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S. Vaidyanatha Aiyar Vs. V.N. Srinivasa Aiyar - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtChennai
Decided On
Reported in(1942)1MLJ596
AppellantS. Vaidyanatha Aiyar
RespondentV.N. Srinivasa Aiyar
Excerpt:
- - it may at first sight appear that this is putting rather a heavy weight on the word 'debt';but clearly the definition in the act has to be applied unless it is obviously inapplicable having regard to the context. it seems to us that there is a good deal of logic in this reading of the section......a non-agriculturist. in 1933, he and his brother (who is an agriculturist) were members of a joint family and they executed a promissory note which is said to be in discharge of a family liability. in november, 1934, there was a partition between the two brothers and at that partition the debt . in question was allotted to the present petitioner, though of course this arrangement would not bind the creditor. in 1936, the creditor got a decree against both the brothers. the decree is based on the joint liability of the brothers under the promissory note and does not proceed on any family liability. now the agriculturist brother has taken no action to get his liability under this debt scaled down. but the petitioner (the non-agriculturist brother) tried to stop execution against.....
Judgment:

Wadsworth, J.

1. This civil revision petition arises out of an application for stay of execution under Section 20 of Madras Act IV of 1938. The petitioner, who was also the applicant before the lower Court is admittedly a non-agriculturist. In 1933, he and his brother (who is an agriculturist) were members of a joint family and they executed a promissory note which is said to be in discharge of a family liability. In November, 1934, there was a partition between the two brothers and at that partition the debt . in question was allotted to the present petitioner, though of course this arrangement would not bind the creditor. In 1936, the creditor got a decree against both the brothers. The decree is based on the joint liability of the brothers under the promissory note and does not proceed on any family liability. Now the agriculturist brother has taken no action to get his liability under this debt scaled down. But the petitioner (the non-agriculturist brother) tried to stop execution against himself on the ground that by reason of Section 14 of the Act this was a family debt the decree for which could only be executed against him to the extent of his proportionate share in the debt. The lower Court repelled this contention mainly on the ground that the petitioner was really liable for the whole of the debt by the arrangement with his brother and that he was not an agriculturist and therefore not entitled to the benefits of the Act.

2. It has been argued before us that when once it is established that the debt in question was a family debt before partition, Section 14 comes into play and the joint decree has to be sealed down at the instance of the non-agriculturist judgment-debtor on the basis that he should be liable only for his proportionate share of the debt and that the other portion due from the agriculturist member will have to be scaled down. This argument assumes that the word 'debt' in Section 14 is not used in the technical sense given to it by the definition in Section 3 of the Act. Under Section 3 (iii) 'debt' means any liability in cash or kind whether secured or unsecured due from an agriculturist, and we have held that in deciding whether a debt is one due from an agriculturist, we have to have regard to the state of affairs existing at least on 1st October, 1937, since the definition of agriculturist cannot properly be applied to tie status of any one as it existed at an earlier period. It is argued by Mr. Venkatarama Aiyar for the respondent that unless there is something repugnant in the context, the definition of 'debt' found in the Act has to be applied and the result of applying that definition to Section 14 would be to give the operative words a meaning more or less as follows:

Where in any Hindu family, whether divided or undivided at the time of the application, some of the members who are liable in. respect of what was at the commencement of the Act a joint family debt due from an agriculturist family, are not agriculturists, while others are agriculturists.

and so on.

It may at first sight appear that this is putting rather a heavy weight on the word 'debt'; but clearly the definition in the Act has to be applied unless it is obviously inapplicable having regard to the context. It has been suggested that the words 'whether divided or undivided' make it clear that the Legislature when talking of a family debt are using the word 'debt' in its ordinary dictionary sense and meant to include any liability which could be traced back to a joint family liability. 'But it seems to us that full effect can be given to the words 'whether divided or undivided' even when the word 'debt' is interpreted according to the definition in the Act. This can be done by relating the word 'debt' to the state of affairs existing at the time contemplated in that definition, viz., the state of affairs at or just before the commencement of the Act and by relating the words 'whether divided or undivided' to the state of affairs existing at the time when the question of liability comes before the Court. It seems to us that there is a good deal of logic in this reading of the section. There is, after all, no particular reason to give any special relief in respect of a debt merely because it can be traced back historically to a family debt. In ordinary cases, when an agriculturist and non-agriculturist are jointly liable for a debt, the Act does not provide that the non-agriculturist shall be liable only for half the debt and that the agriculturist shall get the other half scaled down. The only reason for applying a special rule to family debts seems to us to lie in the fact that by the definition of 'person' in Section 3 of the Act a joint Hindu family can itself be an agriculturist and a debt due by such a family can itself be the subject of the scaling down process; and in such a case the Legislature has endeavoured to solve the problem of what is to be done when one of the coparceners is disqualified from relief, he being a non-agriculturist in his personal capacity though the family as a whole is an agriculturist and also what is to happen when the debt at the commencement of the Act was one which would come under the operation of the Act but by subsequent changes in the constitution of the family, the liability comes to be split up between individuals, some of whom are agriculturists and others are non-agriculturists. To deal with these two sets of circumstances, the Legislature seems to have enacted Section 14, so that the debt which at the commencement of the Act was a family debt due by the statutory person possessed of an agriculturist character, could be scaled down when one or more of the persons liable for that debt had no equitable right to demand relief, they being non-agriculturists. With that object in view the section was enacted giving the creditor the right to proceed in full only for the proportionate share of the debt due from the non-agriculturist member of the family, even though he had subsequently become divided, and restricting the scaling down process to the proportionate liability of the agriculturist member. It is not, in our opinion the intention of this section to confer upon a non-agriculturist the power to get rid of his liabilities in a case in which those liabilities do not necessarily form part of a major liability to which the Act necessarily applies. In this view we are of opinion that the term 'debt' in Section 14, must be restricted to debts due from an agriculturist and that the term 'family debt' therefora necessarily means a debt due from a family which was an agriculturist at the commencement of the Act or at least on 1st October, 1937. It follows that the liability which forms the subject of the decree in the present case is not a family debt and that the petitioner is entitled to no relief. The petition is therefore dismissed with costs.


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