KAPALAVAYI KRISHNAMURTHY DIED Vs. MUSUNURI SESHADRI SASTRY

JUDGEMENT

(1.) The plaintiff is the appellant whose suit for the recovery of Rs.16,580-76 was partly decreed by the trial Court. There is no dispute as to the execution of the deed of mortgage by the defendants in favour of the plaintiff. There is also no dispute that the defendants are agriculturists. The only question for consideration in this appeal is whether the plaintiff is entitled to the exemption granted by section 4 (d) of the Madras Agriculturist Debt Relief Act.

(2.) The question arises in the following circumstances. There are two items of property which were mortgaged in favour of the plaintiff by Exhibit A-1 dated, 16th March, 1959. Admittedly item 1 of the suit property was purchased by the defendants in the year 1931 and item 2 in the year 1941. From the boundaries given of the two items of the mortgage deed, it is evident that item 2 is situate in the south-western corner of item 1. The western boundary of item 1 to some extent is item 2 and vice versa. There is also evidence to show that item 1 was mortgaged by the defendants after the purchase of item 2 in the year 1941. No doubt at the time item 1 was purchased it was an independent item and had nothing to do with item 2. But it is the case of the plaintiff that when the property was mortgaged to him, the defendants were treating items 1 and 2 as one single property and they made him believe so and mortgaged items 1 and 2 as one single property. The contention of the learned Counsel for the appellant is if items i and 2 were being treated by the defendants as one single property and when mortgaged by the defendants as one single property in favour of the plaintiff, it is not for them now to resile from this position and say that item 2 is separate from item 1 and therefore, it cannot be said that the mortgage is not of house property only.

(3.) The learned Counsel for the respondents contends that the mere fact that items 1 and 2 were being used or enjoyed by the defendants as one single property, is not sufficient for the plaintiff to claim exemption under section 4 (d) of the Act. In addition to that, the plaintiff will have to establish that item 2 is necessary for the enjoyment of item 1. Evidently, the argument runs, as items 1 and 2 were originally two separate items, by no stretch of imagination it can be said that item 2 is necessary for the enjoyment of item 1. There is also no evidence that either a well or a latrine or any other convenience is situate within item 2 which is necessary for the enjoyment of item 1 so that it can be said that item 2 is necessary for the enjoyment of item 1.