MUHAMMADKUTTY HAJI Vs. VASUDEVAN NAMBOODIRI

JUDGEMENT

(1.) An application under the Madras Agriculturists Relief Act for scaling down a debt has given rise to this second appeal. The substantial question in controversy is whether the transaction is liable to be scaled down under the Act and on this point the courts below have concurrently held that the debt is liable to be scaled down. The creditor has therefore preferred this second appeal.

(2.) The facts necessary for the decision of the second appeal may be briefly stated. The appellants Illom granted a kanom demise to the predecessor of Respondents on 18-6-1917. On the same day a puramkadam deed Ext. Al for Rs. 800 was executed in favour of the kanomdar. The kanom deed provided for an annual payment of 85 paras and 1 1/2 Edangalies of paddy and 4 annas as purappad to the Illom, Interest on the sum of Rs. 800 advanced under Ext. Al was fixed at 80 paras of paddy and it was also provided that this was to be appropriated from the purappad payable under the kanom deed. A member of the illom applied for scaling down the debt covered by Ext. Al. The main contention of the appellant was that the Act was not applicable to this debt and that it was not liable to be scaled down. This contention was overruled as stated above.

(3.) The main point urg ed on behalf of the appellant is that the appropriation of 80 paras towards interest on the puramkadam amount cannot be treated as payment of interest under S.8 of the Act. It is contended that the view taken by the lower appellate court on the question of accountability is not correct. The learned District Judge came to the conclusion that the direction in the kanom deed to pay 85 paras and odd of paddy involved a liability to account for the profits. Though this view is not correct, the appellant is not entitled to succeed as the conclusion reached by the courts below is correct. Ext. A1 cannot be treated as the transaction under which the mortgagee came into possession. It is a simple mortgage of the jenmom right of the Illom for a consideration of Rs. 800. The interest payable on the said sum is stipulated in the deed and it is provided that the same is to be taken by the mortgagee from out of the sum payable as purappad under the common transaction. The mere fact that instead of paying the interest to the mortgagee the Illom allowed him to appropriate the same, from the sum payable by him to the Illom cannot convert the transaction into a usufructuary mortgage under which the mortgagee is not liable to account for the profits. The decision of Wadsworth, J. in Chulliyat Govindan Nair v. Imbichi Mammad ( AIR 1943 Mad. 31 ) is exactly in point. Ext Al cannot therefore be treated as a transaction exempted from the operation of the Act.