1. The appellant was the plaintiff in a suit on a mortgage Ex. A, dated 29th January, 1934, executed by defendants 1 and 2 in favour of the plaintiff for a sum of Rs. 26,730-10-0. The suit was instituted before Act IV of 1938 came into force. When that Act became operative an additional written statement was filed, in which it was contended that the suit debt was originally incurred in January, 1922, when an earlier mortgage deed was executed in favour of one Venku Reddi, the manager of the joint composite family of which the plaintiff was a member, that after Venku Reddi's death plaintiff became the manager of the composite family and that the suit mortgage deed was taken in the name of the plaintiff as such manager in renewal of the earlier mortgage deed. The learned Judge has found that the plaintiff was in fact the assignee of the original mortgagee because it appears that one debt was executed in discharge of the other debt and because the plaintiff alleged that he got the debt as a consequence of Venku Reddi's family owing him money and was given Ex. B, that is, the earlier mortgage and some other documents to discharge those debts. The learned Judge finds that on the plaintiff's own assertions he is an assignee of this debt even without any document of assignment and referring to the definition of a 'creditor' in Section 3 of Act IV of 1938 he holds that the plaintiff being the assign of the original creditor is the same creditor. It seems to us that the reasoning of the learned Judge is fallacious. When the definition of 'creditor' was made to include his heirs, legal representatives and assigns, the Legislature must be presumed to have intended to ' refer to those who were the legal heirs or the legal assigns and not to persons who claimed to have acquired rights in a manner which the law does not recognise. If the debt under the earlier mortgage Ex. B was in some informal way made over to the plaintiff before the second deed was executed in his name, he could not by virtue of this informal transfer be deemed to be the assign of the previous mortgagee or of the latter's legal representative.
2. Owing to the view which the learned District Judge took of the effect of the plaintiff's own contentions, he did not go into the defence based on the alleged existence of a composite family of which first Venku Reddi and subsequently the plaintiff were the managers. We do not know whether in fact there is a composite family or whether the contract of mortgage was with the plaintiff as manager of any composite family and not in his capacity as an individual or a member of an ordinary joint family. We are, however, of opinion that the association known as the composite family, the existence of which by custom has been recognised in the Nellore and adjacent districts, cannot properly be termed 'an undivided Hindu family' such as is recognised as a person in the definition in Section 3 (i) of Act IV of 1938. That definition includes under the category of 'persons' an undivided Hindu family, a marumakattayam or aliyasantana tar-wad or tavazhi and excludes other associations. Although the organisation of the composite family of the Nellore district may be in many respects analogous to that of an undivided Hindu family, we cannot hold that the composite family is an undivided Hindu family. It is something different from that which is known to Hindu law as an undivided Hindu family, even though in many of the customary features of the composite family, a marked similarity to the legal incidents of an undivided Hindu family may be established.
3. It seems to follow that it is not open to the defendants to get the decree scaled down on the basis of the earlier mortgage on any theory that the creditor under the first mortgage was an association known as the composite family and the creditor under the later mortgage was the same association. But Mr. Umamaheswaram has contended that even granting so much it might be open to him to show that the mortgagee in each case was the representative according to custom of the individual undivided families which are the component parts of the composite family and that the contract was entered into with him in that capacity and was really a contract with the lesser families making up the composite family acting through their representative and that since the same families were represented in the manner prescribed by custom in both documents, the creditors were the same. We find it difficult to express any opinion on the merits of this contention, when no evidence has been recorded either as to the existence of the composite family in question or as to the customary status of the manager of such a family or as to the way in which the contracting parties regarded the mortgagee in his relation to the composite family or to the minor groups included therein. We think it, therefore, better to remand the case for the recording of such evidence as may be adduced on the question whether the two mortgages were both executed with the mortgagee as the representative of the same Hindu undivided families forming together a composite family, and if so, whether the defendants are entitled to have the debt scaled down under Section 8 on the basis of the original principal in Ex. B.
4. There is a memorandum of cross-objections filed on behalf of the defendants which raises two questions. One is whether two payments, made under Ex. B the earlier mortgage and credited at the time when the later mortgage was executed, can be treated as open payments available in reduction of the principal as on 1st October, 1937. If the disposal of the remanded enquiry results in a decision that Section 9 of the Act applies, this contention would not of course have any force. But it seems to us that it is clearly untenable in the light of the decisions of this Bench. When these two payments were adjusted to the debt in order to calculate the amount for which the later document was executed, it could no longer be contended that they were unappropriated and the debtor would have to show that they were appropriated in such a way as is beneficial to himself, which he cannot do. The other question raised in the memorandum of cross-objections relates to the calculation of the advocate's fee. It is suggested that the advocate's fee should be calculated on the amount as scaled down and not on the amount which would legitimately have been decreed, had it not been for the operation of Act IV of 1938. Under the provisions of Section 18 when a suit is filed after the 1st October, 1937, the Court must allow costs on the basis of the debt as scaled down. The corollary of this provision of law, is that when a suit is filed before the 1st October, 1937, costs should legitimately be allowed on the basis of the decree which would have been passed had it not been for the intervention of Act IV of 1938. The memorandum of cross-objections is therefore dismissed with costs and the appeal is allowed and the suit is remanded for fresh disposal in the light of this judgment after hearing such evidence as may be adduced. Costs in the appeal and in the trial Court will abide by the result. The court-fee on the memorandum of appeal will be refunded.
5. We wish to add that nothing in this judgment will prevent the plaintiff from establishing the truth of his contention that the mortgage, Ex. A, though a novatio of Ex. B, is not a renewal of the same debt, in the technical sense.