MARUDHAVANA DESIGAR Vs. THANGAMANI AMMAL

JUDGEMENT

(1.) THIS appeal is directed against a laconic and non-speaking order passed by the lower Court directing the scaling down of a mortgage debt.

(2.) THE appellant herein obtained a mortgage decree for a sum of Rs. 40,416.66 in O. S. No. 34 of 1971 on the file of the Sub-Court Thanjavur on the basis of a mortgage bond, dated 12th February, 1961 against defendants 1 to 5, the legal representatives of the original mortgagor, the 6th defendant, who claims to have purchased the equity of redemption in respect of item 1 and a shop in item 2 of the suit properties. After the passing of the decree, the 6th defendant alone filed an application on 12th September 1974, under section 19 of Act VI of 1938 as amended by Act VII of 1973, for scaling down the decree debt on the ground that she is an agriculturist. Her claim that she is agriculturist was disputed by the decree-holder, the appellant herein. According to the appellant, the 6th defendant was not an agriculturist at any time, much less on the date of the original mortgage debt.

(3.) ACCORDING to the learned counsel for the appellant, before a debtor could claim the benefits of Act IV of 1938 as amended by Act VIII of 1973, he should establish that he was an agriculturist on three relevant dates namely (1) on the date of the debt (2) on the date of the suit for recovery of the debt and (3) on the date of the application for scaling down that debt under section 19 and the decision in Govindammal and another v Saradambal and others1 does not in fact support the view taken by the Court below and it is in error in holding that the 6th defendant is entitled to the benefits of the said Act on the basis of the said decision. The learned counsel for the appellant submits that the said decision of N. S Ramaswami, J. in Govindammal v. Saradambal1 which has been followed by the Court below cannot be understood as laying down that it is sufficient for a debtor to be an agriculturist on the date of the application to claim the benefits of the Act and that in that case the learned Judge held that as the applicant for scaling down had not been shown to be an agriculturist on the date of the application, she cannot maintain that application, On a perusal of the said judgment, it is seen that the learned Judge after referring to the decision of the Full Bench reported in Papathi Ammal (alias) Nallamal v. Nallu Pillai2 held that an applicant for scaling down under section 19 seeking the benefit of the amending Act VIII of 1973 has to prove that he was an agriculturist on the date of the application "as well". The significance of the words "as well" used by N. S. Ramaswami, J in his judgment has been overlooked by the Court below. The Court below has proceeded that if the applicant for scaling down shows that he or she was an agriculturist on the date of the application, that is sufficient to entitle him or her to claim the benefits of the Act This view of the Court-below cannot at all be sustained in the face of the decision of the Full Bench referred to above. It has been laid down by the Full Bench that in order to entitle a debtor to claim relief under section 13 of the Madras Agriculturists Relief Act IV of 1938, he must be an agriculturist as defined in the Act on two crucial dates (1) on the date of the loan as otherwise it would not be a debt incurred by an agriculturist, and (ii) on the date of recovery thereof through the process of Court, as otherwise there would be no proceeding for recovery of debt as defined by the Act. N. S. Ramaswami, J has held that in addition to showing that the debtor was an agriculturist on the crucial dates referred to above as held by the Full Bench, he must also be an agriculturist on the date of the application as well. Thus the decision of N S. Ramaswami, J. clearly proceeds on the basis that a debtor before be claims the benefits of Act IV of 1938 as amended by Act VIII of 1973, must show that he is an agriculturist on three dates, the date of the debt, the date when the debt is sought to be recovered and the date when the application is made by the debtor for scaling down. The view taken by the Full Bench has been followed and applied by Natarajan, J, in Tulasi Ammal others v. Thasu R. Sami Iyer3, and by Padmanabhan, J. in RM. AR. AR. RM. AR. Ramanathan Chettiar v. VC. RM. K. Ramaswami Chettiar4 In this context, it is prudent to note the following observations of Ramachandra Iyer, C J. speaking for the majority, in the Full Bench decision referred to above: