P VARAHALAMMA Vs. REPETI RAMANNA

JUDGEMENT

(1.) Varahalamma, the petitioner before us, obtained a preliminary decree in a suit brought on a mortgage against the respondents. She died an application under O. 34, R. 5, C. P. C. praying the Court to pass a final decree directing the sale of the mortgaged property for the realisation of the amount. The mortgage was executed by late Repeti Jaggamma and his sons, respondents 1 to 4. The mortgage schedule consisted of Ac. 4-76 cents of wet land in S.No.87 and Ac. 3-60 cents of wet land out of Ac. 9-28 cents Survey Nos. 226/2 and 226/4. The respondents who are the sans and daughters of mortgagee, Repeti Jaggamma opposed the petition contending that the debt was not binding on them and in any case the proceedings abated under S. 4 (2) of the Andhra Pradesh Ordinance 25 of 1976. The learned District Munsif held that the respondents had taken the plea in the suit itself that the debt was not binding on them, that preliminary decree was passed holding all of them liable to pay the debt, and therefore they cannot now question the validity of the preliminary decree. As regards the question whether the respondents are entitled to the benefit of the provisions of A. P. Ordinance 25/76, the learned District Munsif answered the question in the affirmative and dismissed the application of the petitioner. The learned District Munsif held that the respondents are all small farmers falling within the definition of small farmer as defined under S. 3 (t) of the Ordinance 25 of 1976 and the proceedings consequently abated. It may be mentioned that the said ordinance has been repealed end replaced by Act No.7 of 1977 called the Andhra Pradesh Agricultural indebtedness (Relief) Act, 1977 to which we shah hereinafter refer to as the Act,

(2.) The central focus of controversy in this case centers round the question as to whether a debt incurred by a joint Hindu family is attracted or not by the provisions of the Act The submission of the learned counsel is that the debt incurred by the joint Hindu family is in divisible, that the liability created is joint and several and that the debts due from a joint family are not attracted by the provisions of the Act, According to him the joint family in any case is the person who owed the debt and the entire property owned by the joint family should be taken into consideration for the purpose of the Act and not the individual share of each member of the joint family as wrongly done by the Court below. On the other hand, the learned counsel for the respondents, tries to uphold the finding of the Court below that even though a loan has been obtained by a Hindu joint family, the provisions of the Act are attracted and the share of each major member has to be ascertained on the date when the Act came into force for the purpose of the Act.

(3.) The clue to this crucial question must be ascertained from the relevant provisions of the Act. For our purpose S. 3 (1), (p) and (t) which define family person and small farmer respectively are relevant and read as follows: