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Adaikkaji Vs. Abdul Rahman - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Reported in(1983)2MLJ152
AppellantAdaikkaji
RespondentAbdul Rahman
Excerpt:
.....was added another liability of the respondent on the basis of a promissory note endorsed in favour of the petitioner. clearly therefore section 12(d) of the act pressed into service by the learned counsel for the petitioner would not apply. three conditions have to be satisfied before this exemption from the operation of the provisions of he act can be availed of :(1) the debt must be payable on 1st january, 1980, (ii) such a debt must be payable to a widow and (iii) such a widow must not be owning property including the principal amount of the debt, the market value of which is in excess of rs. 2 would thus clearly establish that the petitioner ceased to be a widow. thus, the second requirement for the applicability of section 12(1) has not been satisfied in this case. 25,000 thus, in..........claiming that he is a debtor whose annual income is less than rs. 2,000 and that therefore, the decree debt should be deemed to be discharged by virtue of the provisions of the act. that application was resisted by the petitioner on the ground that the respondent is not entitled to any relief as he was not a debtor and that the debt in question would ' not be covered by the petitioner who is a widow owning less than rs. 10,000 worth of properties was also raised and on this ground also, the non-applicability of the provisions of the act was put.2. before the court below, the respondent examined himself as p.w. 1 and another as p.w. 2 while the petitioner was examined as r. w. 1. on a consideration of the evidence, the court below found that the respondent is a debtor and was getting.....
Judgment:
ORDER

V. Ratnam, J.

1. The decree-holder in O.S. No. 658 of 1970 District Munsif's Court, Pudukottai, is the petitioner in this civil revision petition. She had entered into an agreement with the respondent herein and another on 20th November, 1968, for the sale of certain properties to her and had also paid an advance of Rs. 1,500. The sale of the properties did not take place as agreed to between the petitioner and the respondent and the petitioner sought the recovery of the advance paid. In addition, a sum of Rs. 555 was also due to the petitioner on the footing of a promissory note endorsed in her favour and executed by the respondent and another. On 27th January, 1971, the petitioner obtained a decree against the respondent and another for the recovery of a sum of Rs. 2,216.28 with interest at 6% per annum on Rs. 2,000 from 3rd August, 1970 in respect of the two aforesaid claims. In order to realise the amounts due to the petitioner under the decree, the petitioner took out execution proceedings. At that stage, the respondent herein filed E. A. No. 458 of 1980 invoking the provisions of Tamil Nadu Act XIII of 1980 (hereinafter referred to as the Act) and claiming that he is a debtor whose annual income is less than Rs. 2,000 and that therefore, the decree debt should be deemed to be discharged by virtue of the provisions of the Act. That application was resisted by the petitioner on the ground that the respondent is not entitled to any relief as he was not a debtor and that the debt in question would ' not be covered by the petitioner who is a widow owning less than Rs. 10,000 worth of properties was also raised and on this ground also, the non-applicability of the provisions of the Act was put.

2. Before the Court below, the respondent examined himself as P.W. 1 and another as P.W. 2 while the petitioner was examined as R. W. 1. On a consideration of the evidence, the Court below found that the respondent is a debtor and was getting only a monthly income of Rs. 100. It was father found that the petitioner had married one Sevanthi as her second husband and therefore was not a widow as to disentitle the respondent from invoking the provisions of the Act. Ultimately, on the finding that the respondent is a debtor and the debt is act exempt from the provisions of the Act, the application filed by the respondent under Section 4 of the Act praying for the discharge of the decree debt was allowed. It is the correctness of this order that is challenged in this civil revision petition,

3. The learned Counsel for the petitioner first contended that the decree in question enabling the petitioner to recover the advance paid by her would not be in the nature of a debt within the meaning of the Act and therefore, the provisions of the Act would not apply. On the other hand, the learned Counsel for the respondent submitted that a decree debt as in this case would also be included within the meaning of a debt in the Act and would therefore be subject to the provisions of the Act. Section 3(c) of the Act defines a debt as meaning any liability in cash or in kind whether secured or unsecured and whether decreed or not, but does not include arrears of taxes to the Central Government or the State Government or any local authority. In this case, as seen earlier, the suit churn comprised of the advance amount taken by the respondent under the terms of the agreement for the sale of the properties and also the amount due under a promissory note executed by him. That was a liability of the respondent to repay the amounts in cash and therefore, the first part of the definition of a debt is satisfied. In addition, in this case, such liability of the respondent had also been recognised by a decree of Court. Under these, circumstances, the liability of the respondent would undoubtedly be a debt for the purposes of the Act.

4. The learned Counsel for the petitioner next submitted that even assuming that the liability of the respondent is in the nature of a debt, the provisions of the Act would not apply to such a debt as the liability arose out of breach of trust or was in the nature of a tortious liability. In other words, according to the learned Counsel for the petitioner, Section 12(d) of the Act would apply to exempt this debt from the operation of the provisions of the Act. Per contra, the learned Counsel for the respondent contended that the claim of the petitioner against the respondent was a simple money claim unrelated to any trust or tort and therefore, Section 12(d) of the Act would not apply.

5. It has earlier been seen that the liability of the respondent arose on the basis of an agreement to sell executed by the respondent in favour of the petitioner pursuant to which an advance of Rs. 1,500 was also received by the respondent. To that was added another liability of the respondent on the basis of a promissory note endorsed in favour of the petitioner. The liability thus incurred by the respondent was purely contractual. There was no question of the money having been paid to the respondent on trust and the respondent having committed a breach thereof. Equally, there was no question of any liability arising in favour of the petitioner on the basis of any tortious act of the respondent. Clearly therefore Section 12(d) of the Act pressed into service by the learned Counsel for the petitioner would not apply.

6. Lastly, the learned Counsel for the petitioner submitted that the debt in this case would be exempt under Section 12(1) of the Act on the ground that the petitioner is a widow not owning property the market value of which exceeds Rs. 25,000. In this connection, the learned Counsel for the respondent pointed out that even in the course of the suit the petitioner had described herself as the wife of Sevanthi and that her evidence discloses that she had married again and therefore, she cannot be permitted to claim exemption from the operation of the provisions of the Act on the ground that she is a widow.

7. Section 12(1) of the Act states that any debt or debts payable on 1st January, 1980 to a widow who does not own property, including the principal amount of the debt, the market value of which is not in excess of Rs. 25,000 shall not be subjected to the provisions of the Act. Three conditions have to be satisfied before this exemption from the operation of the provisions of he Act can be availed of : (1) the debt must be payable on 1st January, 1980, (ii) such a debt must be payable to a widow and (iii) such a widow must not be owning property including the principal amount of the debt, the market value of which is in excess of Rs. 25,000 There is no dispute in this case that the debt was payable on 1st January, 1980 and there-fore, one of the conditions for the applicability of Section 12(1) of the Act is fulfilled. Regarding the status of the petitioner as a widow, the evidence of P.W. 1 is to the effect that after the death of her first husband, the petitioner had married again and had also four children through the second marriage. In the course of the cross-examination, P.W. 1 deposed that on the death of the first husband, the petitioner married her brother-in-law and that the marriage was celebrated 16 years ago in Udumam patti. P.W. 2, in the course of his chief-examination would state that after the death of hsr first husband, the petitioner married Sevanthi and that is known to him. En the coarse of his cross-examination P.W. 2, stated that he belongs to the same place as ttn petitioner and that according to the practice of the community, the second marriage of the pstitioner with Sevanthi was celebrated. The petitioner, in the coarse of hsr evidence as R. W. 1 would no doubt state that she did not marry Sevanthi for a second time, but in the course of the cross-examination admitted that remarriage is permissible, that except her, Sevanthi had not married anybody else and that the voters' list would also disclose that she is the wife of Sevanthi. Her further admission is that Sevanthi has been shown as the father of her children. Besides in the suit, the petitioner has been described as the wife of Sevanthi. The evidence of P.W. 1 and P.W. 2 would thus clearly establish that the petitioner ceased to be a widow. This is supported by the admissions of the petitioner as R. W. 1. In view of this evidence, the petitioner cannot claim that she is still a widow and therefore the provisions of the Act would be inapplicable to the debt in question. Thus, the second requirement for the applicability of Section 12(1) has not been satisfied in this case. Even according to the evidence of P.W. 1, the petitioner owns properties worth Rs. 22,000 and that has been reiterated in his cross-examination. The evidence of R. W. 1 is to the effect that she owns 2/3 acre of Nanja and about 3 acres of Punja worth about Rs. 2,000 in addition to a hut valued at about Rs. 150. There has been no effective cross-examination of the petitioner on this aspect of the matter. It is therefore established on the evidence that the petitioner does not own property, the market value of which is not in excess of Rs. 25,000 Thus, in this case, though two of the requirements for the applicability of Section 12(1) of the Act are satisfied, the other essential condition has not been fulfilled and therefore, the petitioner cannot claim that the debt is exempt from the operation of the provisions of the Act.

8. P.W. 1 has deposed that he has put up a hut in an extent of 2 cents in poramboke and that he does not have a patta in respect of that. Besides, he has stated that he owns five cents of Punja in Kudimiyanmalai and that that is lying fallow. He would speak to his earning a sum of Rs. 100 per month in a charcoal shop. In the course of the cross-examination of P.W. 1, nothing has been elicited to discredit this. No evidence contra has also been placed by the petitioner. It is therefore established by the evidence of P.W. 1, that he is a debtor whose annual household income does not exceed Rs. 4,800.

9. The respondent having thus established that he is a debtor and that the decree in question would also be a debt for the purposes of the Act and the petitioner not having substantiated her claim that the debt would be exempted from the provisions of the Act, the Court below was quite right in having allowed the application filed by the respondent herein and in declaring the decree debt discharged as per the provisions of the Act. There is no illegality or irregularity in the order of the Court below which requires to be corrected in the exercise of the revisional jurisdiction of this Court under Section 115, Civil Procedure Code. Consequently the civil revision petition fails and is dismissed; but there will be no order as to costs.


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