VENKATARAMANA BHATTA Vs. MADHAVA BHATTA & OTHERS

JUDGEMENT

(1.) S .A. 413 of 1961 is by the first defendant and S.A. 630 of 1961 is by the 4th defendant and they arise from O. S. 124 of 1956. That suit was to realise, charged on the suit property, the value of 3/4 candy of areca deliverable to the plaintiffs for each of the years 1955 and 1956, under the terms of a deed of exchange Ext. A1 dated the 23rd July, 1954. Plaintiffs 1 and 3 and the first defendant are brothers and they owned the suit property jointly. By Ext. A1, plaintiffs 1 and 3 exchanged their 2/3 share of the suit property described in schedule A of the document and a simple mortgage right together valued at Rs.5000/ -, for the property described in B schedule therein, which belonged to the first defendant valued at Rs.1250/ -. To equalise the exchange, a sum of Rs.3750/ - was agreed to be paid by the first defendant at the end of three years. It was further provided, that till the expiry of the said three years, the first defendant to deliver to the plaintiffs 3/4 candy of white dried areca by the 13th April of each year, being, as stated, "interest alias income fixed for the 2/3 right in the Schedule properties". In clause 7 of Ext. A1, it was provided, that if the amount of Rs.3750/ - is not paid by the due date, the first defendant shall continue to deliver areca "at the same rate of income" till payment of the amount and interest at 5 1/2% per annum was payable on the defaulted amount. Clause 9 provided, that the principal amount, income and interest shall be a first charge on A Schedule property and its income. The first defendant contested the suit on many fronts. Though the suit came to be dismissed by the Munsiff, it was decreed in appeal by the Subordinate Judge. In second appeal 413 of 1961, the only question which was pressed before us by learned counsel was, that areca income stipulated as payable under Ext. A1, was really interest payable in respect of the sum of Rs.3750/ -, or in any event was an amount payable in relation to it within the meaning of Section 3 (iii -a) of the Madras Agriculturists Relief Act (IV of 1938) as amended and so was amenable to Section 13 thereof. This contention was repelled by the two courts below on the ground that such areca income was a part of the income of a schedule property and in no sense, interest on the sum of Rs.3750/ -. The point to decide is, whether areca income is payable qua income or as interest on the sum of Rs.3750/ -. It is useful to remember, that there is no provision in the Madras Act as in the Kerala Act 31 of 1958, enabling parties to adduce evidence as to their real intention dehors the terms of the document. In fact no evidence was led in the case as to the real nature of the payment provided for, and Ext. A1 and its terms afford the only basis on which the decision has to be taken. On the terms of Ext. A1, we find great difficulty in accepting the view that what was stipulated was interest on the sum of Rs.3750/ - and not income as such. Apart from the payment of Rs.3750/ - to be made three years later, there was a patent inequality in the exchange of property, the 2/3 share of a schedule property and the simple mortgage right valued at Rs. 5000/ - being exchanged for B schedule property valued at Rs.1250/ -. This inequality had to be remedied, and two courses were open to the parties. One was to provide for interest on Rs.3750/ - at an agreed rate and the other to provide for the payment of excess income which the first defendant would be receiving by accepting 2/3 share of A schedule property in lieu of B schedule property. The parties appear from the terms of Ext. A1 to have adopted the latter course, and this they did expressly, for in clause 6, it was stated to be "income fixed for the 2/3 right in the A schedule" property and not, be it noted, interest on Rs.3750/ -. Nothing precluded the parties from saying so, if that was the real intention. Even when they used the word interest in clause 6, though by way of a later interpolation, and therefore designedly, they took care to use the words "alias income". In the succeeding clauses, as stated, the word "income" was repeated and the word "interest" occurs only in clause 8 in relation to the defaulted part of the income in any particular year. In clause 9, the parties referred to principal amount, income and interest, the word "interest" having reference to "interest" stipulated as payable in the preceding clause on the defaulted income. The only feature which supports the first defendant is the use of the word "principal" with reference to the sum of Rs.3750/ -, and of the word "interest" in conjunction with the words "alias income". The former without more, must yield to the other clauses and the latter was explained to be for securing a reduction in the stamp duty which is very probable.

(2.) WHEN the parties have agreed to this course, we find no justification for accepting the contention of learned counsel, that areca deliverable every year represented interest on Rs.3750/ - and not what it purports to be excess income as it were for the 2/3 right in the A schedule property. Learned counsel then contended, that under Section 120 of the Transfer of Property Act governing a transaction of exchange, the rights of the parties are analogous to those of buyer and seller, and that under Section 55, sub -section (4) and (6) on the passing of ownership, the right to the rents and profits also passes. But this is subject to a contract to the contrary. Under Ext. A1, the contract providing that the 2/3 share of A schedule property shall pass to the first defendant, also provided that till a certain event happens, he shall be accountable for a part of the income; this is nothing but a contract to the contrary. This was the bargain between the parties. The two courts below have construed and understood Ext. A1 on these lines. Learned counsel relied on the definition in Section 3 (iii -a) of the Madras Act which runs as follows: