S. Nainar Sundaram, J.
1. The defendants is O.S, No. 890 of 1978 on the file of the District Munsif of Tiruvannamalai, are the petitioners in this revision. The respondent herein is the plaintiff in the suit. The defendants are the legal representatives one Natesa Gounder, who is no more. The first defendant is his widow; defendants 2 and 3 are his sons and defendants 4 and 5 are his daughters. The said Natesa Gounder executed a promissory note on 19th August, 1975 in favour of the plaintiff. After his death, the suit was laid by the plaintiff for recovery of the amounts due under the promissory note. In the present revision we are only concerned with the defence of the defendants that they are entitled to the benefits of the Tamil Nadu Debt Relief Act, XIII of 1980, hereinafter referred to as the Act. The First Court contenanced the plea of the defendants that they arc entitled to the benefits of the Act and dismissed the suit as having abated, but without costs. The plaintiff filed an appeal, A.S. No. 21 of 1981 which was heard and disposed of by the Subordinate Judge of Tiruvannamalai, and the appellate court came to a different conclusion and held that the defendants could not claim the benefits of the Act and in this view, reversed the judgment and decree of the first court and decreed the suit as prayed for with casts throughout. That is how this revision has come to be preferred by the defendants.
2. Mr. R.S. Venkatachari, learned Counsel for the defendants, submits that two reasonings weighed with the appellate court and they are not tenable in law and expatiating his submissions, learned Counsel solicits interference in revision. The first reasoning is that the benefits of the Act could be availed of only by the original debtor, viz., Natesa Gounder, and not by the defendants, who are his legal representatives.
Section 3(c) of the Act defines debt as follows:
(C) debt means any liability in cash or in kind whether secured or unsecured and whether decreed or not, but does not include arrears of taxes due to the Central Government or a State Government or a Local Authority-
3. Section 3(d) defines debtor as follows:
2(d) 'Debtor' means any person from whom any debt is due and whose annual household income does not exceed four thousand and eight hundred rupees:
Person is defined by Section 3(g) as meaning an individual or a family, 'Family' is defined by Section 3(e) of the Act as follows:
(e) '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, 'Explanation, For the purpose of this clause 'Minor' means a person who has not completed his or her age of eighteen years.
4 There is no scope for limiting the applicability of the provisions of the Act only to the person, who was the original debtor. If the liability could be fastened on the legal representatives of the original debtor, they could definitely come within the ambit of the Act, Case law under the Tamil Nadu Agriculturists Relief Act, IV of 1938, is clear and it has recognised that the said Act was not confined to personal inability but also to liability of a person by virtue of his possession of property 'Judgment-debtor' within the meaning of the Act will also include his legal representatives and assigns. So far as the Act is concerned, the meanings attached to 'debt' and debtor are wide enough to take in even legal representatives of the original debtor, provided the liability is burdened on such legal representatives. In this view it is not possible to sustain the first line og reasoning advanced by the appellate court to negative the please of the defendants
5. The second reasoning that has waighed with the appellate Court is that for the purpose of finding out as to whether the defendants fulfilled the definition of 'debtors' their joint 'annual house-hold income' must betaken as a whole and not their individual 'annual household income'. Section 3(a), of the Act, while defining debtor as we saw above, states that this 'annual household income' should not exceed four thousand and eight hundred rupees.
6. Section 3(a) of the Act defines 'annual household income' in the following terms: (a) 6 annual household income' means the aggregate of the gross annual income from all sources of all the members of a family during the year ending on 31st December, 1979.
7. According to the evidence on behalf of the defendants, given through the second defendant as D.W. 1. they own 8 acres of punja lands and 5-45 acres of nanja lands and the lands are their ancestral properties. Even assuming that the laods were the separate properties of Natesa Gounder, on the death of Natesa Gounder, devolution of defined interest to each of the defendants had taken place. Viewed from either of the angles, each of the defendants was and is having a separate interest in the lands. May be, a division as such has not taken place amongst the defendants. The relationship amongst the defendants being what it is, they cannot come within the meaning of a family as defined in Section 3(e) of the Act. Where the liability is joint and several and where it is permissible to agitate for and obtain reliefs under the Act separately for each of the several debtors, their case as such cannot be assessed jointly but should be assessed separately. Section 4 of the Act grants reliefs from indebtedness, The proviso to Clause (6) of Sub-section (1) of Section 4 states that where any suit or other proceeding is instituted jointly against the debtor and any other person, nothing in the said section shall apply to the maintainability of such suit or proceeding in so far as it relates to such other person. This 'proviso practically settles the controversy and the case of each of the several debtors, even where their liability is joint and several, has got to be adjudged separately unless there is scope to bring the case within the meaning of a family'as defined in Section 3(e) of the Act. There is no such possibility in the instant case. A similar view has been taken by Sethuraman J. in Karuppanna Thevar v. S.R. Kuruppiah Thevar : (1982)1MLJ345 where the learned judge dealt with a case of two brothers who, though held properties jointly were found to be entitled to specific shares and judged on that basis, their income did not exceed the prescribed limit. The learned Judge declined to bring the two brothers within the category of 'a family' as defined in the Act. In the instant case, the factual finding is that the 'annual household income' during the year ending on 31-12-1979 from the lands was Rs. 10,000/-We are having five sharers. Either on the basis that the lands are ancestral or on the basis that they belonged to Natesa Gounder separately, definitely the individual share of the income of each of five sharers will not take them outside the benefits of the Act. Hence, this reasoning of the appellate Court also cannot be sustained.
8. Mr. Navaneethakrishnan, learned Counsel appearing for the plaintiff, wants to submit that the defendant will come within the mischief of some of the exemptions set out in the proviso to Section 3(d) of the Act. No such plea has been put forth before the two Courts below, and the rule is well settled that where a person is shown to come apparently within the meaning of debtor under the debt relief statutes, the burden of proving that he is disqualified under one or the other of the provisos lies on the creditor. As stated above, no such question was mooted out for consideration by the plaintiff, the creditor, and it is too late in the day to rake up this question at the revisional stage. For all these reasons, I am obliged to interfers in revision and accordingly, the revision is allowed, the judgment and decree of the appellate Court are set-aside and those of the first Court dismissing the suit, are restored. Considering the nature of the litigation, I direct the parties to bear their respective costs throughout.