SIVASWAMI CHETTIAR Vs. MUTHUSWAMI CHETTIAR AND OTHERS

JUDGEMENT

(1.) The plaintiff who lost in both the Courts below is the appellant. His suit was to enforce a mortgage dated 30th June, 1928, which was executed by Subbiah and two of his sons in favour of three minors, who were the sons of another son of Subbiah. There was a family -partition in February 1928, which the minors represented by their mother attacked as unequal in a plaint sought to be filed in forma pauperis. Sometime later there was a compromise at which it would appear Subbiah and his two sons were asked to pay the minors a sum of Rs. 2,000. The mortgage was accordingly executed to secure payment to the minors of the sum of Rs. 2,000. There was a stipulation in the mortgage for payment of Rs. 220 annually until discharge of the debt to the minors. There is no dispute that this sum of Rs. 220 was paid every year until 1933, but there was default thereafter. One of the respondents purchased the equity of redemption subject to the charge on the plaint scheduled properties. The suit was resisted on the ground that more than double the amount secured under the mortgage had been paid and the principle of damdupat would apply under S. 8 of Madras Act IV of 1938. Alternatively, the contesting defendants relied on S. 4(f) and (g) of the Act. The Courts below concurred in rejecting the defence based on S. 4(f) and (g) but accepted the contention that under S. 8 the plaintiff was not entitled to recover anything. The Suit was, therefore, dismissed and the appeal arising there out also failed. Before me the contention for the appellant is that the Courts below were wrong in applying S. 8 to the facts of the case. It is said that the sum of Rs. 2,000 the payment of which was secured by the mortgage was in fact an owelty to equalise the partition. In the suit that was sought to be filed by the minors, the partition was challenged as being Unequal and unfair to them. In the context of this litigation compromise was entered into at the direction of a panchayat that a sum of Rs. 2,000 should be paid to the minors by the other sharers who were their paternal uncles and grandfather. In the circumstances, it is said that this amount should be taken as an owelty. In fact the lower appellate Court has made an observation to that effect and so, according to the appellant, what is an owelty cannot be regarded as a debt for the purpose of Act IV of 1938.

(2.) Owelty of course represents the difference arising out of unequal partition and is in the nature of property and not a debt. When equal partition for some reason or other is not possible, in order to adjust rights and equities, the sharer who has been allotted property in excess of his due is directed to make good to the other sharer who has been allotted less, to the extent of such excess. In my view, such owelty is clearly not a liability in the nature of a debt, but is property. I find Ramaswami, J., took a similar view in In re Mohamed Allar Sahib, A.I.R. 1958 Mad. 217, whether a liability in respect of payment of owelty may in certain circumstances become a debt will have to be decided in the light of particular facts. It is possible that what originally was an owelty may, in the light of particular facts, take the shape of a debt. It is contended that the provision for payment of interest in the mortgage deed indicated that what the mortgage deed secured was essentially a debt, though it had its origin to owelty. There is perhaps force in the contention. But on the view I take on the facts, it seems unnecessary to pursue the question.

(3.) Neither in the plaint nor in the mortgage deed was it ever mentioned that the liability under the mortgage had its origin to owelty. Whether the liability was due to owelty is a question of fact and there must be a clear allegation to the effect and will have to be proved like any other fact. But there is neither pleading nor evidence in this case to justify the conclusion that what was secured by the mortgage deed was an owelty. The recitals in the mortgage though refer to a panchayat did not mention that there was any unequal partition and that therefore the decision of the panchayat was to award owelty in order to equalise the shares. The plaint that was filed on behalf of the minors represented by the mother would appear to have not been pursued and there was no finding at any time even apart from the panchayat that there was any unequal partition. It follows that the very premises on which the point of law relating to owelty, is argued are not established. It is true that both the Courts below in the course of their judgments made casual observations that the sum secured by the mortgage was in lieu of a share of the mortgagee. But there is literally no evidence in support of these observations. What is more, the plaint itself proceeded on the basis that what was secured by the mortgage was a debt like any other without any suggestion as to its possible origin from owelty.