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Sara Nisha and ors. Vs. S. Raju and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1984)2MLJ152
AppellantSara Nisha and ors.
RespondentS. Raju and anr.
Cases ReferredKona Hasan Fathima Bivi v. Mohammed Mohaideen Nachier
Excerpt:
- .....is usurious and untenable. however, the defendants are entitled to the benefits adumberated in tamil nadu act 38 of 1972 and hence the debts were to be sealed down under the said act.3. on the above pleadings the learned subordinate judge framed the following issues:1. whether the interest claimed is excessive?2. to what amount the plaintiff is entitled?3. to what relief?4. it is true that out of the pleadings another point for determination did arise and that is, whether the plaintiff has proved the borrowing and the execution of the mortgage. as a matter of fact, it is contended before me that on the averment in the written statement there is a clear indication that due execution of the mortgage was denied, that as the plaintiff had not examined any of the attesting witnesses as.....
Judgment:

K. Shanmukham, J.

1. The defendants, who are the legal representatives of the deceased mortgagor, are the appellants in this appeal. The appeal is directed against the judgment and decree of the learned Subordinate Judge of Coimbatore made in O.S. No. 586 of 1975. The said suit is by the first respondent mortgagee for recovery of Rs. 14,568.75 due on the mortgage exhibited as A. 1, dated 6.6.1968 executed by the deceased Pandit Jayalani in the first respondent's favour. At the time of the suit, as the original mortgagor was dead the first respondent filed the said suit as against the legal representatives of the deceased mortgagor for the recovery of the amount due on the mortgage deed.

2. In the written statement filed by the first defendant, which was adopted by the other defendants, the following defence was raised. The plaintiff is put to strict proof that the deceased Jayalani borrowed and executed the suit mortgage. In any event the interest claimed is usurious and untenable. However, the defendants are entitled to the benefits adumberated in Tamil Nadu Act 38 of 1972 and hence the debts were to be sealed down under the said Act.

3. On the above pleadings the learned Subordinate Judge framed the following issues:

1. Whether the interest claimed is excessive?

2. To what amount the plaintiff is entitled?

3. To what relief?

4. It is true that out of the pleadings another point for determination did arise and that is, whether the plaintiff has proved the borrowing and the execution of the mortgage. As a matter of fact, it is contended before me that on the averment in the written statement there is a clear indication that due execution of the mortgage was denied, that as the plaintiff had not examined any of the attesting witnesses as per the mandatory provision of Section 68 of the Evidence Act, the mortgage deed has not been proved according to law and that consequently the suit is liable to be dismissed straightaway. It is therefore, necessary to refer to Section 68 of the Evidence Act, which reads as follows:

If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence.

(Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied).

It is clear from the plain meaning of the said provision that unless its execution by the person by whom it purports to have been executed in specifically denied, it shall not be necessary to call an attesting witness in proof of the execution of the said document. (underlining by me).

5. The short question, therefore, is whether there had been a specific denial in the written statement. Before I advert to the said question, I shall point out that the usage of the adjective, 'specific' to the word 'denial', is not superfluous, but is deliberate. According to the Concise Oxford Dictionary, Sixth Edition, 'specific' means definite, distinctly formulated. The employment of the said word is therefore to emphasise that 'mere denial' would not attract the operation of the said provision. The averment, 'that the plaint allegations are denied, 'read disjunctively or conjunctively with the other averment, 'that the plaintiff is put to strict proof of the allegation', will not in my anxious consideration amount to specific denial. On the other hand, it is a mere denial. Viewed from another angle, the above construction gains support. That is the very purport of the pleadings is to put the other side with reasonable notice of his case or defence. When the legislature employed the word, 'specific' it intended that the defence about denial of execution should be unambiguous so as to indisputably convey that the execution is denied, so that the person who relies upon the document is put on guard.

6. It is immediately necessary to refer to the decision of the Privy Council reported in Surendra Bahadur v. Behari Singh which was very much pressed into service by the learned Counsel for the appellants to support his contention that the averment in the written statement in the instant case is almost similar to the terms in the written statement dealt with in the Privy Council case. A careful reading of the decision of the Privy Council will indicate that the Privy Council was influenced by two vital factors to hold that there was a specific denial. They are: (1) the defence taken in the written statement is that the defendant did not admit the execution and (2) there was a hot contest in the corurse of trial about the due execution of the deed. In my opinion, when execution or attestation is hotly contested, an opportunity is made available to the party who rests his claim on such document to examine any of the attesting witnesses or to prove the document as provided in law. If, in spite of such opportunity being given, the claimant falls to comply with Section 68, it is but reasonable to hold that the document is not proved. To reiterate, in the Privy Council case even at the time of trial there was a hot contest about the due execution of the document. Obviously, the Privy Council took into consideration that besides the averment in the written statement the claimant did not care to examine the attesting witnesses even though he had a reasonable opportunity and therefore, their Lordships of the Privy Council held that there was not proof of due execution. I must also emphasise that the Privy Council was not really concerned with the question whether there was a specific denial in the written statement. As a matter of fact in that case one of the attesting witnesses was examined, but the High Court did not believe his evidence and therefore held that the document was not proved. The Privy Council accepting the findings rendered by the High Court held that there is no proof of due execution.

7. Immediately it is relevant to notice whether there was any such hot contest in the instant case about the execution or attestation of the mortgage deed. While P.W.I had spoken in chief examination that the deceased executed the mortgage deed, Exhibit A, that the attesting witness Muthukrishnan attested Exhibit A, that he could not remember the other attesting witness, that when the attesting witness signed the executant Pandit Jayalani saw their attesting the document and that the attesting witnesses also did witness Jayalani executing the document, in cross examination none of these vital statements was ever challenged at the instance of the defendants (appellants herein). In such a case I am unable to comprehend as to how there was any hot contest in the instant case as was done in The Privy Council. Had there been any hot contest certainly the plaintiff would have had an opportunity to examine the attesting witness. Therefore, I am clearly of the opinion that the ratio in the Privy Council case would not really help the appellants.'

8. Learned counsel for the first respondent/ plaintiff invited my attention to the following decisions in support of his contention that the averment in the written statement in the instant case would not amount to a specific denial within the meaning of Section 68 of the Evidence Act, viz., Vedachala Chettiar v. Ameena Bi Ammal : AIR1944Mad121 and Kumaraswami Pillai v. Ramaswami Konar (1955) 68 L.W. 417, while the other side brought to my notice the case reported in K. Narasimhappa v. Lakkanna A.I.R. 1959 Mys. 148. I must immediately say that the decision of the Privy Council was not brought to the notice of the learned Judges who constituted the Full Bench in the case reported in Vedachala Chettiar v. Ameena Bi Ammal : AIR1944Mad121 . It was held by the Full Bench that a plea that the mortgage represented a sham and nominal transaction does not amount to a specific denial of execution as envisaged by Section 68 of the Evidence Act. It is possible to contend that such a plea implied the admission of the execution. The facts in the other case reported in Kumaraswami Pillai v. Ramaswami Konar, 68 L.W. 417, are on all fours with the facts of the present case. In that case, in the written statement of the defendant the contention was that the plaintiff is put to strict proof of the truth of a mortgage mentioned in paragraphs 4 and 5 of the plaint. According to the learned Judge such a plea would not mean that there was a specific denial of the due execution of the mortgage. With great respect to the learned Judge, I adopt his ratio. Further, even the decision of the Mysore High Court does not support the appellant. The relevant averment in the written statement in that case proceeded that the document is not a genuine document. There were other averments peculiar to that case, for it is further alleged that the plaintiff and the first defendant have colluded and brought into existence the mortgage bond. It is in those circumstances, the learned Judge of the Mysore High Court held that the above plea would not amount to specific denial of the execution so as to attract Section 68 of the Evidence Act.'

9. In the foregoing circumstances, I have no hesitation to conclude that there had been no specific denial of due execution or attestation by the appellants (defendants) and therefore the non-examination of any of the attesting witnesses by the plaintiff is not fatal to his suit claim.

10. The other question that falls for consideration is whether the appellants are entitled to the benefits extended to the debtors under Tamil Nadu Act 38 of 1972. At the outset it is useful to examine whether any guidance can be had from the provisions rendered under the Madras Act 4 of 1938(i.e.Tamil Nadu Agriculturists' Relief) Act. For the learned Counsel for the appellant strongly relied on the decision of Ramanujam, J., reported in Rajammal v. Jabaki Ammal and Ors., 1976 T.L.N.J. 456. The learned Judge has held that it can be taken to be well established that the benefit conferred by the Act will be available not only to the original debtor but also to his legal representatives and assigns and that it is not necessary that the legal representatives and assigns should be personally liable for the debt.

11. The other decision, cited by the learned Counsel for the appellants is the ruling reported in Nageswaraswami v.Viswaswasundara Rao : AIR1953Mad873 . The passage that is pressed into service is found in page 256 and is as follows:

It is not necessary that the appellant for relief himself should be liable for the debt on the date that the Act came into force. The right to claim relief, as is well settled by decisions (vide Perianna v. Sellappa : AIR1939Mad186 , of the Madras High Court, is not confined to the person who originally contracted the debt, but is available to his legal representatives and assigns as well; nor is it necessary that the applicant should be personally liable for the debt.

12. The learned Counsel also referred to the definition of 'person' found in Section 3(i) of the Tamil Nadu Act 4 of 1.938 and the definition of the 'debtor' in Section 2(3) of the Tamil Nadu Act 38 of 1972. According to the learned Counsel there is practically no difference between the two. If a legal representative is entitled to claim benefit under Act 4 of 1938, it would automatically follow that the legal representative of the 'debtor' under Tamil Nadu Act 38 of 1972 is also entitled to claim the benefit under the Act provided every one of them is individually a debtor within the meaning of the Act. The learned Counsel also relied upon the decision of a Division Bench reported in Kona Hasan Fathima Bivi v. Mohammed Mohaideen Nachier : AIR1943Mad87 .

13. After careful consideration I am of the view that the decisions rendered under the Tamil Nadu Act 4 of 1938 can hardly be looked into for guidance in construing the provisions of Act 38 of 1972. The foremost consideration which prevailed upon me to take that view is that the provisions of Act 4 of 1938 are extended to an 'agriculturist' whether the debt is incurred by him or the debt has become payable by the legal representative of the deceased notwithstanding the fact that the deceased is not an agriculturist. Such is not the case in Act 38 of 1972. The definition of 'agriculturist' in Act IV of 1938 means a person who

(a) has a saleable interest in any agricultural or horticultural land in the State of Tamil Nadu which is assessed by the State Government to land revenue which shall be deemed to include peshkash and quit-rent, or which is held free of tax under a grant made, confirmed or recognised by Government; or

(b) holds an interest in such land under a landholder under the Tamil Nadu Estates Land Act, 1908(Tamil Nadu Act I of 1908) as tenant, ryot, or under-tenure-holder; or

(c) holds an interest in such land, recognised in the Malabar Tenancy Act, 1929(Tamil Nadu Act XIV of 1930); or

(d) holds a lease of such land from any person specified in Sub-clause (a), (b) or (c) or is a sub-lessee of such land.

14. Section 7 which defines, the debts payable by agriculturists to be scaled down, provides thus:

Notwithstanding any law, custom, contract or decree of Court to the contrary, all debts payable by an agriculturist on the 1st March, 1972 shall be scaled down in accordance with the provisions of this Chapter.

These two definitions make it amply clear that if a debt is payable by an agriculturist as on 1.3.1972, the same is liable to the scaled down as provided under the Act irrespective of the fact whether the debt was contracted by the said agriculturist or by his predecessor-in-title, who was not an agriculturist.

15. If we turn to the preamble of Act 4 of 1938, it is seen that the said Act is enacted to provide for the relief of certain indebted agriculturists in the State of Tamil Nadu. That will also indicate that the relief is extended to an agriculturist irrespective of whether he has personally borrowed or became liable to pay as legal representative of the deceased though the deceased was not an agriculturist. The material consideration, therefore is whether the debt was owing by 'an agriculturist as on 1.3.1972.

16. If we turn to the corresponding provisions viz., Section 2 in Act 38 of 1972, we find 'debt' and 'debtor' defined as under:

'debt' means any liability in cash or kind whether secured or unsecured, due from a debtor whether payable under decree or order of a civil or revenue Court or otherwise, but does not include rent as defined in Clause (9) and

'debtor' means any person from whom any debt is due.

Proviso to Section 2 in Tamil Nadu Act 38 of 1972 enumerates exemption. It is necessary to refer at this stage to the definition of 'creditor' and mortgagee in this Act. Section 2(1) defines creditor as follows:

'creditor' includes his heirs, legal representatives and assigns.

Section 6 defines mortgagee as follows:

'mortgagee' includes his heirs, legal representatives and assigns.

There is no definition so far as 'mortgagor' is concerned in this Act. In the absence of express conferment of the benefit on the legal representative of a debtor or the mortgagor, I am. unable to hold that the benefits extended to the debtor under the Tamil Nadu Act 38 of 1972 will also be available to his legal representatives. As earlier pointed out by me, so far as Act 4 of 1938 is concerned the benefit is extended to an 'agriculturist' with no limitation whatever. But Act 38 of 1972 has intended to provide for the relief of certain indebted persons in the State of Tamil Nadu. It is significant to notice that in this case the heirs of the deceased mortgagor are Mohammedans and are governed by the Mohammedan Law; what they inherit is the residue of the estate of the deceased; that is his whole estate less his liability (underlining is by me). The liability is therefore that of the deceased, but not that of his heirs. Hence, it is but reasonable to hold that if the debtor himself could not claim any relief under any of the Debt Relief Acts, his heirs can have no better claim than the deceased himself had. Further, the heirs in the above circumstances can hardly be called debtors for they are bound to discharge the debt of the deceased not personally but out of the respective shares in their respective hands. For instance, if the hypotheca was found to be insufficient even after the scaling down on the assumption that the heirs are entitled to protection, would they be personally liable for such unsatisfied claim? For the said question, the learned Counsel for the appellants unhesitatingly, answered, they are not. Indeed in law also they are not liable. In my opinion, it is but legal and equitable to hold the converse to be true. It is not in dispute that the estate is subject to property tax for m6re than Rs. 1,200/- for the relevant period referred to in Section 2(3)(iii) of Act 38 of 1972. In the circumstances I have to hold that as the appellants are the legal representatives of the deceased debtor, they are not entitled to invoke the protection adumberated in Tamil Nadu Act 38 of 1972.

17. Yet another point to be dealt with is whether the interest claimed in this action is usurious. The rate stipulated in the mortgage deed is 12 per cent per annum and in default thereof 15 per cent per annum. Taking into consideration the present interest-rate adopted by the National Banks and the rupee value, the interest claimed at 12% and in default thereof at 15% cannot be termed to be usurious. Further the suit is instituted in 1975, which came to be disposed of in appeal by me in 1983. During the interegnum the respondent has lost the money value. Taking all into consideration, it is not possible to entertain even the defence that the rate of interest claimed is usurious.

18. The result is the appeal fails and is dismissed, but in the circumstances without costs.


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