PALANI SRI DANDAYUTHAPANI DEVASTHANAM Vs. MOHAMMAD GANI ROWTHER

JUDGEMENT

(1.) This appeal raises an interesting point as to the application of the Madras Agriculturists' Relief Act to debts due & owing to a religious institution like Sri Dandayuthpani Devasthanam, Palani, which is the creditor in this case. Two brothers Sheikh Muhammad Rowther and Kadir Muhammad Rowther who were entitled to half a share each in certain lands mortgaged them to the Devasthanam under two usufructuary mortgages, the mortgage by Sheikh Muhammad Rowther being for Rs. 22,000 on 14-12-1922 and that by the younger brother Kadir Muhammad Rowther being for Rs. 14,000 on 13-8-1923. In execution of a money decree against Sheikh Muhammad Rowther the equity of redemption in half of the mortgaged properties was brought to sate and it was purchased by one Ramaswami Nicker. The purchaser paid on 21-7-1943 the amount due on the earlier of the two mortgages, viz., Rs, 22,000 to the Devastanam and discharged the same. After the sale the Devasthanam instituted a suit in O. S. No. 15 of 1948 in the Subordinate Judge's Court, Dindigul for partition and separate possession of the half share of Kadir Muhammad Rowther the mortgagor under the latter usufructuary mortgage dated 13-8-1923. The Devasthanam secured possession of that half share in pursuance of that decree.

(2.) The petition out of which this appeal arises is one taken under Sections 1-9-A and 9-A, Madras Agriculturists' Relief Act, by the heirs and representatives of Kadir Muhammad Rowther who died prior to the petition, for scaling down of the debt covered by the mortgage dated 13-8-1923. On behalf of the Devasthanam several contentions were raised resisting the application. The first contention was that the petitioners were not agriculturists as they could not be deemed to be persons within the meaning of Section 3 of Act 4 of 1938 as under Mahomedan law, the heirs succeed to only what remains after payment of the debts due by the deceased, that the properties of the deceased should be applied in payment of debts and then alone can the heirs seek any claim for what is left over and that therefore the estate of the deceased is not a person and hence not an "agriculturist" under the Act. The second contention was that the Devastanam being a religious institution monies due to such an institution cannot be scaled down. Both the contentions were repelled by the learned Subordinate Judge of Dindigul.

(3.) In appeal, the learned counsel for the appellant while referring to the first of the contentions has, however, not seriously pressed his objection on that ground, especially in view of the decision of a Bench of this court reported in 'Perianna v. Sellappa', AIR 1939 Mad 186 (A) that the right to claim relief under the Act was not confined to the person who actually contracted the debt, but was available to his heir at law, legal representative or assign.