1. This is an appeal arising from the decree and judgment of the learned Subordinate Judge of Cuddalore in A.S. No. 131 of 1952 practically confirming the order and decree of the learned District Munsif of Villupuram in O.P. No. 65 of 1950.
2. The facts are: Thaiyanayagi Ammal, the wife of the first respondent and the mother of respondents 2 and 3, took two mortgages from the father of the petitioners, Deivanayaga Reddiar. The first mortgage, a usufructuary one, was on 3rd November, 1921, for Rs. 1,500 and the second mortgage, also a usufructuary one, was on 28th September, 1923, for Rs. 2,700 in discharge of the prior mortgage and possession continued to be with the mortgagee. This Thaiyanayagi Ammal as well as Deivanayaga Reddiar have died. The petitioners are the five daughters of that Deivanayaga Reddiar. It is in these circumstances that the petitioners on the foot that they are agriculturists within the meaning of Madras Act IV of 1938, and concerning which there is no dispute, applied for scaling down. The contention of the respondents was that by reason of the fact that Thaiyanayagi Ammal was a woman and the bulk of her properties were situated in Pondicherry and which ought not to be taken into account and therefore made her an exempted person under Clause (h) of Section 4 of the said Act, the petition for scaling down should be rejected.
3. Both the lower Courts held that the fact that Thaiyanayagi Ammal owned properties admittedly worth more than Rs. 6,000 in fact Exhibits A-2 to A-5 show that she had properties worth more than Rs. 8,300-albeit in Pondicherry would lake her out of the category of persons who would be entitled to exemption under Section 4(h) of the Act IV of 1938, and allowed the scaling down and hence this appeal by the defeated heirs of the mortgagee.
4. Clause (h) of Section 4 is plain and unambiguous. Section 4 begins by stating
Nothing in this Act shall affect debts and liabilities of an agriculturist falling under the following heads.
5. Clause (h) covers ' any debt or debts due to a woman ' on the 1st October, 1937 who on that date did not own any other property, provided that the principal amount of the debt or debts did not exceed rupees three thousand. (The amount has been raised to Rs. 6,000 by the amending Act XXIII of 1948). It is provided that in calculating the value of the property owned by the woman on 1st October, 1937, the house in which the creditor woman lived or any furniture therein, or her household utensils, wearing apparel, jewellery, or such like personal belongings shall not be regarded as property. With reference to this clause the Select Committee has observed as follows:
The Committee has also exempted from the operation of this Act any debt or debts due to a woman who is entirely dependent upon such debt or debts for her maintenance and has accordingly included the following additional items in Clause (4) of the Bill,
In Krishnamurthy v. Venkateswaran : AIR1952Mad11 , I have pointed out as follows:
The care with which these exemptions were framed upon a sound and explicable classification based upon the objects and reasons for which this Act (IV of 1938) came to be passed is illustrated by an amendment which was proposed to include within the scope of this exemption debts due to orphans, very aged and disabled persons. The Prime Minister (Sri Rajagopalachari) in opposing this amendment said that women for whose benefit the protection was devised constituted a distinct class. As for the other categories of persons referred to, numerous difficulties would arise in defining them or ascertaining their fitness for relief. He was unable to accept the amendment because it would lead to enquiries whether a person was infirm or not and whether he was capable or not of earning a livelihood and in the case of minors the time that minority should be calculated, up to the date of the loan or the date of the legislation. The complications that might ensue might be too many to be solved easily. In the case of women, at least, the tradition was to make a distinction with respect to tenure, estate and other matters. If a similar distinction was to be made in the case of the other persons also, it would lead to difficulties. As for orphans what was the criterion Was it the mere fact of the death of parents If so, a minor might be driving in a motor car, due perhaps to the absence of parental care and was he to be considered an orphan The House would be ill-advised in accepting this amendment. He would admit, at the same time, there were many cases of an absolutely deserving character but he was afraid these could not be provided for. Let them therefore be content with providing for women, who he added, became a 'nightmare' to him because of the amount of literature which appeared in the press in their behalf.
6. It is evident therefore that in order to attract the application of Section 4(h) the women's sole means of livelihood must be money-lending within the limits specified in this clause. Ramaswami Reddi v. Alagayammal : AIR1940Mad421 . If the principal of these debts exceeded the limit of Rs. 6,000, the creditor-woman will completely forego the benefit of the provision and the exemption will not be granted even to the extent of the debt covering the principal sum of Rs. 6,000. It also follows that as the clause in intended for the benefit of women, it cannot be applied where the name of the woman appears as a payee only nominally, e.g., as a benamidar for another or as the guardian of a minor. Ranganayakulu v. Raghavamma (1940) 2 M.L.J. 53 in A.A.O. 141 of 39, Subba Reddi v. Venkatappa Reddi : AIR1941Mad596 See also Rangaswami Pillai v. Vasu : AIR1942Mad388 . But when there is a debt due to a man and a woman and the debt due to each can be ascertained the debtor will be refused relief only as against the woman's portion. Gangadurudu v. Mahakshmamma : (1945)1MLJ468 . Secondly, having regard to the terms of the Explanation which exempts from the computation of property for the purpose of this section only such articles as are unproductive of income, it may be taken that the word ' house ' used in this Explanation must be understood as meaning the whole or such portion of it as is actually in the occupation of the woman. If rent is derived from a portion of the house in which she lived, it became ' other property' within the meaning of this clause and she will be deprived of the privilege conferred by this clause. In fact quite a literature has grown up around the term ' other property '. C.R.P. 1072 of 1938 (49 L.W.S.N.C. 58); Chinnabi v. Venkata : AIR1941Mad507 in C.R.P. No. 107 of 1939, Bhadrachalam v. Nagarcpavatamma : AIR1940Mad885 . Thirdly, there is nothing to indicate that the words ' any debt or debts ' in Clause (h) refer to the debts or debt in respect of which the application for scaling down has been made. On the other hand, the opening words of section
Nothing in this Act shall affect debts and liabilities of an agriculturist falling under the following heads
show that the exemption relates to certain classes of debts and has no particular reference to the debts sought to be scaled down. It has been held that the exemption under this clause covers a particular category of debts limited in regard to their nature and extent, while insisting as a condition of its application that the creditor-woman should not have owned on the date specified any property, that is to say, property not falling under that category apart from the property excluded by its Explanation. A debt due from a non-agriculturist is thus held to be ' other property '. Then finally, exemption is given under this clause to debts existing on 1st October, 1937; Dorayya v. Satyananarayana (1941) 1 M.L.J. 74(1). Visalakshi v. Pokker (1940) 2 M.L.J. 57, Ramaswami v. Venkata (1940) 2 M.L.J.81. Once these requirements are fulfilled, the exemption under Section 4(h) is attracted: Kanyaka Parameswaramma v. Kotayya (1943) 2 M.L.J. 686, Kamalabai Ammal v. Theethachari ( : AIR1951Mad345 , Janakiramayya v. Ranganakamma (1952) 2 M.L.J. 36
7. In the present case the debts existed on 1st October, 1937 and they were due from agriculturists and they were owned by Thaiyanayagi Ammal and aggregated under Exhibits B-1 and B-2 to Rs. 2,700 and under Exhibits A-2 to A-5 to Rs. 8,300. On these facts it follows that Thaiyanayagi Ammal would not be an exempted person under Section 4(h). Therefore, to bring her within the category of exempted persons, it is urged that her properties within the French limits should not be taken into consideration in arriving at the sum of Rs. 6,000. It is common ground that if the properties in French limits are excluded, this Thaiyanayagi Ammal would certainly be an exempted person.
8. I entirely agree with the learned Subordinate Judge that this contention cannot be accepted. The point is bereft of authority and has to be decided on first impressions. The learned Subordinate Judge has rightly pointed out that the object of the said provision is quite apparent that in giving relief to poor agriculturists, poor women-creditors should not be hit hard, thereby giving relief to one kind of poor debtors at the expense and hardship of another class of poor women-creditors owning properties of less than Rs. 6,000. The object may be stated in another way, namely, that in exempting poor women-creditors, with properties of less than Rs. 6,000, the relief has not been extended to women-creditors owning properties of more than Rs. 6,000 on the foot of their being affluent women-creditors who could afford to forego in favour of their agriculturist-debtors their full claims and to give them a measure of relief from their indebtedness. Hence, the only criterion for deciding whether the exemption in favour of women-creditors given under Section 4(h) of the Act applies to a particular woman-creditor is to find out whether, on the whole, she is a rich or a poor creditor, that is, whether she is possessed of properties to the value of more than Rs. 6,000 or less than that amount. There is absolutely no warrant on the language of Section 4(h) to exclude certain categories of properties belonging to the woman creditor, except those expressly mentioned in the Explanation to that section. That Explanation clearly lists a catalogue of properties to be excluded in computing the value of the properties for the purposes of the said section. If indeed the legislature intended to exclude from such a computation properties belonging to women-creditors situate outside the Indian Union limits, nothing could have been easier than to add them to the list of items in the Explanation to that section. The absence of mention of such properties in the said Explanation clause is a clear indication or the intention of the legislature that such properties were not contemplated to be excluded and that they should be taken into account, while ascertaining the total value of all the properties belonging to any woman-creditor. I therefore affirm the conclusion of the learned Subordinate Judge that the properties of Thaiyanayagi Ammal situated in the former French territory cannot be excluded and that if included and taken into consideration, she and her heirs are clearly not entitled to the exemption enacted in Section 4(h) of the Act.
9. In the result, this appeal is dismissed with half costs. No leave.