LAWS(MAD)-1959-10-39

AMMALU AMMAL Vs. N SAMALAM IYER AND ORS

Decided On October 24, 1959
Ammalu Ammal Appellant
V/S
N Samalam Iyer And Ors Respondents

JUDGEMENT

(1.) The appellant is the petitioner in the lower Court in an application under Section 19-A of the Madras Agriculturists' Relief Act for the scaling down of a mortgage debt. The main point involved in this appeal is whether the decision of the Supreme Court in Ramaswami Ayangar V. Kailasa Thevar,1951 2 SCR 292, enunciated a general principle which is applicable to facts like those of the instant case, or whether that decision is distinguishable both with reference to its facts, and upon the ground that it related to a mortgage decree, and not to a mortgage debt.

(2.) The facts necessary for an appreciation of the argument now presented are as follows : A certain Nataraja Iyer and Venkatarama Ayyar were brothers, of whom Venkatarama Ayyar had four sons and a daughter, Ammalu Ammal, the petitioner in the lower Court and the present appellant. Of these four sons of Venkatarama Ayyar, three are now alive, and one of them Samalam Ayyar was given away in adoption to Nataraja Iyer. These persons were living as members of an undivided Hindu family. They owned properties in three villages, and it is to be noted that in one of those villages (Sorianendal) the present appellant possessed an interest in certain specific properties through her husband, one Krishnaswami Iyer, who is dead. On 23rd August, 1930, Venkatarama Ayyar for himself and as guardian of his then minor sons including the present third respondent in the Court below, Samalam Ayyar (1st respondent in the Court below), the second respondent and the appellant joined in the execution of a usufructuary mortgage in favour of the father of respondents 4 and 5 below for a sum of Rs. 92,800 as evidenced by Exhibit A-1. The constitutent elements of the debt evidenced by this transaction were as follows (1) a sum of Rs. 57,570 being the balance of principal and interest under a simple mortgage deed, dated 27th March, 1922, for Rs. 26,000 (Exhibit A-13) executed by Nataraja Iyer, the adoptive father of Samalam Ayyar (1st respondent) and Venkatarama Ayyar. (2) Rs. 1,992 being the balance due on a promissory note, dated 9th February, 1923 (Exhibit B-48) executed by both Nataraja Iyer and Venkatarama Ayyar. (3) A sum of Rs. 8,000 left with the mortgagee for discharge of a decree debt. (4) A sum of Rs. 23,738 similarly left with the mortgagee for payment of mortgages described in Schedule C and (5) Rs. 1,500 received in cash.

(3.) It has now been found by the learned Subordinate Judge, and this finding is not in dispute before us, that the document Exhibit A-I has been executed by four persons, of whom the appellant alone is an agriculturist entitled to the benefits of Madras Act IV of 1938. The other three executants were non-agriculturists, who are not so entitled. The learned Subordinate Judge has held, following the decision in Ramaswami Ayyangar V. Kailasa Thevar,1951 2 SCR 292, that though that decision related to a mortgage decree and the present application is one by co-mortgagors under Section 19 (A) for the scaling down of a mortgage debt, nevertheless the same principle applied, and that the appellant would be entitled, upon payment of the sum scaled down in her favour alone, to redeem her share of interest in the mortgage. She was not entitled, upon payment of the scaled down amount, to redeem the entire mortgage, treating it as an intergral debt.