, the payment of which is secured by theusufructuary mortgage of immovable property but does not include arrears of wages, payable in respect of agricultural or manual labour, or any liability for the recovery of which remedy is barred by limitation;

(5) 'debtor' means-

(a) an individual-

(i) who is indebted;

(ii) who holds land used for agricultural purposes or has held such land at any time not more than thirty years before 30th January 1960, which land has been transferred, whether under any instrument or not, and which transfer is in the nature of a mortgage, although not purporting to be so;

(iii) who has been cultivating land personally for the cultivating seasons in the two years immediately preceding the date of the coming into operation of this Act; and

(iv) whose annual income from sources other than agriculture and manual labour does not exceed one-third of his total annual income or Rs. 1,000 whichever is greater, and whose aggregate annual income from all sources does not exceed Rs. 5,000.

The other parts of the definition of a 'debtor' are not material since no dependence was placed on those parts of the definition.

16. It is seen from the definition of the word 'debtor' that an individual is a debtor for the purposes of the Act only when all the four conditions enumerated in Sub-clause (a) of Clause (5) of Section 2 of the Act cumulatively exist. The definition in Sub-clause (b) which relates to an undivided Hindu family has no relevance since the defendants on whose behalf Mr. Deshpande advanced the argument are individuals falling within Sub-clause (a) of Clause 5 of Section 2 of the Act. Those individuals could claim the status of a debtor under the Act only if, firstly they are indebted, secondly if they held lands during the periods specified in that clause, thirdly if they have been cultivating the land personally during the two years to which that clause refers, and lastly if their annual income does not exceed the specified amount. The existence of all these attributes is indispensable to impress upon an individual the character of a debtor under the Act within the meaning of the Act.

17. Section 18 which enjoins the transfer of certain pending proceedings whether in a suit, or in an appeal or in other proceeding, can have application only if the pending proceeding involves the question whether the person against whom that proceeding was instituted was a debtor within the meaning of the Act. The other part of that section which speaks of the total amount of the debt has no materiality to the present discussion.

18. It cannot be said that the secondappeal before me involves any question as to whether the appellants in this appeal are debtors within the meaning of the Act. That question would have arisen if they had raised a plea that they conformed to the description of a debtor contained in Sub-clause (a) of Clause (5) of Section 2 of the Act. No such plea was raised in the pleadings for the obvious reason that the Act came into force only on April 1, 1969 and the suit had been instituted long before it commenced to operate. But whatever may be the reason for which the plea was not raised and no claim was made to the status of a debtor within the meaning of the Act, what cannot be overlooked is that there is no such claim involved in this second appeal, and so, it does not fall within Section 18 of the Act,

19. But Mr. Deshpande for the first time produced a memo before me to-day in which there is an assertion that the appellants are debtors within the meaning of the Act. The memo states particulars with respect to all the matters of which Sub-clause (5) of Section 2 of the Act speaks, and, I cannot take cognizance of the facts mentioned for the first time during the arguments, unless the appellants are permitted to amend the written statement, and, no such application has been made before me, or could be granted at this belated stage. The production of a memo which is signed only by the advocate for the defendants who could have no personal knowledge of the truth of the statements contained therein, cannot transform an appeal which does not involve any question such as the one to which Section 18 refers, to one falling within it.

20. I dismiss this appeal with costs.

21. Appeal dismissed.


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