1. The facts necessary for the disposal of this case may be shortly stated. The appellant had a kanom over certain properties which belonged in jenm to the Kuthiravattath tarwad.
2. On 6th September, 1923, the appellant borrowed Rs. 600 from and executed a promissory note in favour of one Appu Pattar who was the manager of a joint Hindu family. On 9th August, 1924, the appellant executed a deed of simple mortgage, Ex. P-1, hypothecating 18 items of property to Appu Pattar to cover the amount due under the promissory note of 1923 and a further cash advance. Ex. P-1 was for Rs. 1,000.
3. There was a partition in Appu Pattar's family in 1930. It is common ground that this was evidenced by a registered deed of partition. It is also common ground that at that partition the mortgage evidenced by Ex. P-1 fell to the share of the Appu Pattar's brother, Srinivasa Pattar, who is the respondent in the present appeal.
4. On 9th August, 1935, a fresh document of mortgage, Ex. P-2 was executed by the appellant in favour of the respondent. This covered the same 18 items, but 15 out of these items were put in the possession of the mortgagee while the remaining three continued in the possession of the mortgagor. It is not in dispute that Ex. P-2 was executed in renewal of Ex. P-1, the amount due as per Ex. P-2 being Rs. 1910.
5. It is necessary to state a few more facts to show how the present litigation has arisen.
6. The jenmi gave a melcharth over the properties covered by the appellant's kanom to one Parvathi. She filed a suit to redeem the kanom in favour of the appellant impleading the appellant as the first defendant and the respondent as the second defendant. A decree was passed in her favour, directing possession of the properties to be given to her on her paying the value of the improvements which was ascertained. There was a direction also that out of the amount deposited, the respondent should be paid the amount due to him under Ex. P-2. As the appellant and the respondent were not agreed as to what amount was due, the ascertainment of the amount payable under Ex. P-2 was reserved to the execution stage.
7. The melcharthdar deposited the amount in due course. The respondent then applied for a cheque for what he claimed to be due to him, his contention being that the debt under Ex. P-2 is not liable to be scaled down at all under the provisions of Madras Act IV of 1938. The contention of the appellant, on the other hand, was that the debt is liable to be scaled down. It is not in dispute that the appellant is an agriculturist within the meaning of Madras Act IV of 1938. The District Munsiff of Alattur, in whose Court the application for payment out was made by the respondent, held that the debt was liable to be scaled down and fixed the amount payable to the respondent in respect of Ex. P-2 at Rs. 950, and directed some deductions to be made out of it. On appeal, the Subordinate Judge of South Malabar at Palghat reversed the decree of the District Munsiff and held that the respondent was entitled to be paid the entire amount due under Ex. P-2 without any scaling down.
8. On behalf of the appellant, Mr. V. Balakrishna Eradi argues that the debt should have been scaled down and that the process of scaling down must be carried back to the promissory note of 1923.
9. It is well settled that in order to take back the process of scaling down, it is necessary that the identity of the creditor, the identity of the debtor and the identity of the debt must all be established. There is no dispute here that the debtor is the same throughout the relevant period; nor is there any question that the debt is the same. The debt is the same notwithstanding that there was, as already pointed out, a cash advance in 1924 when the original promissory note merged in the deed of simple mortgage, Ex. P-1.
10. The discussion before me centred round the question whether it could be said that the creditor was the same throughout. 'Creditor' has been defined in Section 3(5) of Madras Act IV of 1938 as follows: 'Creditor' includes his heirs, legal representatives and assigns. Mr. Balakrishna Eradi's argument is that the respondent is an assignee within the meaning of that definition from the original creditor under Ex. P-1, namely, the joint family represented by Appu Pattar. It is common ground that Appu Pattar took the promissory note and obtained the mortgage Ex. P-1 as the manager of a joint Hindu family consisting of himself and the respondent.
11. In dealing with the provisions of the Madras Agriculturists' Relief Act with particular reference to the definition of 'creditor' it has been repeatedly held that an assignment within the meaning of the definition must be a legal assignment and not a mere equitable assignment or an informal assignment. Proceeding on this line of reasoning, it has been held that where a debt belongs to a joint Hindu family at one time but belongs after partition to one branch or one or more members of that family, there is, subject to the exception, to which I shall presently refer, no assignment within the meaning of the Act. That exception arises where there is a document of partition, setting out the terms of the partition and allotting a particular item to the share of one member or one branch of the family. It is somewhat curious that there is no reported judgment dealing with what I have characterised as the exception. Mr. Balakrishna Eradi, however, took great pains and has been able to show me some unreported judgments of Wadsworth and Patanjali Sastri, JJ., which place the matter beyond all doubt. In C.R.P. No. 348 of 1939, Wadsworth and Patanjali Sastri, JJ., held following the decisions in Venkatadri v. Lakshminarasimha (1910) 21 M.L.J. 80 and Muthar Sahib v. Kadir Sahib : (1905)15MLJ384 , that if there was a writing at the time of the partition evidencing the allotment of a promissory note debt to a person, that would be a legal assignment giving him the position of a creditor under the note and that if he was the assignee of the former creditor, the definition of' creditor ' in Madras Act IV of 1938 would make him the ' same creditor.' In G. R. P. No. 971 of 1942, the principle was applied to a case where the partition was evidenced by a partition decree. If the debt is a mortgage debt, for the purpose of a legal assignment, a registered document would undoubtedly be necessary, but that requirement is satisfied in this case as admittedly the deed of partition executed by Appu Pattar and Srinivasa Pattar was registered.
12. However the position might have stood if there had been no registered deed of partition, it cannot, in the light of the above decisions, be denied that there was a legal assignment of the mortgage to the respondent by a registered deed of partition executed in his family in 1930. This position is well established for the purpose of Madras Act IV of 1938. It is therefore unnecessary to inquire whether and to what extent a partition can be regarded as an assignment for the purpose of other statutes or where questions other than those which arise under Madras Act IV of 1938 fall to be considered. That is why I have refrained from discussing the several decisions which have been quoted by the learned advocate for the appellant and by Mr. Swaminatha Aiyar the learned advocate for the respondent--decisions which have analysed the character of a partition transaction for the purposes of several statutory enactments.
13. The only point that arises in this civil miscellaneous second appeal being one under Madras Act IV of 1938, I am bound by the decisions already quoted, to hold that the appellant has succeeded in establishing that there is an identity of the creditor, so that he can claim the benefit of the scaling down of the debt tracing back its history to the promissory note of 1923. The learned Counsel agree that on this basis the correct amount is what was fixed by the learned District Munsiff.
14. I should notice one further argument raised by Mr. Swaminatha Aiyar on behalf of the respondent. Adverting to the fact that 15 out of the 18 items of property were usufructuarily mortgaged to the respondent under Ex. P-2, Mr. Swaminatha Aiyar argued that his client was entitled to the benefit of Section 10(2)(i) of the Act, which provides that nothing contained in Sections 8 and 9 shall affect any mortgage by virtue of which the mortgagee is in possession of the property mortgaged, where no rate of interest is stipulated as due to the mortgagee. This contention did not find acceptance with either of the Courts below. I too am unable to accept it. On a reading of Ex. P-2 it is clear that there is a single debt of Rs. 1,910. The security for the debt consists of 18 items of property. As already stated, 15 out of them were put in the possession of the mortgagee while the other 3 items continued to be in the possession of the mortgagor. It would not therefore be correct to describe the transaction as a mortgage, by virtue of which the mortgagee is in possession of the property mortgaged as admittedly the mortgagee is in possession only of a portion of the property mortgaged. Having regard to the terms of Ex. P-2 it is not also possible to read it as embodying two transactions; one a usufructuarily mortgage in regard to certain items for one amount and the other a deed of hypothecation in respect of other items for another amount. There is, as already stated, a single amount for which all the properties are given as security and the debt is not split up as between, if I may so describe it the usufructuarily mortgaged portion of it and the hypothecated part of it. In this view, the respondent is not entitled to the benefit of Section 10(2)(i) of the Act.
15. The result is that the decree of the lower appellate Court must be set aside and the decree of the first Court must be restored with costs here and in the lower appellate Court.
16. No leave.