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N. Jeeyappa Iyengar Vs. T.N. Srinivasan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1957)2MLJ262
AppellantN. Jeeyappa Iyengar
RespondentT.N. Srinivasan and anr.
Cases ReferredVinkatapathraju v. Venkataratnam
Excerpt:
- .....debt and no amount was due to the respondent thereunder, as it had been wiped out by virtue of a sale agreement, dated 9th may, 1942. his contention, therefore, was that, by reason of that sale agreement, the mortgage got completely discharged and was not therefore subsisting as a debt on the date of the application, and that, when once there was no debt subsisting for scaling down, the petition was to be dismissed as unsustainable.2. on the question whether the petitioner was an agriculturist, the learned district munsif held that, under proviso (d) to section 3 of the act, the petitioner cannot claim to be an agriculturist. the learned district munsif further held that, in the face of the creditor's admission that there was no subsisting debt, the application was not maintainable. he.....
Judgment:

Ramaswami Gounder, J.

1. This appeal arises out of a petition, O.P. No. 38 of 1954, filed by the present first respondent as the petitioner under Sections 9-A and 19-A of the Madras Act IV of 1938 for scaling down the amount due on a mortgage and for ascertainment of the amount due thereunder. The mortgage was one executed by respondent 5 in favour of respondent 1 in 1928 for a sum of Rs. 3,000. It was a possessory mortgage, and, having regard to the fact that the mortgagee was in possession of the hypotheca for over 25 years, on the date of the petition the mortgage would stand substantially discharged. The petitioner is the adopted son of the mortgagor, respondent 5, and he claimed to be an agriculturist. The first respondent who is the present appellant contested the petition on the ground that the petitioner was not an agriculturist, and, therefore, not entitled to the benefits of Act IV of 1938 as the petitioner and his father, respondent 5 ,were paying quitrent and jodi, over Rs. 100, for their shrotriem village and so excluded under Section 3 Proviso (D) of the Act. The first respondent also pleaded that the mortgage in question was not subsisting as a mortgage debt and no amount was due to the respondent thereunder, as it had been wiped out by virtue of a sale agreement, dated 9th May, 1942. His contention, therefore, was that, by reason of that sale agreement, the mortgage got completely discharged and was not therefore subsisting as a debt on the date of the application, and that, when once there was no debt subsisting for scaling down, the petition was to be dismissed as unsustainable.

2. On the question whether the petitioner was an agriculturist, the learned District Munsif held that, under Proviso (D) to Section 3 of the Act, the petitioner cannot claim to be an agriculturist. The learned District Munsif further held that, in the face of the creditor's admission that there was no subsisting debt, the application was not maintainable. He accordingly dismissed the petition. On appeal by the petitioner, the learned District Judge held that he was an agriculturist entitled to the benefit of the Act on the ground that the shrotriem was a personal grant in favour of respondent 5 and that the petitioner had no claim to it by right of birth or at any time till after his father's death. Even so the learned District Judge did not investigate whether the petitioner was a person owning a saleable interest in any agricultural or horicultural land. On the other question namely, the agreement of sale pleaded by respondent 1, the learned Judge was of the view that the enquiry under Section 19-A does not contemplate an enquiry whether the amount due under the mortgage had been settled by sale or agreement of sale and that it was a matter which would have to be tried in separate proceedings. He therefore remanded the case to the District Munsif with the direction that he should give a finding as to what would be the amount due when the mortgage debt was scaled down under the Act. As against that order, the present appeal has been filed by the first respondent to the main petition.

3. On the question as to whether the petitioner is an agriculturist I have not thought it necessary to express any opinion, though I should remark that the learned District Judge's view in favour of the petitioner cannot be supported in the absence of a finding that, apart from the shrotriem village, which, according to the learned Judge, was a personal grant in favour of respondent 5, the petitioner was possessed of any other agricultural land, in respect of which he can call himself an agriculturist. Before that question can be satisfactorily decided, further evidence may be necessary. But, in the view I am taking on the other question, I do not think it necessary to investigate into this matter further. In paragraph 7 of the counter filed by the mortgagee-respondent 1, he has definitely stated that the usufructuary mortgage is not subsisting as a mortgage debt and that no amount is due thereunder. He maintains that the mortgage has been completely wiped out by virtue of a sale agreement dated 9th May, 1942, by which the mortgage got completely discharged and is not therefore subsisting as a debt. In view of that unambiguous statement the question of scaling down cannot arise at all. Section 19-A of the Act would apply, as the opening words of that section show, only if there is any debt due by any person who claims to be an agriculturist. This is a case where the creditor himself declares that the mortgage has been completely wiped out by the agreement and there is no debt subsisting. In the face of that declaration by the creditor himself, it would be a paradox to say that there is an outstanding debt due to that very person and liable to be scaled down under the Act. It would make no difference whether the discharge alleged by the creditor was brought about by payment of cash or by sale of the hypotheca or some other property. The learned Counsel for the petitioner however, pointed out that in case the sale agreement is found to be false, then, there was the possibility of the mortgagee seeking to fall back on his mortgage debt. No doubt, there is that possibility. But his going back to his mortgage would mean practically nothing for him, because, by that time, the period of 30 years would have elapsed and there would be nothing left under the mortgage to fall back on. In a Bench decision of the Court reported in Vinkatapathraju v. Venkataratnam (1951) 2 M.L.J. 629 it was observed:

Where, as in the present case, the creditor admits that no sum of money is due, there is no scope for the applicability of Section 19-A. The petition ought to have been dismissed on the plea of the respondents that no money was due to them from the appellant.

4. In ray opinion, therefore, the order of the learned District Munsif was right. The possibility of the mortgage debt reviving on a finding against the alleged agreement of sale cannot make any difference to the rule enunciated above, so long as, according to the creditor's own declaration, the debt has been completely wiped out and there is no subsisting liability on the mortgage. As I stated, in the contingency of the debt getting revived, there will be practically nothing left under the mortgage, and, even otherwise, when a finding is given against the alleged agreement of sale and the debt gets revived, it will be open to the petitioner to then ask for the scaling down of the debt under the provisions of the Act. For the present, it must be held that his petition is not maintainable.

5. The appeal is therefore allowed and the petition, O.P. No. 38 of 1954, on the file of the District Munsif, Kancheepuram, will stand dismissed. The question whether the petitioner is an agriculturist or not as well as the question of the alleged agreement of sale are not gone into and are reserved to be determined in separate proceedings. The petition is dismissed only on the ground that the creditor declares that the debt has been completely discharged by the alleged agreement. There may be the possibility of the debt reviving in the event of the alleged agreement being found against, in which case the petitioner will have to apply then for the scaling down of the debt. In these circumstances, I direct that there be no order as to costs in all the Courts.


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