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N.M. Rayalu Iyer Nagaswami Iyer and Co., Through One of Its Partners, N.M.R. Venkatakrishna Aiyar and anr. Vs. Ambalam Shanmugham Chettiar - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 644 of 1946
Judge
Reported inAIR1951Mad107; (1951)IMLJ153
ActsDebt Laws; Madras Agriculturists Relief Act, 1938 - Sections 6 and 14; Code of Civil Procedure (CPC) - Order 34, Rule 6; Usurious Loans Act, 1918 - Sections 3(1)
AppellantN.M. Rayalu Iyer Nagaswami Iyer and Co., Through One of Its Partners, N.M.R. Venkatakrishna Aiyar
RespondentAmbalam Shanmugham Chettiar
Appellant AdvocateC.S. Rama Rao Saheb, Adv.
Respondent AdvocateK.S. Ramabhadra Aiyar, Adv.
Cases ReferredNalanunni v. Dakshayani Amma
Excerpt:
property - personal decree - sections 6 and 14 of madras agriculturists relief act, 1938, section 3 of usurious loans act, 1918 and order 34 rule 6 of code of civil procedure, 1908 - whether personal decree obtained on mortgage against executant who is non-agriculturist member of family attract application of section 14 - executant may be personally liable but debt which he undertakes to discharge is family debt - ultimate liability to discharge such debt rests on family - section 14 is applicable to non-agriculturist member of family in regard to personal decree obtained against him in respect of balance of family debt. - - rama rao saheb, that the decree remaining be be satisfied being only a personal decree against defb. 1 it does not attract the provisions of section 14 of the.....orderchandra, beddi, j. 1. this is an appeal from the judgment of! the principal subordinate judge of madura in i. a. no. 11 of 1945. this appeal involves the interpretation of section 14 of act iv [4] of 1938. 2. the facts of the case are not in dispute. for an appreciation of the question that arises for decision in this appeal a few material facts may be stated. a mtge. was'exeeuted by deft. 1 for himself & as the guardian of his son, deft. 2 in september 1921 for a sum of rs. 50,000. as the debt was not discharged, the mtgee. filed a suit o. s. no. 114 of 1925 on the file of the sub-ct. madura, on foot of the mtge. against defts. 1 & 2 on the basis that the properties mortgaged were the self-acquired properties of deft. 1 though the father of deft. 1, thothan chetti, & his paternal.....
Judgment:
ORDER

Chandra, Beddi, J.

1. This is an appeal from the judgment of! the Principal Subordinate Judge of Madura in I. A. No. 11 of 1945. This appeal involves the interpretation of Section 14 of Act IV [4] of 1938.

2. The facts of the case are not in dispute. For an appreciation of the question that arises for decision in this appeal a few material facts may be stated. A mtge. was'exeeuted by deft. 1 for himself & as the guardian of his son, deft. 2 in September 1921 for a sum of Rs. 50,000. As the debt was not discharged, the mtgee. filed a suit O. S. no. 114 of 1925 on the file of the Sub-Ct. Madura, on foot of the mtge. against defts. 1 & 2 on the basis that the properties mortgaged were the self-acquired properties of deft. 1 though the father of deft. 1, Thothan Chetti, & his paternal uncle were alive. During the pendency of that suit Thothan Chetti, the father, & Muthuvedugan Chetti, the uncle, filed two applns., I. A. Nos. 159 and 160 of 1926 to get themselves impleaded as parties to that suit alleging that the properties mortgaged werejoint family properties, & that Tbothan Chetti was the manager of the family. These applications were dismissed on the ground that the properties wore mortgaged as the self-acquired properties of deft. 1 & that the appeets. were claiming a title paramount to the mtgor.

3. In January 1930 the Ct. passed a decree for sale as against deft l but dismissed the suit so far as deft. 2 was concerned on the ground that the mtge. was not binding on him. The matter was oarried in appeal to the H. C. which confirmed the decree against deft l & passed a simple money decree against deft. 2 to the exbent of his share in the family property holding that the mtge. as such was not binding on him.

4. In execution of the mtge. decree passed by the Sub-Ct. against deft. 1 a sum of Rs. 42,513 was realised by bringing to sale his share of the property in E. P. No. 48 of 1931 on 3-10-1931. Another sum of Ra. 2,4300 was realised in execution of the money decree passed against deft. 2 by bringing his interest in the mortgaged properties to sale in E. P. No. 55 of 1935 on 13-7-1936. In further execution various sums amounting to Rs. 6070-7-9 were realised between 11-7-1941 & 13-9-1943. After deft. 1's share of the mortgaged property was sold in E. P. no. 48 of 1931 the pltf. obtained a personal decree in November 1932 under Ex. D 2 for a Sum of Rs. 1,14,898-7-9 against deft. 1.

5. The pltf. who purchased these properties. in Ct. auction filed O. S. No. 75 of 1934 on the same mtge. against Thothan Chetti, Muthuvadugan Chetti & others for a decree for sale of their interest in the mtge. properties on the basis that the properties mortgaged were the joint family properties of the entire family. The Ct. holding that the mtge. was binding on Thothan Chetti as it was executed by deft. 1 as the ds facto manager of the family & for binding purposes, paaaed a mtge. decree against Thothan Chetti for the full amount deducting the amounts already realised in execution of the decree in o. Section no. 114 of 1925. It also held that Muthuvadugan Chetti had become divided & had therefore no interest in the mortgaged properties. Thothan Chetti sought relief under Madras Act IV [4] of 1938 as by the time the judgment was pronounced the Act had come into force; but he was refused relief under the Act as it was found that deft. 1 who was bhe de facto manager was assessed to house tax on an annual rental of more bhan RS. 600. Againsb the judgment of the Subordinate Judge, there was an appeal to the H. C. with while confirming the decree of the trial Ct. held that Thothan Chetti was entitled to the benefit of the provisions of the Madras Agriculturists Relief Act,as deft l mast be deemed to have boon assesed to property tax only as an individual & that the joint family was not disqualified from claiming relief under the Act. In bhe result relief was granted to Thothan Chetti under Sections 8 & 14 of bhe Act, & he was thereby made liable only for a moiety of the principal amount.

6. It may be mentioned that deft. 1 also applied to the Ct. which passed the decree against them for scaling down bhe debt under Sections 18 & 19 of the Act as soon as Madras Act IV [4] of 1938 came into force; but that petn. was dismissed as deft. 1 was not an agriculturists as defined in the Act, since he was assessed to house tax on an annual rental value of more bhan Rs. 600.

7. I. A. No. 11 of 1935 which has given rise to the present appeal was filed by deft. 1 under Sections 8 and 14 of the Act for scaling down the debt after the judgment of the H. C. in O. S. No. 75 of 1934 granting relief to Thothan Chetti under the same provisions of bhe Act. This appln. was opposed by the pltf. on various grounds, the main ground being that bhe decree now subsisting was a personal decree againsb deft. 1 & not a family debb so as to attract the application of Section 14 of bhe Act. The trial Ct. overruling bhe objections raised on behalf of the pltf. granted relief to deft. 1 under Section 14 of the Act declaring that he would be liable only for a moiety of the decree amount, after giving credib for the various amounts realised in exeoction of the decree. The pltf. has preferred the present appeal against this order of the learned Subordinate Judge.

8. It was argued before us on behalf of the applt. by his learned counsel, Mr. Rama Rao Saheb, that the decree remaining be be satisfied being only a personal decree against defb. 1 it does not attract the provisions of Section 14 of the Act IV [4] of 1938. According to the learned counsel, Sub-section (a) of Section 14 applies only to a case where bhe share of a non-agriculturists memher in the family properby is sought to be proceeded against in respect of his share of the family property & not to a case like the present where there is only a personal liability against the non-agriculturist member.

9. In support of his contention that the personal liability of the mtgor. is not affected by the provisions of Section 14 of bhe Act, bhe learned-counsel for the applb. cited be us two decisions, one reported in Jagannatha Aiyangar v. Subiah Chettiar : (1940)2MLJ187 , and the other in Nalanunni v. Dakshayarani Ammal : (1942)1MLJ418 . Before I proceed to examine the oaaea cited before us I proposeto set out the provisions of Section 14 of the Act, Section 14 provides:

'Notwithstanding anything contained in Section 3 (ii) & subject to the provisions of Sections 5 & 6, where in a Hindu family, whether divided or undivided, some of the members liable in respect of a family debt are not agriculturists while others are agriculturists, the creditor shall, notwithstanding any law to the contrary, be entitled to proceed :

(a) against the non-agriculturist member or members & his or their share of the family property, to the extent only of his or their proportionate share of the debt ; &

(b) against the agriculturist member or members & his or their share of the family property, to the extent only of his or their proportionate share of the debt which shall be scaled down in accordance with the provisions of this Act.'

Of the two decisions relied on by the learned counsel for the applt. the first is no authority for his proposition. The facts of that case are the following : A personal decree was obtained against defts. 1 to 5 on a promissory note executed by them for a debt binding on the family. Defendants 6 to 7 who did not join the execution of the promissory note were also made liable as the debt was binding on the family. Defendants 3 to 7 applied for scaling down the debt & it was accordingly scaled down under Section 8 of the Act. Having regard to the fact that deft. 1 was adjudged an insolvent & deft. 2 ceased to have any interest in the family the question arose whether the creditor could proceed individually against each of the judgment-debtors of his share of the debt, & whether Section 14 of the Act was applicable or not. The lower Ct. held that Section 14 had no application to the case as it was a contractual debt & not a family debt. While revising that judgment, Horwill J, held that if a debt is a family debt, it must be a family debt with regard to every member of the family & that where there are agriculturists as well as non-agriculturist members in a joint Hindu family, the agriculrist members thereof were liable for their share of the acaled down debt as a group, while the latter were liable for this share unsealed down debt as another group. So there is nothing in that decision on which reliance could be placed by the learned counsel for the applt. But the caae reported in Nalanunni v. Dhakshayayani Ammal : (1942)1MLJ418 lends support to the argument advanced by him. In that case, one of the questions that arose for decision was whether the personal liability of the executants of a promissory note who were sued on the note along with the other members of the family was covered by Section 14 of the Act. The argument that Section 14 applies only to the liability of a member in respect of his share of the family property & does not affect his personal liability foundfavour with the learned Judges & they held that the operation of Section 14 did not in any way affect the personal liability of the executants of the promissory note.

10. In coming to that conclusion the reasoning adopted by the learned Judges was that the acceptance of the other interpretation would necessarily involve reading into the section some qualifying words to the effect that the creditor shall be entitled to proceed personally only if he can claim a personal remedy against the debtor & that it also involved

'the creation of a liability which does not exist in the contract, in order to limit a contractual liability in favour of a class of persons whom the Act was not specifically designed to benefit.'

They further observed that the word 'and' in the phrase 'member or members and his or their share' must be read as equivalent to 'in respect of' & that Section 14 must be read as relating only to the liability of such a member in respect of his share of the family property. It was the opinion of the learned Judges that the interpretation adopted by them would involve the least deviation from the language & the apparent scope of the section. With this view I express my respectful agreement. In my opinion by construing Section 14 in that manner we have to import words & meaning into that section which it does not contain.

11. It appears to me that the apparent scope of the section is that the agriculturist or non-agriculturist member who is liable in respect of a family debt can be made liable only to the extent of his share of the debt, irrespective of the nature of the liability. The section does not seem to postulate the existence of a share in the family property as a condition precedent to his claiming in relief under the section. The debtor whether agriculturist or non-agriculturist can seek the benefit of the provisions of Section 14, whether the liability is a personal one or that of the property, so long as the liability is annexed to the family debt. I think the intendment of the section is that a creditor can proceed against a non-agriculturist member or members of a family for a family debt, both againat him or them & his or their share in the family property only to the extent of his or their proportionate share of the debt. It only means that whether the creditor seeks to proceed personally against the agriculturist or non-agriculturist member of the family or against his share in the family property, he could do it only to the extent of his share of the debb. I believe that this section deals with the apportionment of liability of a family debt between agriculturist and non-agriculturist members of the family, the agriculturist members being made liable inrespect of their share of the scaled down debt, while the non-agriculturist members are answerable to their share of the debt as not scaled down. I am therefore unable to accept the principle laid down in Nalanunni v. Dhakshayayctni Ammal : (1942)1MLJ418 ,

12. As I am inclined to take a view different from that taken by tbe learned Judges in that case with regard to the construction of Section 14 of Act IV [4] of 1938, & having regard to the frequency with which the matter arises for decision I consider that the matter should be placed before my Lord the Chief Justice for referring the following for decision by a Full Bench :

'When there is a personal decree obtained on a mtge. against the executant thereof, who is a non-agriculturist member of the family, does it attract the application of Section 14 of Madras Act IV [4] of 1938.'

Subba Rao, J.

13. I agree with my learned brother that the question may be referred to a Full Bench. The facts have been fully stated by the Subordinate Judge & also by my learned brother in his judgment & it is not, therefore, necessary to restate them. As wo are differing from the judgment of a Bench of this Ct. in Nalanunni v. Dkakskayayani Ammal : (1942)1MLJ418 I think it is as well that I give some of my reasons for doing so.

14. The relevant section of the Madras Agriculturists Relief Act reads as follows :

'Notwithstanding anything contained in Section 3 (ii) & subject to the provisions of Sections 5 & 6, where in a Hindu family, whether divided or undivided, some of the members liable in respect of a family debt are not agriculturists while others are agriculturists, the creditor shall, notwithstanding any law to the contrary, be entitled to proceed -

(a) against the non-agriculturist member or members & his or their share of the family property, to the extent only of his or their proportionate share of the debt ; &

(b) against the agriculturist member or members & his or their share of the family property, to the extent only of his or their proportionate share of the debt which shall be scaled down in accordance with the provisions of this Act.'

The section applies if two conditions are complied with, (1) The debt is a family debt (2) some of the debtors are agriculturists & others are non-agriculturists. Under the section the creditors is empowered to proceed against a non-agriculturist member & his share of the family property in regard to his share of the unsealed debt & against the agriculturist & his share of the family property in regard to his share of the scaled down debt. The debt is split up notwithstanding any law to the contrary. Tbe principle behind this seation is apparent. it is obviously designed to give relief for a non-agriculturist member of a family from beingoverburdened or unnecessarily harassed by reason of the debt being scaled down in regard to the agriculturist member of the family. But forthe section the creditor would be entitled to proceed to recover the entire debt against the share of the non-agriculturist member. A heavy burden would be caat on tbe non-agriculturist member of the family. By reason of this section the family debt is apportioned & the necessary relief given to tbe non-agriculturist member.

15. The learned advocate relied upon the aforesaid decision & contended that as there was a personal decree against the resp , Section 14 ceased to have any application. No doubt, that judgment goes a long way in supporting this contention. But an essential distinction between that case & the case before us may be pointed out. The suit in that case was brought on a promissory note executed by some of the members of a family in regard to a family debt binding on the tavazhi of which the defts. were members. There was a decree against the executants personally & against others to be realised from & out of the family assets. So far as the executants were concerned, they were liable to pay the debt apart from the family debt. In the present case, the respondent was one of the executants of the mtge. deed. Farther, at its origin, at the time the final decree for sale was passed, & even after tbe personal decree was obtained, the debt continued to be a family debt. The personal decree under Order 34, Givil P. C., is only a mode of realising the family debt after tbe mtged. properties are exhausted. Under that decree, not only tbe debtor's separate properties but also his share in the other family properties not covered by the mtge. can be proceeded against. That decision may therefore be distinguished on the ground that in that case there was a personal liability, apart from the family liability, whereas in the present case the personal liability is only the working out of the family liability merged in the decree.

16. Apart from this distinction on facts, with great respect, I cannot agree with the reasons given by the learned Judges in support of their conclusion. The learned Judges noticed that in the most literal interpretation the section would seem to mean that whatever the nature of the liability, so long as it was annexed to the family debt, both the personal property of the non-agriculturist & bis share of the family property would be liable only to the extent of his proportionate share of the debt. If so, I fail to see why the literal interpretation should not be accepted, especially as in my opinion, the intention of the Legislature would be given full effect to. The learned Judges gave the follow-ing two reasons for not accepting the literal interpretation. (1) The section cannot be readas imposing a personal liability regardless of the nature of the contract in which the debt is embodied. (2) The apportionment of joint liability between agriculturists & non-agriculturistsis really not a matter arising with reference tothe personal liability of the actual executants. Therefore, to effectuate the supposed intentionof the Legislature, the learned Judges read into the section the words 'in respect of his ortheir share.' I do not think that by giving theliteral interpretation the Ct. is imposing any personal liability, regardless of the nature ofthe contract in which the debt is embodied. The section cannot be understood to impose a personal liability where there is none, but onlyto cover those oases where personal liabilityexisted either under a contract or in law.

17. The second reason also does not appearto me to be sound. The splitting up of the debt provided under the section depends upon thenature of the debt & not upon the character of the properties sought to be proceeded againstfor the debt. If the debt is a family debt, the liability is split up & only proportionate sharesof the debt would be realised from the debtors or from their shares of the joint family properties. In my opinion the intention of bhe Legislature could be given full effect to by accepting the plain meaning of the words used rather than assuming the intention of the Legislature& adding words in the section which are not there. The interpretation of the section accepted by the learned Judges would defeat theobject of the Legislature. It would enable thecreditor to realise the entire unsealed debt from the other properties of the non-agriculturist. If this argument is accepted it will lead to anomalous & startling results. The non-agriculturist will not only be liable to his share of the debt but also may be made liable personally for the entice debt. The extent of his liability will depend upon the fact whether he applied for the relief before or after the mtge. properties were sold away for realisingthe debt. It may be argued that even if the appln. under Section 14 was filed prior to the sale ofthe properties, the relief under Section 14 should beconfined only to the decree on the mtge. The decision is also based on bhe assumption that thecharacter of the debt is changed after the personal decrfe was passed. If, on the other hand, theinterprebabion suggested by me is accepted, notonly bhe literal inberpretation would be given but the secbion would be worked oub smoothly &equitably.; The debb would be split up according to the shares of non-agriculturist & agriculturist members & if the debb so allocated is not satis-fied by the sale of bhe share of the members the debtors, as the case may be, will be personally liable if that relief is otherwise available to the creditor.

18. For the foregoing reasons, I agree for referring the question of law for the Full Bench.

OPINION

Subba Rao, J.

19. The question referred to the Full Bench is :

'When there is a personal decree obtained on a mtge. against the executant thereof, who is a non-agriculturist member of a family, does it attract the application of Section 14 of Madras Act IV [4] of 1938 ?'

The facts are fully stated in the order at reference & they need not be restated at length. It would be enough if relevant facts necessary to appreciate the question referred be the Full Bench are noticed. Thobhan Chetti is the father of Vyravan Chetti. Shanmugham Chetti is the son of Vyravan Chetti. Muthuvedugan Chetti is the divided brother of Thothan Chetti. Vyravan Chetti was the de facto manager of the family & in that capacity he executed a mtge. deed in favour of the pltf. in September 1921. The mtgee. instituted O. S. No. 114 of 1925 on the file of bhe Ct. of the Subordinate Judge of Mabhurai against Vyravan Chebti & his son, who were defts. 1 & 2 in that suit. He obtained a mtge. decree against deft. 1 & a money decree against deft. 2. Another suit was filed by the pltf. being O. S. No. 75 of 1934 on the file of the Sub Ct. Mathurai, on the same mtge. against Thothan Chetti & Muthuvadugan Cetti. In that suit is was held that Muthuvadugan Chetti had become divided from bhe family & therefore he was not liable, but a decree was given against Thothan Chetti on the ground that his son Vyravan Chetti was the de facto manager of the family when he executed the mtge. deed. The decree obtained against Thothan Chebti was scaled down under the provisions of the Madras Agriculturists Relief Act & a decree was given against him for Rs. 25,000 being half of the principal amounb with interest at 6 1/4 per cent from 1-10-1937. Meanwhile, bhe decree against Vyravan Chetti was executed & large amounts were realised by selling the mtge. properties. For the balance of the amounts due, namely, Rs. 1,14,000 & odd, the pltf. obbained a personal decree against Vyravan Chebtiar in November 1932. Vyravan Chettiar filed I. A. no. 11 of 1945 for relief under Section 14, Madras Agriculturists Eelief Act. His son filed I. A. No. 161 of 1945 for similar relief. Vyravan Chettiar is not an agrieulburist, but the son is an agriculturist. But under Section 6 if any member of an undivided Hindu family is not an agriculturist,none of bis sons & descendants in the male line shall be deemed to be an agriculturist. So, it is not disputed that defts. 1 & 2 should be treated as one unit for the application of Section 14, Madras Agriculturists Relief Act. It is also conceded that for the purpose of this reference, both the suits may be treated as one & arguments were addressed on the assumption that there was only one mtge. decree for a family debt against deft. 1 his son & his father & a personal decree alone against deft. l. The position, therefore, is that the judgment-debtor Thothan Chetti is an agriculturist, but the said Vyravan Chetti & his son Shanmugha are non-agriculturists. There is a personal decree only against Vyravan Chetti, deft. 1. Section 14, Madras Agriculturists Relief Act, reads :

'Notwithstanding anything contained in Section 3 (2) & subject to the provisions of Sections 5 & 6 where in a Hindu family, whether divided or undivided, some of the members liable in respect of a family debt are not agriculturists while others are agriculturists, the creditor, shall, notwithstanding any law to the contrary be entitled to proceed :

(a) against the non-agriculturist member or members & his or their share of the family property, to the extent only of his or their proportionate share of the debt; &

(b) against the agriculturist member or members & his or their share of the family property, to the extent only of his or their proportionate share of the debt which shall be sealed down in accordance with the provisions of this Act.'

20. Mr. Rama Rao Sahib's argument may he put thus: The basic condition for the application of the section is that there must be a family debt liable to be realised from & out of the family assets. In such a case, if there are agriculturist & non-agriculturist members of a family who are judgment-debtors, the members of the family will be divided into two groups--agriculturist & non-agriculturist--& the family debt will be divided proportionate to the share of each group. The creditor will he entitled to recover the share of the debt of each group from the share of the properties of group. The section has no application when the creditor seeks to execute the personal decree obtained by him against the non-agriculturist member, as it does not purport to deal or provide for obligations arising out of contracts personally entered into by the members of the family. This result he bases upon the words: 'in respect of a family debt' within the section & on the words 'against the non-agriculturist member or members & his or their share of the family property' in Clause (a) of Section 14. Emphasis is also laid upon the words 'their share' in Clauses (a) & (b). He contends that the construction suggested by him will accord with the dominant intention of the Legislature to give relief only to agriculturists,I shall now proceed to consider the soundness of the contention on the plain meaning of the clear words used in the section. The basic fact for the application of Section 14 is that the members should be liable 'in respect of a family debt' the words, be it noted, are not 'liable for a family debt', but 'liable in respect of a family debt'. The words are certainly wider in connotation and take in every liability, which is in effect and in substance a family debt. In the present case, the debt was in its inception and also continued to be a family debt. It was contracted by the manager of the family for family purposes. The Court found it was a family debt. The personal decree was passed against the de facto manager, who could, in the circumstances, be treated as representing the family. Even otherwise, the personal decree obtained against deft. 1 is only a mode of working out the family debt. It is passed for the recovery of the balance of the family debt, which could not be fully realised by the sale of the family properties and its character is also not lost, as, in the ultimate analysis, the entire family is bound by the debt. If it is a family debt, I do not find any difficulty in applying Clauses (a) & (b) of Section 14. Mr. Rama Rao Sahib's contention is the words 'against the non-agriculturist member or members and his or their share of the family property' in Clause (a) and the words 'against the agriculturist member or members and his or their share of the family property' in Clause (b) mean against the non-agriculturits member or the agriculturist member as the case may be in respect of the share of the family property. This construction is not only contrary to the plain meaning of the express words used, but does violence to the language itself. I cannot read into the clauses words which are not there, espeoially when without adding such words the section is intelligible & each part thereof is reconcilable. Clauses (a) & (b) only mean that in the contingency contemplated by the section, the creditor shall be entitled to proceed both against the member or members personally if there is a personal obligation and against his or their property in the case of property obligation of the family. To my mind, the use of the singular 'share' also does not create any difficulty. The contention is by reason of the use of the singular 'share' in Clauses (a) & (b) of Section 14, the personal liability of the executant cannot be separately worked out apart from the group of non-agriculturists of which he would be a component part, for, it would lead to complications if in one group some of the judgment-debtors are under personal liability and others under property liability. This complication, ifI may say so, is not created by the section, but by the ingenuity of the arguments advanced before us. Under Section 3 (35), Madras General Clauses Act, words in the singular shall include, the plural & words in the plural shall include the singular. Therefore, there is no difficulty, in construing the word 'share' as to mean 'shares' when circumstances demand. If so construed, this objection disappears. In support of his contention the learned counsel relied upon the decision of Wadsworth and Patanjali Sastri JJ. in Nalaunni v. Dakshayani Amma : (1942)1MLJ418 . It certainly lends support to his argument. In that case a promissory note was executed by 13 defts., who were all members of a tavazhi for a family debt. The tavazhi consisted of 25 members. There was a personal decree against the executant of the promissory note and a property liability against the non-executant members of the family. It was argued that Section 14 had no application in regard to the personal liability of the executants. The learned Judges observe :

'In the moat literal interpretation, it would seem to mean that whatever the nature of the liability, so long as it is annexed to the family debt, both the personal property of the non-agriculturist and his share of the family property would be liable only to the extent of his proportionate share of the debt. But surely the section cannot be read as imposing a personal liability regardless of the nature of the contract in which the debt is embodied. If the section is intended at all to govern the personal liability of the agriculturist members of a family, we must necessarily read into it some qualifying words to the effect that the creditor shall be entitled to proceed personally only if he can claim a personal remedy against the debtor.'

21. For construing the section in the manner stated above, they have read the word 'and' in the phrase 'member or members and his or their share' as equivalent to 'in respect of'. They have read the words, as in the learned Judge's view the literal interpretation of the section would involve the creation of a liability, whioh does not exist in the contract, in order to limit a contractual liability in favour of a class of persons whom the Act was not specially designed to benefit. They assumed that the section was only intended for the benefit of the agriculturists and was concerned only with the liability of the family property. I do not think that the seetion is conceived entirely in the interests of the agriculturists. No doubt, the Agriculturists' Relief Act was enacted to provide for the relief of indebted agriculturists in the Province of Madras. But, at the same time, the Legislature took care to see that in applying the provisions of the Act for the benefit of the agriculturists, the non-agriculturists debtors are not prejudiced. Inenacting Section 14, it appears to me that the Legislature gave relief to the agriculturists & also lightened the burden cast on the non-agriculturists debtors as a consequence of the relief afforded to agriculturist members. If the debt is scaled down in respect of the agriculturist member of the family, but for the section the entire burden of the debt would fall on the non-agriculturist members & their property. Though the intention of the Legislature is to protect the agriculturist, certainly it is not its intention to increase the burden of the non-agriculturist debtors. To avoid this, Section 14 is enacted. Under that section, if there is a family debt & some of the members are agriculturists & others are non-agriculturists, the creditor is entitled to proceed for the proportionate share against the agriculturists & non-agriculturists as the case may be. Though the literal interpretation of the section may, in one sense, involve the creation of a liability, which does not exist in the contract, it does not really impose any fresh liability on the non-executant members of the family. If the debt was a family debt, tbe executants would be acting only on behalf of the members of the family. Though, in the first instance, the personal decree may be executed only against the executant & his properties, the ultimate liability of the family to the executant remains, The Legislature in enacting the section & in providing relief to the agriculturist might well have taken the ultimate liability of the entire family for apportionment between agriculturists & non-agriculturists members of the family. I cannot also accept the view of the learned Judges that the section is concerned only with the liability of the family property. The section is concerned with the liability 'in respect of a family debt' & the fact that in the working out of the provisions of the section, even assuming some unexpected results may flow, is not a ground for ignoring the plain provisions of the section. I cannot, therefore, accept the view of the learned Judges on the interpretation of Section 14 of the Act.

22. Whether a debt is a family debt or not, does not depend upon the personal liability cast on the executant. Documents on behalf of the family for a family debt are ordinarily executed by the manager de jure or de facto. Some time all the members of the family who have attained majority join in the document. The test to ascertain whether a debt is a family debt or not, depends upon the character of the debt, but not on the person who executes it, though in law the person executing the document makes himself personally liable, though ultimately the family would be bound to recouphim. The same Bench had considered the question, what is a family debt in connection with Section 8, Madras Agriculturists Relief Act. In the chain of renewals, though the documents were executed by different members of the family, the learned Judges held that if the debt is a family debt, the later document would be a renewal of the earlier one, though in law theexecutants are liable personally.

23. In Doraikannu Odayar v. Veerasami Padayachi : AIR1941Mad59 the facts are a purchaser of a hypotheca executed a promissory note to the mtgee. for the balance due under the mtge. The mtgee. obtained a decree under the promissory note against the maker & his sons as members of a joint family. In an appln. by the son for scaling down the decree, the learned Judges held that when a member of a joint family executes a fresh document for a pre-existing liability binding on the family, but incurred on its behalf by another member, such previous debt can be regarded as renewed or included in a fresh document within the meaning of the explanation to Section 8 of the Act.

24. In Vasudevan v. Unnimaya Anterjanam : AIR1942Mad298 , it was argued that when a individual coparcener makes himself personally liable for a joint family debt, it must be deemed that there are two liabilities due from two persons, one the liability due from the joint family 'person' & the other the liability due from the individual coparcener becoming liable under a subsequent note, & hence he cannot claim that his liability was in renewal of the earlier joint family liability. After negativing the said contention & holding that even in regard to his liability it was a renewal of the earlier family liability, the learned Judges observed at p. 89 :

'When we have a debb duo from a joint familyacknowledged by the execution of promissory notes by different coparceners, each is in fact on behalf of thefamily renewing a liability by which the family was bound under the previous documents executed by other coparceners. Although when it comes to the execution of the decree, the coparcener's personal properties mayonly be liable if he has personally signed the bond, he is in fact signing as a coparcener & as a coparcener he has been liable through the whole series of bonds.'

25. The same view was expressed by Wads worth J. in Kesava Menon v. Achutan Nair : AIR1942Mad482 ,a case relating to Malabar tarwad. At page 42 the learned Judge states,

'In two cases Doraikannu Odayar v. Veerasami Padayachi : AIR1941Mad59 & Periakaruppan Chettiar v. Appaji Naidu : AIR1941Mad202 a Bench of which I was a member, has indicated thatwhen there is a family debt renewed in various documents by different coparceners, any member of thefamily liable for that debt may get the debt scaled down on the basis of the original liability by which he was bound as a member of the family throughout all the various renewals actually executed by different coparceners.'

When the decision in Nalanunni v. Dakshayani Amma : (1942)1MLJ418 was cited, the learned Judge distinguished it on the ground that that decision only turned upon the interpretation of Section 14 as applied to Malabar tarwad in respect of the personal liability of the executant members of the tarwad.

26. From these decisions it follows that though the executant may be personally liable, the debt which he undertakes to discharge is a family debt & the ultimate liability to discharge the same rests on the family.

27. Another aspect also may be considered. It cannot be disputed that the mtge. decree was for the recovery of the family debt. At the time the debt was incurred, at the time the mtge. decree was passed, & even at the time the personal decree was obtained, the debt did not lose its character as a family debt. Order 34 Rule 6, C. P. C. which provides for the passing of a personal decree, is a rule relating to procedure of working out the decree, which is passed in the suit for the sale of the mortgaged property. After the properties mortgaged are sold, if the proceeds realised do not wipe out the debt completely, the balance of the family debt will be realised in the manner provided by Order 34, Rule 6, C. P. C. The executant is made personally liable for the balance of the family debt. It cannot, therefore, be said that the liability of deft. 1 is not in respect of the family debt.

28. For the foregoing reasons I hold tbat Section 14, Madras Agriculturists Eelief Act, is applicable to a non-agriculturist member of a family in regard to the personal decree obtained against him. in respect of the balance of the family debt.

Panchapakesa Ayyar, J.

29. I agree.

Balakrishna Aiyar, J.

30. I too agree. (After the expression of the Opinion of the Full Bench, this appeal coming on for hearing before Subba Rao & Chandra Reddi JJ. on 10-10-50, the Ct. delivered the following Judgment ; )

Subba Rao, J.

31. These appeals were posted before us after the Full Bench answered the question referred to it. Mr. Rama Rao Sabeb, the learned counsel for the applt., raised another point before us. He contended that the order of the Ct. dated 26-10-1988 in I. A. No. 405 of 1938 in 0. Section 114 of 1925 on the file of the Sub-Ct., Madura, operated as a bar to the maintainability of the present appln. Toappreciate the point raised some material facts may be recapitulated. The mtgee. filed O. S. No. 114 of 1925 against Viravan Chetti & his son & obtained a preliminary decree against Vairavan Chetti on 16-1-1930. The appeal against that decree was disposed of by the H. C. on 14-8-1934. The decree against Viravan Chetti was confirmed & a money decree was given against his son. The mtgee. filed another suit against Viravan Chetti's father, Thottan Chetti &obtained; a decree against him on 30-11-1939. In June 1938, soon after the Madras Act IV [4] of 1938 came into force, deft. 1 Vairavan Chetti filed applns. under Sections 18 & 19 of the Act forscaling down the decree obtained against him in O. S. No. 114 of 1925. That appln. was dismissed on 26-10-1938 on the ground that Vairayan Chetti was not an agriculturist asdefined in the Act. The contention of theapplt. was that as no relief under Section 14 of the Act was asked for in that appln. he is now precluded from raising that plea on the principle of res judicata.

32. The learned Subordinate Judge held that there is no scope for the application of the principle of res judicata on the facts of the case, & we entirely agree with him. The cause of action for filing an appln. under Section 8, Madras Agriculturists Relief Act, & the relief claimed therein are different from that claimable in an appln. under Section 14, Madras Agriculturists Relief Act. Defendant l Vairavan Chetti filed an appln. for scaling down the debt on the groundthat he was an agriculturist. As he was not an agriculturist the relief for scaling down was negatived. The present appln. is based on the allegation that though he is not an agriculturist, be will be entitled to the relief underSection 14 of the Act. As the scope of the applns. &the; relief obtainable thereunder are different, the order, Ex. d. 1 dated 25-10-1938 cannot operate as res judicata. Further, defendant 1could not have claimed the relief under Section 14 ofthe Act in I. A. No. 405 of 1938. Section 14 presupposes the existence of agriculturist & non-agriculturist debtors & provides for apportionmentof the debt between them. When he filed theappln. for scaling down, the sunragainst Thottan Chetti was not even decreed. The suit against him was decreed only in November 1939, & he obtained the relief under the Madras Agriculturists Relief Act only on 6-9-1943. As the matters then stood, the provisions of Section 14 were not applicable & he could not have asked forany relief thereunder. He became entitled to a relief only after the decree was obtained against Thottan Chetti & after Thottan Chetti was held to be an agriculturist entitled to relief under the Act. For the above reasons we holdthat the present appln. is clearly maintainable. C. M. A. No. 644 of 1946 is dismissed with costs.

33. C. M. A. No. 645 of 1946 is an appeal against the order of the Subordinate Judge in I. A. No. 161 of 1945. This appeal also raises the same question that arise in C. M. A. No. 644 of 1946. For the same reasons we dismiss this appeal, but in the circumstances, without costs.

34. The resp. in C. M. A. No. 645 of 1946 filed memorandum of cross-objections. In that he claimed that relief should be given to him under the Usurious Loans Act. At the outset we may point out that this relief was not asked for in the Ct. below. Apart from that, we are definitely of opinion that he is not entitled to such a relief under the Act at this stage. He should have raised this plea in O. S. no. 114 of 1925. The Subordinate Judge, who gave a preliminary decree, did not give any finding on the Usurious Loans Act & that decree had become final. Under Section 3 (1), Usurious Loans Act the Ct. can give the relief provided by that Act any suit to which the Act applies. This indicates that the relief under that Act should be claimed & obtained before the decree was passed. As in this case the suit ended in a decree which did not provide for any such relief, it is not now open to the deft. to raise that plea. It is not open to the deft. to go behind the decrees of Ct. execpt in so far as otherwise provided for under Section 14 of the Act. Section 14 of the Act does not entitle him to get relief under the Usurious Loans Act. We cannot, therefore, agree with the arguments of the resp. that we should now give him the relief under the Usurious Loans-Act.

35. In the result, the memorandum of cross objections is dismissed without costs.


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