DORAIKANNU ODAYAR Vs. VEERASAMI PADAYACHI ALIAS VEERASAMI CHATRAKONDAR

JUDGEMENT

(1.) This Civil Revision Petition raises questions arising out of the explanation to Section 8 of Madras Act IV of 1938. The petitioner was the third defendant in a suit on a promissory note and he applied to scale down the decree under Section 19. The promissory note relates back to a mortgage of 1922 executed by one Samiappa in favour of Pakkiri for a sum of Rs. 500. In 1929 Pakkiri assigned the mortgage to the plaintiff. Before this assignment, a payment of Rs. 250 had been made towards the mortgage. On 25 August, 1930, the first defendant, father of defendants 2 and 3, purchased the land covered by the mortgage from the sons of Samiappa and agreed to pay Rs. 755 in discharge of the mortgage. On 21st March, 1934, the first defendant paid Rs. 830 towards0 the mortgage and on the same date he and his son the second defendant executed a promissory note for Rs. 150 in favour of the mortgagee and the mortgage was thereby discharged. The plaintiff sued on the promissory note alleging that it was a family debt binding on all the coparceners and impleading the third defendant as a coparcener. On this basis he got a decree on 28 September, 1936. The third defendant applied under Section 19 of Act IV of 1938 to scale down the debt on the basis that the promissory note was in effect a renewal of the mortgage executed by Samiappa. The trial Court held that it was not a renewal and it is this decision which is now under consideration.

(2.) Now in view of our decision in Neelappa, Reddiar V/s. Solaimuthu Udayan approving the decision of Somayya, J., in Ramaswami Chettiar, In re , we must hold that the explanation to Section 8 contemplates the renewal of a debt or its inclusion in a fresh document by the same debtor. But it does not necessarily follow that the parties to the first debt and the second debt must be absolutely identical. There may be cases in which a debt due jointly and severally from A and B is included in a fresh document executed by A alone or cases in which a debt due solely by A is included in a fresh document executed by A and B. But we are not really concerned in the present case with either of these cases. In so far as there is a mortgage by Samiappa discharged by a promissory note executed by the first and second defendants it cannot be said that the promissory note is a renewal of the mortgage or an inclusion of the amount of that debt in a fresh document. But this does not dispose of the question. When the first defendant who must be deemed in view of the decree to have been acting as manager of the joint family purchased this land and undertook to discharge the mortgage on it, although there was no obligation to the creditor which the creditor could directly enforce by suing for the money from the first defendant, there was a liability towards that creditor which the creditor could enforce indirectly by suing on his mortgage for the sale of the hypotheca which the first defendant had purchased and this liability is a debt within the meaning of Madras Act IV of 1938. So much follows from the decision of Varadachariar and Abdur Rahman, JJ., in Perianna v. Sellappa . It also seems to follow from that decision that the liability of the purchaser being traceable to the original mortgage must be scaled down with reference to the date of the mortgage. On the basis of this decision we must hold that when the first and second defendants executed the suit promissory note they were in fact renewing a prerexisting liability which bound the family; or at all events, having regard to the strict definition of the term renewal in Barber v. Macknell (1892) 68 L.T. 29, they were including this pre-existing liability in a fresh document binding on the same debtor. It seems to follow therefore that the third defendant who is under Section 19 entitled to scale own the joint family debt embodied in the decree can ask that this debt be treated as a renewal of the pre- existing liability which dates, back to the mortgage of Samiappa.

(3.) It has, however, been contended that the liability in question is one in respect of which a charge is provided under Section 55(4)(b) of the Transfer of Property Act and that therefore it cannot be scaled down, having regard to the provisions of Section 10(2)(u) of Madras Act IV of 1938. It seems to us that this argument involves a certain confusion of ideas. There cannot be a liability except it be due to a person. When we speak of the same liability we must necessarily mean the liability to the same person. It is true that the liability to the plaintiff under the promissory note was co-extensive with the outstanding liability of the first defendant to his vendor, in respect of which it might be contended the vendor's lien existed. But it was not identical with that liability. The liability to A may be measured by the extent of the liability to B, but when the two liabilities are due to different persons they are not, the same liability. It seems to follow that the liability to the plaintiff which the applicant seeks to scale down is not a liability in respect of which a charge is provided under Section 55(4).