Ramaswami Gounder, J.
1. This is an appeal preferred by the assignee-mortgagees against the order of the learned Subordinate Judge in appeal against an order made by the learned District Munsif on an application filed for scaling down under sections g-A and 19-A of Madras Act IV of 1938.
2. The debt in respect of which the application was made was a usufructuary mortgage of the year 1920, executed by the grandmother of the petitioners as their guardian for a sum of Rs. 2,043 in favour of one Seethai Ammal. In August, 1937, the mortgagee, Seethai Ammal, assigned the mortgage to the respondents, Thangarasu Pillai and Jagadambal. As there was no personal liability under the mortgage and as the mortgagee could not obtain a decree for sale of the property the learned District Munsif thought that this would not be a debt for the purpose of Section 19-A of the Act, and on that ground dismissed the application. Though, he further held that Jagadambal was a woman falling within the exemption of Section 4(h) of the Act, he was of the view that the present debt was due both to a man and a woman while Section 4(h) of the Act contemplated only a debt due to a woman. He ultimately dismissed the application.
3. On appeal the learned Subordinate Judge allowed the appeal and held that the debt had been completely discharged as Sections 9-A and 19-A were applicable in this case. He held that it was not established that Jagadambal was possessed of property of the value not exceeding Rs. 6,000.
4. In this appeal, the learned Counsel for the appellants contended that the learned District Munsif was right in his view that Section 19-A will not apply to-this case, because this is a debt for the realisation of which the creditor had no right against the debtor, either personally or in regard to the property. It is true that there is no personal liability under this usufructuary mortgage.
5. The contention was that the only right of the usufructuary mortgagee was to retain possession till it was redeemed. He could not even file a suit for sale of the property. He relied on two decisions of this Court in support of his contention, namely, Subbaraya Goundan v. Nachimuthu Mudaliar : AIR1944Mad82 , and Sundararaja v. Ramachandra (1945) 1 M.L.J. 384 : A.I.R. 1945 Mad. 385. In the earlier case there is an observation of the Bench to this effect:
It is no doubt that even after the mortgagor has ceased to be liable to pay the debt personally by reason of the law of limitation and has ceased to be liable to pay the debt out of his property by reason of the sale of the hypotheca, he still has a right to redeem the debt and must for that reason be impleaded in the suit on the mortgage. We are, however, not prepared to hold that in such circumstances the mere existence of a right on his part to pay the debt involves a consequence of deeming him to be under a liability to pay that debt.
6. That observation may hold good in a case, where there was neither personal liability nor a liability attached to property. But that cannot be said of a usufructuary mortgage, for, though there may be no right to bring the property to sale, still the usufructuary mortgagee has got, with reference to the property, the right to retain possession till the mortgage is redeemed. It cannot, therefore, possibly be contended that that mortgagee had no right in regard to the property.
7. In the other case, it was stated that a debt the enforcement of which cannot be secured by a legal process is not a debt which is payable for the purpose of the Act and that the debt must be one which the agriculturist could be complelled to pay by legal process. Here again it must be observed that the mortgagor agriculturist, could be compelled to pay the debt by the mortgagee retaining possession of the property. Even in the case of a simple mortgage debt without a personal liability, there is no obligation on the part of the debtor to pay the money. He can allow the property to be sold for the realisation of the debt.
8. In my view, these decisions are not enough to show that a usufructuary mortgage, in which there is no personal liability or a right to bring the property to sale, will not be a debt within the meaning of Section 19-A of the Act. On the other hand, the word 'debt' is defined in the Act itself as 'meaning any liability in cash, or kind whether secured or unsecured due from an agriculturist. That being the definition, I see no reason whatever why the liability due under a usufructuary mortgage should be excluded from the definition. I must, therefore, hold that this usufructuary mortgage is a debt within the meaning of Section 19-A of the-Act and as such a liability to be scaled down under Section 9-A of the Act. If so, the order of the learned Judge in appeal would be right, namely, that the entire debt would stand wiped off. But then he committed the error of holding that the debt would be wiped off even with reference to the moiety of Jagadambal. Even assuming that Jagadambal was not able to prove her case that she found the whole of the consideration for the assignment, still there would be no doubt that she would be entitled to a moiety of the mortgage which was assigned to her and the other person. It is clear on the evidence that she is not possessed of properties, exceeding Rs. 6,000. The evidence on her side was that she owned only one item of land, 180 kulis in extent, worth Rs. 5 a kuli. On the other hand, the evidence on the side of the petitioners was that in addition to that property she also owned a house which according to her belonged to her husband. However, she owned only two-items one a land and the other a house, which according to the evidence adduced by the petitioners themselves were worth only Rs. 2,000 each so that the total value of her property including her half share in the mortgage would be worth-about Rs. 5,000 and nothing more. There is, therefore, no reason why her moiety of the mortgage debt should not be exempted from the provisions of the Act under Section 4(h).
9. In the result, it will be declared that the mortgage in question will stand wiped off in regard to the half share of the first respondent Thangarasu Pillai and not in regard to the moiety belonging to the second respondent, Jagadambal. In the circumstances there will be no order as to costs in all the Courts.
10. No leave.