KALIYAMMAL Vs. RAGHURAMA GOUNDER

JUDGEMENT

(1.) The questions in all these matters REFERRED TO this Full Bench are :-

(2.) The facts which lead to this Reference in all these cases can be briefly, stated as follows : We find from the order of reference in all these cases that a Division Bench of this Court in Komalambal v. Neelavathi, Ammal, (1987) 100 Mad LW 1059 held that the legal representatives of a deceased judgment-debtor are not entitled to claim the benefits of the Tamil Nadu Act 13 of 1980. It was contended that in the said Division Bench case, except three Judgments of learned single Judges in Lakshmiammal v. Sundaramurthi, (1984) 2 Mad LJ 47, Sara Nisha v. Raju, (1984) 2 Mad LJ 152 and Pattammal v. Ponnusami Udayar, (1986) 99 Mad LW 627, earlier Division Bench decisions have not been REFERRED TO. There are other decisions of learned Judges of this Court rendered under the Tamil Nadu Act 4 of 1938, which is a comparable legislation. One is in Perianna Gounder v. Sellappa Gounder, (1938) 2 Mad LJ 1068, which was approved by the Supreme Court in Cheruvu Nageswaraswami v. Viswasundara Rao, AIR 1953 SC 370 and another in Kona Hawan Fathima Bivi v. Mohamed Mohideen Nachiar, (1942) 2 Mad LJ 506 wherein it was held that the legal representatives and assigns of indebted agriculturist debtor are entitled to claim the benefits of the Tamil Nadu Agriculturists Debt Relief Act, 4 of 1938. Further, the definitions of 'Debt', 'Debtor'' 'Creditor' are in part materia with the later Acts 38 of 1972 and 13 of 1980 and 50 of 1982. In all these cases the legal representatives of the deceased debtor claim the benefits of the Act either during the pendency of trial or at the stage of execution. Let us consider the first question in the light of the provisions of various Acts and the conflicting views expressed by this court, other High Courts and the Supreme Court.

(3.) A Division Bench in Kamalambal v. Neelavathiammal, (1987) 100 Mad LW 1059, agreed with the view expressed by Shanmukham J. in Sara Nisha v. Raju, (1984) 2 Mad LJ 152 and V. Ramaswami J. in Pattammal v. Ponnusami Udayar, (1986) 99 Mad LW 627, while disagreeing with the view expressed by one of us, namely, Nainar Sundaram J. in Lakshmiammal v. Sunderamurthi Chetti, (1984) 2 Mad LJ 47, and held that the representatives of the deceased judgment-debtor are not entitled to the benefits of Tamil Nadu Act 13 of 1980. The main reason alleged in the said decision is that while defining the word 'creditor' under S.3, clause (b), the words 'includes the heir of such person' are mentioned; but, on the other hand, in the definition of 'debtor' there is no such inclusion of the legal representatives of the debtor. It only simply states that 'a person from whom any debt is due'. It was also held that a legal representative cannot be made personally liable for a decree against a deceased judgment-debtor and that only the properties of the deceased judgment-debtor in the hands of the legal representative are answerable to the decree debt and as such a legal representative cannot be said to be a person from whom a debt is due.