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M.S. Nagaraja Dikshitar Alias M.S. Nagaraja Sarma Vs. Sundaresa Sastrigal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1958)2MLJ557
AppellantM.S. Nagaraja Dikshitar Alias M.S. Nagaraja Sarma
RespondentSundaresa Sastrigal and ors.
Cases ReferredRajagopal Naidu v. Sivakami Amtnal
Excerpt:
.....there being a suspicion that he did so mistaking it for honey. i am of opinion that the transferee, if satisfying other conditions like the period mentioned, etc. , who are not the transferees of the entire mortgage rights in any item from claiming immunity from scaling down though i am of opinion that the full transferee of any item mortgaged could claim such immunity provided his transfer falls within the period and satisfied the other conditions......sastrigal on 10th march, 1930, under exhibit b-2. subramania sastrigal sub-mortgaged two of the mortgaged items in favour of one seshayyar, the second respondent in the o.p. on 12th february, 1932, for rs. 450, under exhibit b-3. he also created another sub-mortgage of the remaining 16 items in favour of the sixth respondent a. k. venkatarama ayyar, for rs. 1,550 on 9th september, 1942, under exhibit b-5.3. under the madras agriculturists relief act, the transferee in whole or part of a usufructuary mortgagee's rights between 13th september, 1937 and 30th january, 1948, will be entitled to claim immunity from scaling down of his debt. the object of this was to protect those unfortunate persons who relying on the provisions of the original madras agriculturists relief act and the.....
Judgment:

Panchapakesa Ayyar, J.

1. This is an appeal by one Nagaraja Dikshitar, the petitioner in O.P. No. 60 of 1952, on the file of the District Munsiff, Tiruvannamalai for setting aside the judgment and decree of the District Judge of North Arcot at Vellore, in A.S. No. 175 of 1954, confirming the order of the District Munsiff, Tiruvanna-malai,in the O.P. and declaring that thesixth respondent, A.K. Venkatarama Ayyar, the sub-mortgagee from one Subramanya Sastrigal, the successor-in-interest of the original usufructuary mortgagee, was entitled to the payment of the full sum of Rs. 1,550, due under Exhibit B-5 the sub-mortgage without any liability to have it scaled down under the Madras Agriculturists Relief Act.

2. The facts were briefly these: Nagaraja Dikshitar, the appellant, and his brother (since deceased) created a usufructuary mortgage over 18 items of their landed properties, on 12 th August, 1925, in favour of one Seetharama Vadhyar, for Rs. 2,000 under Exhibit B-i. Seetharama Vadhyar died, and he was succeeded by one Venkatarama Vadhyar, a near relative. Venkatarama Vadhyar transferred the mortgage right, which came into existence under Exhibit B-i, in favour of one Subramania Sastrigal on 10th March, 1930, under Exhibit B-2. Subramania Sastrigal sub-mortgaged two of the mortgaged items in favour of one Seshayyar, the second respondent in the O.P. on 12th February, 1932, for Rs. 450, under Exhibit B-3. He also created another sub-mortgage of the remaining 16 items in favour of the sixth respondent A. K. Venkatarama Ayyar, for Rs. 1,550 on 9th September, 1942, under Exhibit B-5.

3. Under the Madras Agriculturists Relief Act, the transferee in whole or part of a usufructuary mortgagee's rights between 13th September, 1937 and 30th January, 1948, will be entitled to claim immunity from scaling down of his debt. The object of this was to protect those unfortunate persons who relying on the provisions of the original Madras Agriculturists Relief Act and the immunity from scaling, down granted in it in respect of usufructuary mortgages, had lent monies on usufructuary mortgages, without ever suspecting that the provisions would be suddenly changed, as it was in January, 1948, by any amending legislation. The sixth respondent Venkatarama Ayyar's sub-mortgage fell within the period fixed in the Act. Construing the phrase in whole or in part to include not merely the transfer of the entire mortgage interest in the whole properties mortgaged, or in some items, but also part of the interest in any item enjoyed by the mortgagee, and therefore including sub-mortgage, both the lower Courts held that the usufructuary sub-mortgage to the sixth respondent Venkatarama Ayyar, under Exhibit B-5, by Subramania Sastrigal, was not liable to be scaled down and that Venkatarama Ayyar was entitled to be paid the full sub-mortgage amount of Rs. 1,550. The learned District Judge therefore dismissed the appeal of this appellant, with the sixth respondent's costs. Hence this C.M.S.A.

4. I have perused the entire records, and heard the learned Counsel on both sides. Mr. G.R. Jagadisan, for the appellant, and Mr. M.S. Venkatarama Iyer for the sixth respondent, have argued the case fully. Mr. G.R. Jagadisan raised three main contentions. The first was that, for claiming immunity from scaling down, the transferee of the usufructuary mortgage interest, even where it is the whole interest in the usufructuary mortgage, must be a person deriving title otherwise than by a transfer inter vivos. For this extraordinary proposition, medieval in its nature, he sought to rely on a modern ruling of a Bench of this Court in Narayanaswamy Chettiar v. Vellayappa Udayar (1954) 1 M.L.J. 578. The passage he relied on in the Bench decision, in support of his contention, is found on page 582, and runs as follows:

Here the expression used is, 'successors-in-interest' which is wide enough to include transferees. We have, however, a suspicion that this expression was intended to be a compendious phrase to denote the class of persons mentioned in the last part of Clause(a), that is, persons deriving title otherwise than by a transfer inter vivos.

5. It will be seen that the learned Judges held that the phrase used, namely, ' suc-cessor-in-interest' was wide enough to include all transferees, and, of course, also transferees inter vivos. They simply added that they had a suspicion that the expression was intended by the Legislature to be a compendious phrase for denoting persons other than persons claiming inter vivos. In other words, they held that the legislature might have intended one thing, but had really said another, and that they were concerned with what the Legislature said and not what the Legislature might have thought or intended to say. They carried out the effect of the phrase used by the Legislature and held that it would include also transferees inter vivos. It is like a burglar entering a house at night and drinking from a bottle of castor oil as a matter of fact, and there being a suspicion that he did so mistaking it for honey. The fact cannot be altered by the theory though the unfortunate act of his made him unable to continue his thieving operations any more, the fact of his drinking castor oil is there and is not displaced by this suspicion. This contention of Mr. Jagadisan therefore fails.

6. The next contention of Mr. Jagadisan was that even if the usufructuary mortgage right regarding one of the items, out of the many items comprised in the usufructuary mortgage, is transferred in entirety, the transferee cannot claim immunity from scaling down. He relied on the observations of a Bench of this Court, consisting of Govinda Menon and Ramaswarni, JJ., in Rajagopal JVaidu v. Sivakami Ammal : (1956)1MLJ589 The observations relied on are on page 590 and runs as follows:

Where a usufructuary mortgage consists of more than one item, if the entire rights of the usufructuary mortgagee are conveyed to another there is a transfer of the mortgagee's interest wholly. But if one or more items alone are transferred out of a number of other items then it cannot be said that there is a transfer in part of the mortgagee's rights.

7. But these observations have been modified later on by the learned Judges by their further observations which run as below:

We have no doubt whatever that the words 'transfer in part of the mortgagee's rights' would mean absolute conveyance or renunciation of the whole bundle of rights in the entire property or part of it.

8. I am of opinion that the learned Judges first put the proposition too widely and then felt themselves constrained to restrict it to a smaller scope, which, with respect, I hold to be correct view. I am of opinion that the transferee, if satisfying other conditions like the period mentioned, etc., can claim his transferred mortgage debt to be immune from scaling down. That the learned Judges meant the later opinion to prevail over their earlier tentative opinion is clear from their reasoning which runs as follows:

If Mr. Desikan's argument is correct, then the situation comes to this. Any usufructuary mortgagee leasing out his properties to a lessee can claim the exemption by saying that that is a transfer either wholly or in part.

9. Where the mortgagee does not part with his entire mortgage right, or bundle or rights, in any item of mortgage, but only sub-mortgages to another, the original mortgage in his favour continues and runs on and it might have started before the period, or ended after the period mentioned by the Legislature.

10. The last contention of Mr. Jagadisan was that, at any rate, the sub-mortgagees from the original usufructuary mortgagee, even though the sub-mortgages were entered into within the period named, would not be entitled to immunity from scaling down, as the original mortgagees have not parted with the whole bundle of rights in the items sub-mortgaged by them. For this position, he relied on the Bench ruling above mentioned, which directly applies to it, and on the ruling of Ramaswami, J., in Velu Mudaliar v. Rajaram Karayalar (1956) M.W.N. 551, and on a ruling of Rajagppala Ayyangar, J., in A.S. No. 164 of 1956, following the Bench ruling above mentioned. It was mentioned before me by Mr. Jagadisan, who appeared for the appellant in A.S. No. 164 of 1956, that that appeal is now the subject-matter of a Letters Patent Appeal. The Bench ruling in Rajagopal Naidu v. Sivakami Amtnal : (1956)1MLJ589 , directly applies to this case and holds that a sub-mortgagee in respect of one or more items of an usu-frucutuary mortgage, even though the sub-mortgage is made within the relevant period, will not be entitled to immunity from scaling down under the Madras Agriculturists Relief Act. That direct ruling is binding on me. I also agree, with respect with the reasoning in it precluding sub-mortgagees, lessees, etc., who are not the transferees of the entire mortgage rights in any item from claiming immunity from scaling down though I am of opinion that the full transferee of any item mortgaged could claim such immunity provided his transfer falls within the period and satisfied the other conditions. The above Bench ruling I may add, was delivered only on 24th November, 1955, and the learned District Judge delivered his judgment on 20th September, 1955, before it was delivered.

11. In view of what I have said above, I allow the appeal and declare that the debt due to the sixth Rrespondent Mr. Venkatarama Iyer, under the sub-mortgage from Subramania Sastrigal will be liable to be scaled down under the Madras Agriculturists Relief Act, and remit the matter to the trial Court for scaling it down according to the provisions of the Act. In the circumstances, I direct all the parties to bear their own costs throughout. Leave asked for by Mr. M.S. Venakata-rama Iyer for sixth respondent, and granted.


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