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Kona Hasan Fathima Bivi (Deceased) and ors. Vs. Muhammad Muhaideen Nachiar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1943Mad87; (1942)2MLJ506
AppellantKona Hasan Fathima Bivi (Deceased) and ors.
RespondentMuhammad Muhaideen Nachiar and ors.
Cases ReferredPalani Goundan v. Peria Goundan
Excerpt:
- - the application was resisted on the ground inter alia that the petitioners' father who was the original debtor was not an agriculturist within the meaning of the act, and that as the debt could not have been scaled down if he were alive and had applied for relief, the petitioners who merely represented his estate and were liable to pay the debt out of its assets in their hands were in no better position and could claim no relief under the act though they were themselves agriculturists......the question next arises as to whether the decree debt has to be scaled down under section 8 as a debt incurred before the 1st october, 1932, or under section 9 as a debt incurred after that date. where a decree has been passed for the re-payment of a debt, we have held that the material date for this purpose is the date on which the debt was originally incurred and not the date of the decree. ramaseshayya v. kutumba rao : air1940mad793 . it will be seen that the debt here in question was originally incurred by the petitioners' father when he executed the promissory note on 6th april, 1920, but the petitioners came under liability as his heirs when he died in september, 1936. it was urged for the respondents that the liability of the petitioners to satisfy the decree out of the assets.....
Judgment:

Patanjali Sastri, J.

1. This civil revision petition arises out of an application made by the petitioners to the Court of the District Judge of Bast Tanjore for scaling down a decree debt under the Madras Agriculturists' Relief Act (hereinafter referred to as the Act).

2. The respondents sued to recover the amount due under a promissory note executed by the petitioners' father on 6th April, 1920, and obtained a decree on 1st November, 1930. The petitioners' father who was the 1st defendant in the suit died on 27th September, 1936, and the petitioners, who were his heirs under the Mohammadan Law, were brought on record in the execution proceedings as his legal representatives. After the Act came into force in March, 1938, the petitioners claiming to be agriculturists as defined in. the Act applied to have the decree debt scaled down in accordance with the provisions thereof. The application was resisted on the ground inter alia that the petitioners' father who was the original debtor was not an agriculturist within the meaning of the Act, and that as the debt could not have been scaled down if he were alive and had applied for relief, the petitioners who merely represented his estate and were liable to pay the debt out of its assets in their hands were in no better position and could claim no relief under the Act though they were themselves agriculturists. This contention of the respondents found favour with the learned District Judge who accordingly dismissed the application for scaling down the decree.

3. It is not disputed that the petitioners' father had before he died in September, 1936, been assessed to property or house tax in respect of buildings and lands other than agricultural lands under the Madras District Municipalities Act, 1920, within two years immediately preceding the 1st October, 1937 and was therefore disqualified to be an agriculturist by reason of proviso C to Section 3 (ii) of the Act. But the learned Counsel for the petitioners contended before us that the view taken by the learned District Judge is erroneous in view of the decision of this Court in Perianna v. Sellappa : AIR1939Mad186 . In that case a Bench of this Court (Varadachariar and Abdur Rahman, JJ.) held that the right to claim relief under the Act was not confined to the person who actually contracted the debt but was available equally to persons who were liable on account of the possession of property and that accordingly the liability of a purchaser of the equity of redemption in a portion of mortgaged property was a debt liable to be scaled down under the provisions of the Act. Referring to the contention that while Clause (v) of Section 3 which defines 'creditor' takes care to include heirs, legal representatives and assigns, there is no corresponding definition in the case of a 'debtor' and that therefore relief under the Act should be limited to cases where a person is personally liable, the learned Judges observed:

This omission is obviously due to the fact that the reference to liability in Clause (iii) is wide enough to cover every person who is in any manner liable, either because he is personally liable or because be is liable on account of the possession of property. There was no necessity to refer to any heir, legal representative or assign except in cases in which such person was (not?) liable within the meaning of Clause (iii).

It is clear that the learned Judges assumed as beyond question, that the liability of an heir or legal representative falls within the purview of the Act provided, of course, such person was an agriculturist, and we have extended the principle of the decision to various cases where the liability of a person arises by reason of his possession of property. As pointed out by the learned Judges the 'avowed purpose (of the Act) was to enable agriculturists to retain their property and prevent such property passing into the hands of creditors or execution purchasers' and it would largely defeat such purpose, if the benefit of the Act were to be denied to the large class of persons who come under liability by devolution and who are themselves agriculturists as defined by the Act. We are therefore of opinion that the petitioners are entitled to claim relief under the Act as agriculturists although their father whose liability they have inherited was himself not an agriculturist.

4. The question next arises as to whether the decree debt has to be scaled down under Section 8 as a debt incurred before the 1st October, 1932, or under Section 9 as a debt incurred after that date. Where a decree has been passed for the re-payment of a debt, we have held that the material date for this purpose is the date on which the debt was originally incurred and not the date of the decree. Ramaseshayya v. Kutumba Rao : AIR1940Mad793 . It will be seen that the debt here in question was originally incurred by the petitioners' father when he executed the promissory note on 6th April, 1920, but the petitioners came under liability as his heirs when he died in September, 1936. It was urged for the respondents that the liability of the petitioners to satisfy the decree out of the assets of their father which have come to their hands could be scaled down if at all only under Section 9 of the Act as such liability arose only on the death of their father and not before, while the petitioners contended that no fresh liability was incurred when their father's liability under the note of 1920 devolved upon them and that it fell under Section 8. Here again the decision in Perianna's case : AIR1939Mad186 . seems to lay down the governing principle. The debt in that case was originally incurred by the mortgagor in 1929 but the applicant for relief under the Act purchased part of the hypothecated property and thus came under liability to pay off the mortgage in 1933. Repelling the contention that the appellant's liability should in such circumstances be taken to have been incurred only in 1933 the learned Judges observed:

This proceeds upon a misapprehension of the nature of the petitioner's liability. His liability is traceable to the original mortgage and his purchase was not the basis! of any new liability. The liability that is now sought to be enforced is the liability arising out of the mortgage of 1929. The case therefore falls under Section 8.

On the same reasoning it must be held that the liability now sought to be scaled down is the liability incurred under the promissory note of 1920 and the petitioners' succession to their father's estate cannot be the basis of any new liability. It was suggested that this view was somewhat inconsistent with our conclusion that the petitioners' right to obtain relief under the Act must be determined with reference to their agriculturist status; for, if the personal qualification of the heir is to be the basis for awarding relief, the date when he comes under the liability by succeeding to the property of his ancestor must be taken as the determining date for the purpose of scaling down the debt, as such liability viewed as his liability did not exist before, while, on the other hand, if the true theory of the liability of an heir or legal representative is that he continues or represents the persona of the deceased ancestor (see Kanchamalai Pathar v. Shahaji Rajah Sahib (1935) 70 M.L.J. 162 : I.L.R. 59 Mad. 461 ) the agriculturist or non-agriculturist status of the ancestor alone should determine the right to relief. Whatever might be the force of this criticism from a strictly logical point of view, we cannot disregard the decision in Perianna's case : AIR1939Mad186 . the principle of which we have applied and extended to various cases. The respondents' learned Counsel sought to distinguish that case by pointing out that the original debtor there, i.e., the mortgagor was also an agriculturist. This circumstance is no doubt referred to in the course of the judgment of the learned Judges, but it is difficult to see what difference it can make to the reasoning employed or to the conclusion reached, and we must take it that it was mentioned merely by way of narrowing down the controversy. In fact we have held in Palani Goundan v. Peria Goundan : AIR1941Mad158 ., that it is immaterial whether or not the debtor had the agriculturist character when the debt was actually incurred where it was incurred prior to 1st October, 1937, and that the material dates with reference to which such character has to be determined for the purpose of awarding relief under Section 19 are the 1st of October, 1937, 22nd March, 1938 (the date of the commencement of the Act) and the date of the application. We see therefore no force in the distinction sought to be drawn between that case and the present.

4. In the result, the civil revision petition succeeds and the decree sought to be executed against the petitioners will be amended by scaling down the amount payable thereunder in accordance with Section 8. It is not disputed that on this footing the amount payable to the respondent is Rs. 3,398-12-0 with interest at six per cent. per annum from 1st October, 1937, till realisation and execution costs. The petitioners will have their costs here and in the Court below.


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