AMARNATHA MENON Vs. MALATHI AMMA

JUDGEMENT

(1.) The only point for decision is whether the debt covered by the decree is one to which the Kerala Agriculturists Debt Relief Act (31 of 1958) applies. The court below held against the debtor on this point and dismissed his application to pay the debt according to the Act; hence this appeal.

(2.) The amount in respect of which the decree was passed was balance of consideration under a sale deed executed by the decree holder in favour of the judgment - debtor. S.2 [c] of the Act defines debt for the purpose of the Act. Eight categories of debts are excluded from the operation of the Act and clause vii of S.2 [c] provides that any liability for which a charge is provided under sub clause [b] of Clause.4 of S.55 of the Transfer of Property Act will not Come within the definition of the word debt. The question is whether the debt covered by the decree comes within this clause. Learned counsel for the appellant contends that the provision in the sale deed enabling the vendor to sue for interest on the balance of consideration is a contract to the contrary as contemplated in S.55 of the T. P. Act. We are unable to uphold this contention. The sale deed expressly provides for a charge on the property sold in respect of the unpaid consideration. This is a contract in consonance with and not contrary to S.55. It is argued that S.55 contemplates a consolidated charge for the principal and interest and that the provision in the deed for suing for interest alone would amount to a contract to the contrary. The clause in the sale deed is one intended to get over the bar of R.2 of O.2 of the Civil Procedure Code and this cannot affect the existence of the charge. Provisions for the enforcement of a charge created by the sale cannot in our opinion amount to a contract to the contrary.

(3.) Another argument advanced by the appellants counsel is that after the first suit for recovery of interest, the charge could not subsist on the property and that there was no charge on the date the Act came into force. Even assuming that this argument is correct, we do not see how it can help the appellant in view of the provisions in S.2 [c] vii which only requires that a charge should be created as provided by S.55 [4] of the T. P. Act. That such a charge was created by the sale is not disputed. In construing an analogous provision in the Madras Agriculturists Debt Belief Act the Madras High Court held in Varadaraja Perumal v. Palanimuthu Goundan ( AIR 1841 Mad. 118 ) that the intention of the legislature was only to specify the category of cases to which the Act was not to apply and that the exclusion of such categories of debt was not to depend on the subsistence of the charge but on the question whether in the beginning the liability was one falling within the category. We are in complete agreement with this view. It follows that even if the charge was not subsisting on the relevant date the debt would stand excluded from the operation of the Act.