RABUMAN BIBI Vs. THEERTHAKARAYAN AND OTHERS

JUDGEMENT

(1.) The above Second Appeal has been filed by the defendant in O.S.No. 52 of 1981, on the file of the District Munsif, Melur, who has failed throughout, against the Judgment and decree of the learned Subordinate Judge, Madurai, dated 15-12-1982, in A.S.No. 123 of 1982, confirming the Judgment and decree of the learned District Munsif at Melur, dated 24-4-1982 in O.S.No. 52 of 1991. The 1st plaintiff usufructuarily mortgaged the properties in question to the defendant on receipt of a loan of Rs. 12,000.00 on 7-1-1994, executing the mortgage deed for himself and as guardian of his then minor sons, who are plaintiffs 2 and 3 and also on behalf of his minor sons, who are plaintiffs 5 to 7 and as guardian of the 4th plaintiff. The possession of the mortgaged property was handed over to the defendant and the period of redemption fixed in the mortgage deed was 7 years. Claiming benefits under the Tamil Nadu Debt Relief Act, 1979 (Act 40 of 1979), particularly, under Sec. 9 of the said Act, the plaintiffs filed the suit for redemption and recovery of the property after paying the balance of Rs. 3,600.00, which has been worked out in terms of the above debt relief legislation. The defendant contested the claim on the ground that the plaintiffs are not entitled to the benefits under the Tamil Nadu Act 40 of 1979 and, therefore, there was no justification to scale down the debt as claimed by them; that they own movable and immovable properties worth Rs. 60,000.00 and their income being more than Rs. 15,000.00 per annum from their agricultural lands and mango grove, they are paying agricultural income-tax and that, therefore, the suit is liable to be dismissed.

(2.) On the above claims and counter-claims the suit was tried and both sides adduced oral and documentary evidence. The learned trial Judge held finally that the plaintiffs are entitled to the benefits of the Tamil Nadu Act 40 of 1979. The learned trial Judge also held that the mere fact that the plaintiffs filed a claim for relief under Tamil Nadu Act 13 of 1980, but the same was rejected according any relief under the said Act, does not by itself disentitle the plaintiffs from claiming relief under the Tamil Nadu Act 40 of 1979. Aggrieved, the defendant pursued the matter on appeal before the first appellate court, and the learned first appellate Judge also concurred with the findings of the learned trial Judge. Hence, the above second appeal.

(3.) Mr. P. Venkataraman, learned counsel appearing for the appellant vehemently contended that the Court below ought to have held that the plaintiffs having claimed relief under the provisions of Tamil Nadu Act 13 of 1980 are dis entitled for claiming again reliefs under the Tamil Nadu Act 40 of 1979. Argued the learned counsel further that the courts below have thrown the burden of proof on the claim that the plaintiffs were not dis entitled for the benefits erroneously on the defendant and that the Courts below failed to see that the plaintiffs have not substantiated their entitlement by proving that they are not assesses to income-tax under the Agricultural Income-tax Act or under the T.N.G.S.T. Act, and that being the position the plaintiffs ought not to have been allowed the reliefs of scaling down the debt in question. Learned Counsel for the respondents adopted the reasons assigned by the Courts below and contended that having regard to the concurrent findings of facts by both courts below regarding entitlement of the plaintiffs to claim the debt relief legislation in question, this Court may not be pleased to interfere with those findings in the second appeal.