RAJA SURANENI SURYAPRAKASA RAYANIMGAR Vs. DODLA BALARAMIREDDI

JUDGEMENT

(1.) Defendants 1 and 5 in O. S. No. 62 of 1943 on the file of the Court of the Subordinate Judge, Nellore, appeal against that portion of the learned Judge's decree by which relief under the Madras Agriculturists, Relief Act (IV [4] of 1938) had not been given in favour of defendant 5; and the question that arises for decision is whether defendant 5, admittedly a non-agriculturist is entitled to claim the benefits of Act IV [4] of 1938, in view of the circumstances of the present case. Defendant 1, the father and his three sons, defendants 2 to 4 are mortgagors of certain properties mortgaged in favour of the plaintiff. Defendant 4 was not actually an executant of the document. The mortgage was dated 30th October 1929. Subsequently on 4th October 1935, defendant 1 paid Rs. 5 towards the mortgage and acknowledged the existence of the debt by EX. P-1 (a). In the meanwhile, on 12th June 1933, by EX. P-4, defendant 1 made a gift of this property in favour of his son-in-law, defendant 5, There is no doubt a clause in EX. P-4 whereby defendant 1 had agreed to discharge the encumbrance existing on the property. But he did not do so on the other hand, he acknowledged the mortgage debt without paying the same. The suit filed on 17th August 1943 was opposed by defendant 5 and the principal contest in the appeal is by defendant 5 though defendant 1 is also an appellant. The question is whether defendant 5 is entitled to the benefits of the Act. The lower Court has found that defendant 1 was an agriculturist and defendant 5, not. On account of that a decree by sale of the hypotheca was passed in favour of the plaintiff for the amount claimed without giving any deduction under Madras Act IV [4] of 1938.

(2.) The question that arises for consideration is really covered by the decision of Wadsworth J., in Suganantha Mudaliar v. Kuppusami Chetti, 1947-2 M. L. J. 273; (A. I. R. (35) 1948 Mad. 205), where the learned Judge held that a nonagriculturist purchaser of a hypotheca is not entitled to relief in respect of a mortgage debt under Act IV [4] of 1938 when the agriculturist mortgagor was not at the time when the matter came before the Court, a person liable to discharge the debt. Therefore it was held that such a purchaser was not entitled to have the debt scaled down merely because the mortgagor was at the commencement of the Act an agriculturist entitled to the benefits of the Act which benefit he has not claimed. In this connection the learned Judge referred to an earlier decision of himself and Patanjali Sastri J., reported in Viswasundara Rao v. Kusalaramayya, 1946-2 M. L. J. 72 : (A. I. R. (33) 1946 Mad 434), where similar observations were made. Extracting a passage from the decision in Viswasundara Rao v. Kusalaramayya, 1946-2 M. L. J. 72 : (A. I. R. (33) 1946 Mad. 434), the learned Judge held that the fortuitous benefit cannot be claimed as of right by the purchaser who is not an agriculturist. It is the incidental result of a claim successfully advanced by the mortgagors. In both those cases at the time the Act came into force the mortgagor was entitled to the benefits of the Act ; but on the date when the suit was filed the mortgagor was not so entitled. That is clear from Viswasundara Rao v. Kusalaramayya, 1946-2 M. L. J. 72: (A.I.R. (33) 1946 Mad. 434). Mr. Vedantachariar for the appellant tries to distinguish these oases on the ground that in both the cases, Suganantha Mudaliar v. Kuppusami Chetti, 1947-2 M. L. J. 273 : (A I.R. (35) 1948 Mad. 205) and Viswasundara Rao v. Kusalaramayya, 1946-2 M. L. J. 72: (A.I.R. (33) 1946 Mad. 434), the mortgagor did not claim any benefit under the Act ; whereas in the present case he has claimed the benefit and that would make all the difference between those decisions and the present appeal. But in the discussion in Suganantha Mudaliar v. Kuppusami Chetti, 1947-2 M. L. J. 273 (A.I.R. (35) 1948 Mad. 205), the learned Judge has stated that the mortgagors had not claimed any relief and while explaining the earlier case and stating its facts, Wadsworth J., impliedly stated that the question of the mortgagor claiming the benefit would arise only if he is legally entitled to claim it and not as in the present case where all the remedies which he had, were barred at the time of the suit.

(3.) Mr. Vedantachariar invited our attention to a few earlier cases, the earliest of them being Arunachalam Pillai v. Seetharam Naidu, 1941-1 M. L. J. 561 : (A.I.R. (28) 1941 Mad. 584). That laid down the general proposition that where in a suit to enforce a mortgage against an agriculturist mortgagor there is a purchaser of the whole or a portion of the equity of redemption who is not himself an agriculturist the benefits of scaling down granted by Act IV [4] of 1938 which a mortgagor agriculturist could have claimed would enure to the benefit of the non-agriculturist purchaser ; and in coming to that conclusion the learned Judges held that