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Narayana Vadivoo Vs. Mohamed Ebrahim - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1984)2MLJ220
AppellantNarayana Vadivoo
RespondentMohamed Ebrahim
Cases ReferredKaruppana Thevar v. Karuppiah Thevar
Excerpt:
- - as already seen, the 1st defendant failed in his attempt to get the benefits of the provisions of act 13 of 1980 on an earlier occasion......lower court found that the petitioner is not entitled to the benefits of act 13 of 1980, since the income of defendants 1 and 2 comes to rs. 5,500/- and it dismissed the petition.3. the point for consideration in this revision is whether the income of the petitioner, who is the second defendant in the suit, is the only criterion that has to be taken into account for assessing the income of the debtor as contemplated under section 3 of the act or whether the total income of both the defendants who are brothers has to be taken as income. in the instant case before us, it is common ground that the 1st defendant had filed a petition claiming benefits of the act on an earlier occasion before the lower court and that the same was dismissed. the second defendant as p.w. 1 in his evidence has.....
Judgment:
ORDER

S. Swamikkannu, J.

1. The petitioner has filed this revision against the order dt. 6-1-1982 in E.A. No.1141 of 1981 in O.S. No. 163 of 1974, on the file of the Principal District Munsif, Nagercoil. The said execution application was filed to discharge the decree debt under Act 13 of 1980. The case of the petitioner before the lower court is that his annual income is Rs. 2,500/- that he has no immovable property worth Rs. 25,000/- and that his only residential house is worth Rs. 1,800/- Hence, the petitioner claimed benefit of Act 13 of 1980.

2. On the other hand, in the counter filed by the respondent before the lower court it is inter alia contended that the petitioner is the 2nd defendant and the 1st defendant is his brother. The 1st defendant filed a similar petition under Act 13 of 1980 and it was dismissed. Subsequently, he paid Rs. 200/- and filed petition for adjournment of sale. Now the 2nd defendant has filed this petition in order to drag on the decree-holder from realising the fruits of the decree. The 2nd defendant-petitioner, Narayana Vadivu examined himself as P.W. 1 and one Ponkathaperumal was also examined on his behalf as P.W. 2. Ex.A. 1 copy of income certificate, Ex.A-2 another copy of income certificate, Ex.A-3 ration card, Ex.A-4 Report of the Village Officer and Ex.A-5 copy of pay certificate of Ponkathaperumal, are marked. On behalf of the respondent one Abdul Rahim (R.W. 1) was examined and no document was filed by the respondent. On the point whether the petitioner is entitled to the benefits of Act 13 of 1980, the lower court found that the petitioner is not entitled to the benefits of Act 13 of 1980, since the income of defendants 1 and 2 comes to Rs. 5,500/- and it dismissed the petition.

3. The point for consideration in this revision is whether the income of the petitioner, who is the second defendant in the suit, is the only criterion that has to be taken into account for assessing the income of the debtor as contemplated under Section 3 of the Act or whether the total income of both the defendants who are brothers has to be taken as income. In the instant case before us, it is common ground that the 1st defendant had filed a petition claiming benefits of the Act on an earlier occasion before the lower court and that the same was dismissed. The second defendant as P.W. 1 in his evidence has stated that he is residing at Poomathianvilai in Ethamozhi village, that his annual income is Rs. 2,500/- and that Ex.A-1 is the copy of the certificate issued by the Tahsildar. P.W. 2 is the first defendant. He stated that his annual house-hold income is Rs. 3,000/-. Ex.A-3 is the ration card and Ex.A-4 is the certificate of the village officer and they show that P.W. 2 is residing at Neendakarai village. R.W.l's wife's' brother is the decree-holder. He stated that the first defendant is getting Rs. 500/- per month and the 2nd defendant is getting Rs. 2,000/- per month. The lower court had discussed the evidence thus available with reference to the question it posed to itself, namely, whether the income of respondents 1 and 2 in the Execution Petition does not exceed Rs. 4,800/-. In other words, the total income has to be taken into consideration for assessing whether an independent debtor is eligible for the benefits of the provisions of Act 13 of 1980. According to Miss. O.K. Sridevi, learned Counsel for the second defendant, revision petitioner herein the said approach by the lower court is not correct. It is contended by the learned Counsel for the revision petitioner herein that though the decree in the suit was against both the defendants who are related as brothers, yet, inasmuch as the 2nd defendant alone has come forward with this petition, E.A. 1141/81, claiming the benefits of the Act, it is his income alone that has to be considered for holding whether the second defendant, revision petitioner herein, is entitled to the benefits of the provisions of Act 13 of 1980.

4. In support of her contention, Miss. O.K. Sridevi, learned Counsel for the revision petitioner herein, refers to the decision in Karuppana Thevar v. Karuppiah Thevar : (1982)1MLJ345 , for the proposition that the two brothers (judgment-debtors therein) cannot be taken as members of the family in the light of the definition in Section 3(e) of the term 'family' and that with reference to each of the individuals, the earnings of the family will have to be considered and so considered, the finding that the income of each of the brothers will be Rs. 3,800/- was not wrong and as the statute discharges the debt in such cases, the execution petition shall not be sustained.

5. It is further submitted on behalf of the revision petitioner that the 1st defendant who had been examined as P.W. 2 in this petition, need not be impleaded as the 2nd respondent, because the relief sought, namely, the benefits of Act 13 of 1980, is only to extinguish the debt which was incurred by the 2nd defendant and as such it is only the decree-holder that had been arrayed as the only respondent in this petition. This position is also conceded by the learned Counsel for the respondent in this civil revision petition.

6. The learned Counsel for the respondent in the civil revision petition contends that the approach by the lower court in taking the total income of both the brothers who are the defendants in the mortgage suit which was decreed against both of them, is correct inasmuch as the Tamilnadu Debt Relief Act, 1980 by its definition in Section 3, Clause (a) provides that 'annual house-hold income' means the aggregate of the gross annual income from all sources of all the members of a family during the year ending on the 31st December, 1979. As per Section 3, Clause (d) 'debtor' means any person from whom any debt is due and whose annual house-hold income does not exceed four thousand and eight hundred rupees. In this regard, the definitions of the words 'family' and 'person' in clauses (e) and (g) of Section 3 are also referred by the learned Counsel for the respondents herein. Section 3(e) defines 'family' as follows:

family in relation to a person, means the individual, the wife or husband, as the case may be, of such individual and their unmarried minor children.

Section 3(g) defines the word 'person' thus:

'Person' means as individual or a family.

By referring to Section 3, Clause (g), learned Counsel for the respondent submits that the word 'individual' occurring in the said definition of the word 'person' includes also 'individuals'. In support of this contention imputing the word 'individual' with the meaning in plural form, namely 'individuals', learned Counsel for the respondent refers to Section 3 of the Madras General Clauses Act, 1891 (Act I of 1891) which reads as follows:

3(35). Words in the singular shall include the plural; and the words in plural will include the singular.

As already seen, Ex.A-1, is the certified copy of the certificate issued by the Tahsildar to show that the income of the second defendant, revision petitioner herein, is Rs. 2,500/- per annum. Ex.A-2 is the copy of the certificate issued by the Tahsildar to the 1st defendant to show that the income of the 1st defendant is Rs. 3,000/- per annum. So, the lower court held that the total income is Rs. 5,500/- by adding both the incomes of P.W. 1 and P.W. 2 as per Exs.A-1 and A-2. Since this total income exceeds Rs. 4,800/-, the lower court held that the revision petitioner herein is not entitled to the benefits of Act 13 of 1980. In the instant petition before us, the second defendant, revision petitioner herein, younger brother of the 1st defendant, was examined as P.W. 2 before the lower court. As already seen, the 1st defendant failed in his attempt to get the benefits of the provisions of Act 13 of 1980 on an earlier occasion. Now, it is only the second defendant that claims the benefits of the provisions of Act 13 of 1980. In Karuppana Thevar v. Karuppiah Thevar : (1982)1MLJ345 , the judgment-debtors who were two brothers claimed in the course of execution proceedings against them the benefits of Tamilnadu Act 13 of 1980. It was found that their father had died leaving three sons and three daughters and his widow. It was also found that the income from the lands would be Rs. 7,000/- and that other income was Rs. 3,000/-. Under those circumstances, it was held in that case that the two brothers (judgment-debtors) cannot be taken as members of the family in the light of the definition in Section 3(e) of the term. In the instant case before us, the total income of the two defendants who are related as brothers was taken as the income for assessing the eligibility or otherwise of the 2nd defendant for the benefits of the provisions of the Act so far as the 2nd defendant is concerned. In the decision cited, namely, Karuppana Thevar v. Karuppiah Thevar : (1982)1MLJ345 , it was held that with reference to each of the individuals, the earnings of the family will have to be considered. In the instant petition before us it is common ground that the defendants are related as brothers and it is the second defendant who is the younger brother of the 1st defendant who has come forward with the petition before the lower court claiming the benefits of the Act. It is common ground that the decree is a money decree inasmuch as the suit on the mortgage was decreed against both defendants 1 and 2. Both the brothers are not claiming together the benefits of the Act under the petition in E.A. No. 1141 of 1981. Under the circumstances, this court is of the opinion that the total income of both the brothers cannot be taken as a criterion for assessing the eligibility or otherwise of the revision petitioner herein for the benefits of the provisions of the Tamilnadu Act 13 of 1980. It is common ground that both defendants 1 and 2 who are brothers have got interest in the property that was mortgaged in favour of the plaintiff-decree-holder, respondent herein. It is common ground that it is that property that had been brought to sale and during the course of the execution proceedings this E.A. No. 1141 of 1981 had been filed before the lower court by the 2nd defendant. Merely on the ground that the petition filed by the 1st defendant had been dismissed by the lower court on an earlier occasion, it does not mean that the present petition filed by the 2nd defendant alone should not be considered on merits. Under the circumstances, it is only his income, namely, the income of the 2nd defendant, that has to be taken into consideration for ascertaining whether he is eligible for the benefits of the Act or not. Section 3, Clause (d) of the Tamilnadu Debt Relief Act, 1980 provides that any person from whom any debt is due and whose annual household income does not exceed Rs. 4,800/- is a debtor. In the instant case, one of the defendants, namely, the 2nd defendant, claims the benefits of the Act. The Tamilnadu Debt Relief Act, 1980 defines 'family' under Section 3, Clause (3) that a 'family' in relation to a person means the individual, the wife or husband, as the case may be, of such individual, and their unmarried minor children. Clause (g) defines 'person' as an individual or a family. It is common ground that the property was mortgaged by both the 1st defendant and the second defendant in the instant case in favour of the decree-holder, respondent herein. Though the decree sought to be executed was against both the defendants, yet in the instant case before us, the second defendant alone claims the benefits of the provisions of the Tamilnadu Debt Relief Act, 1980. The income of the second defendant, revision petitioner herein, is proved to be only Rs. 2,500/- per annum. Taking into consideration his annual income he is entitled to the benefits of the provisions of the Act. Under the circumstances, it is clear by a close scrutiny of the provisions with the facts of the instant petition before us, that it is only the income of one of the mortgagors, namely, the second defendant herein, that has to be taken into consideration to ascertain whether he is eligible for the benefits of the Act. The two brothers, debtors herein, cannot be taken as members of the family in the light of the definition in Section 3(e) of the term. With reference to each of the individuals, namely, the first and the 2nd defendant herein, the earnings of the said individuals will have to be considered. So considered, the finding of the lower court that the total income, namely, Rs. 5,500/- was in excess of Rs. 4,800/- per annum and that the defendants are not entitled to the benefits of Act 13 of 1980, cannot be upheld. The income of the second defendant who is the petitioner in E.A. 1141/81 alone has to be taken into consideration and in that view, we find that the revision petitioner is entitled to the benefits of the provisions of the Act. The statute discharges the debt in this case.

7. In the result, the civil revision petition is allowed, the order of the lower court is revised to the effect that the revision petitioner is entitled to the benefits of the provisions of the Tamilnadu Act 13 of 1980. Under the circumstances, there is no order as to costs.


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