V. Ramaswami, J.
1. An interesting question of law is raised in this Letters Patent Appeal. The facts necessary for deciding that question are as follows: The first respondent herein filed O.S. No. 470 of 1972 on the file of the First Additional Subordinate Judge, Madurai for enforcement of the mortgage and obtained a decree against the appellants. The sale deed in respect of the property mortgaged is in favour of appellants 1 and 2 who are husband and wife. The mortgage deed, however, was executed by the first appellant the husband, second appellant the wife and the son the third appellant. The mortgage decree also was against all those three individuals. These judgment-debtors along with their children filed an application under Section 15 of the Tamil Nadu Debt Relief Act (Act 38 of 1972), hereinafter called the Act, praying for scaling down the decree in accordance with the provisions of the said Act on the ground that they are debtors within the meaning of that Act. The main objection of the decree-holder was that the mortgage property, that is a house property, has been assessed to property tax, the aggregate annual rental value of which is Rs. 2,016 and that therefore they could not claim the benefits of the provisions of the Act. This contention of the decree-holder was accepted by the learned Subordinate Judge and the petition for scaling down was rejected. This view of the learned Subordinate Judge was confirmed by the learned Judge of this Court in A.A.No. 402 of 1977. It is against this judgment the present appeal has been filed.
2. Clause (3) of Section 2 of the Act defines a 'debtor' as meaning any person from whom any debt is due. The relevant part of the proviso to this definition may be extracted:
Provided that a person shall not be deemed to be a debtor, if he,--(iii) has in all the four half years immediately preceding the 1st March, 1972 been assessed to property or house tax in respect of buildings - under the Tamil Nadu District Municipalities Act, 1920...provided that the aggregate annual rental value of such buildings and lands whether let out or in the occupation of the owner is not less than rupees one thousand and two hundred.
The annual rental value in this case as we have already noticed is Rs. 2,016. But it is contended by the learned Counsel that the property is owned by the first and second appellants, that they have equal rights in the property and that therefore in ascertaining whether each one of them is a debtor or not, the aliquot rental value of their share alone should be taken into account for the purpose of determining whether they are debtors or not and that the annual rental value of the entirety of the building should not be the basis for rejecting the claim for the benefit under the Act. In support of this contention, the learned Counsel relied on a decision of Patanjali Sastri, J. as he then was, in the decision reported in Jikkini Bibi Sahiba v. Ranganayaki Ammal : AIR1943Mad258 . That was a case of a sole debtor who had only a share in a house property. The learned Judge held that only the proportionate share of the value of the house, in which the debtor holds only a share and not the whole annual rental value of the house, should be taken into account. That decision is, therefore not any authority for the proposition relied on by the learned Counsel. However, we find that the unreported decision cited in that very judgment is against the contention of the learned Counsel. The learned Judge has referred to a decision of a Division Bench of this Court in C.M.P. Nos. 5740 to 5747 and 5905 to 5907 of 1941 and with reference to that case, the learned Judge has stated that the petitioners who claimed the benefit of the Act in that case were owners of a half share of a house which had been assessed to tax during the relevant period. The reference to the petitioners and calling them as 'were owners' show that the debtors were more than one and jointly they were holding a half share in the house and the entirety of the value of half share of the house was taken into account for the purpose of determining whether they are debtors or not and not the proportionate share of each of the individual debtors in that house that was taken into account. That shows that in a case where more than one person are the debtors and they jointly own a house property, the entirety of their interest should be taken into account for the purpose of determining whether they are debtors within the meaning of the Act. Further, the words 'debtor' and 'person' in Section 2(3) of the Act will have to be read as including 'debtors' and 'persons'. If the debt is one and the decree is against more than one person and the debtors jointly owned a house property, the annual rental value of their share in the house jointly will have to be taken into account for the purpose of determining the applicability of the proviso to that definition. The learned Judge who disposed of the appeal, after distinguishing the decision in Jikkini Bibi Sahiba v. Ranganayaki Ammal : AIR1943Mad258 held that in a case where more than one person happened to be the owners of the property and all the owners happened to be also the debtors pursuant to a mortgage decree, it is not possible to distribute the total annual rental value or divide the same as between them and apportion the same to each of the owners according to the shares to which they are entitled in the property and by such process to hold that every one of the debtors is entitled to the benefit of the Act. We respectfully agree with this statement of the law by the learned Judge. We should not also forget that we are dealing with a case of a mortgage decree and according to law, the mortgage is indivisible and the mortgage debt is also indivisible and, therefore, the question of splitting up the same for the purpose of relief under the Act and to apportion the annual rental value as between the co-owners cannot, therefore, arise.
In the result the letters patent appeal fails and is dismissed. There will be no order as to costs.