M THANGAVELU CHETTY Vs. CHINNASAMY

JUDGEMENT

(1.) THE petitioner herein seeks a writ of certiorari from this Court to have the order, dated 2nd March, 1981, of the third respondent affirming the order, dated 20th September, 1980 of the second respondent quashed.

(2.) THE first respondent herein and his younger brother took a loan of Rs. 1,000 from the petitioner on execution of a mortgage of their lands in S. No. 368 and S. No. 36712, in Thimmapuram Village . THE first respondent filed an application under the Tamil Nadu Debt Relief Act, 1976, hereinafter referred to as the 1976 Act, before the second respondent for relief in respect of the mortgage. THE second respondent has, by his order, dated 20th September, 1980, held that the 1st respondent owns only a half share in the lands mortgaged, which consist of 0. 50 cents wet in S. No. 368 and 0. 16 cents dry in S. No. 36712 of Thimmapuram Village, and that therefore he is a small farmer owning lands within the limit prescribed by the 1976 Act. He therefore ordered "that the loan obtained by him is discharged and the mortgaged land is released to him. THE mortgagee-creditor filed an appeal before the appellate authority, the third respondent herein contending that the first respondent is getting an annual income of Rs. 9,000, that he is also a money-lender lending money on promissory notes to various persons in the village and that therefore he is not entitled to the benefits of the 1976 Act. THE third respondent, however, by his order, dated 2nd March, 1981, held that the first respondent was in possession of lands within the limit prescribed by the 1976 Act, that he was entitled to the benefits of the said Act and that therefore there was no reason to interfere with the order of the second respondent.

(3.) THERE appears to be considerable force in the submission made by the learned counsel for the petitioner in this regard. It is well-established that if a mortgage debt has been incurred by two or more persons, the mortgage debt is one and indivisible and the liability of the mortgagors is joint and several. It is not open to the mortgagors-borrowers to split up the mortgage debt and require the mortgagee to proceed against a specified portion of the mortgage security for realising a portion of the mortgage debt. But an exception to the general rule may be provided by the statute, as has been done in section 14 of the Tamil Nadu Agriculturists' relief Act, 1938 (Tamil Nadu Act IV of 1938), hereinafter referred to as the 1938 Act, wherein splitting up a debt as well as splitting up of a mortgage security is contemplated. But there is no similar provision in the 1976 Act. Section 14 of the 1938 Act is as follows: "14. Notwithstanding anything contained in section 3 (ii) and subject to the provisions of sections 5 and 6, where in a Hindu family, whether divided or undivided, some of the members liable in respect of a family debt are not agriculturists while others are agriculturists, the creditor shall, notwithstanding any law to the contrary be entitled to proceed, (a) against the non-agriculturist member or members and his or their share of the family property to the extent only of his or their proportionate share of the debt, and (b) against the agriculturist member or members and his or their share of the family property, to the extent, only of his or their proportionate share of the debt which shall be scaled down in accordance with the provisions of this Act. " The relevant provision in the 1976 Act in section (4) (b), which is as follows: ''4. Notwithstanding anything contained in the Tamil Nadu Agriculturists Relief Act, 1938, the Tamil Nadu Pawnbrokers Act, 1943, the Tamil Nadu Moneylenders Act, 1957, the Tamil Nadu Debt Relief Act, 1972, the Tamil Nadu Indebted Agriculturists' (Temporary Relief) Act, 1976, the Tamil Nadu Indebted Persons (Temporary Relief) Act, 1976, or in any other law for the time being in force or in any contract or instrument having force by virtue of any such law and save as otherwise expressly provided in this Act, with effect on and from the commencement of this Act,- ***** (b) no civil Court shall entertain any suit or other proceeding against the debtor for the recovery of any amount of such debt (including interest, if any): Provided that where any suit or other proceeding is instituted jointly against the debtor and any other person, nothing in this section shall apply to the maintainability of such suit or proceeding in so far as it relates to such other person. Thus it is seen that section 14 of the 1938 Act clearly contemplates separation of the share of an agriculturist both in respect of debt as also the mortgaged land. But there is no such provision in the 1976 act. Section 14 of the 1938 Act, specifically provided that notwithstanding any law to the contrary the creditor shall be entitled to proceed against non-agriculturists and their share of the property to the extent of their share of the debt.