SUBBU PANDARAM Vs. LAKSHMINARAYANA CHETTIAR

JUDGEMENT

(1.) The learned Counsel for the petitioner contends that the order of the Court below directing that the debt should be scaled down only so far as the appellant was concerned and also with reference only to the item of agricultural land included in the mortgage, is wrong. I agree with this contention. The decree debt sought to be scaled down is a debt due by the joint family of the third defendant, petitioner herein, and Section 19 of the Act makes it clear that in respect of a joint family debt any member of the family can apply to have the decree debt scaled down according to the provisions of the Act. And it is equally clear that in such cases it is the debt of the family as a whole that is to be scaled down provided, of course, the joint family is proved to be an agriculturist within the meaning of the Act. There is nothing in the Act to suggest that the benefit of scaling down in such cases is to be restricted to the member of the family who makes the application. Again, the view of the learned Subordinate Judge, that the scaling down of a mortgage-debt due by an agriculturist joint Hindu family ought to be only with reference to the agricultural lands which happen t6 be included in the mortgage but not with reference to other properties like houses, etc., comprised in the mortgage, is erroneous, as the entire scheme of the Act has reference to the character of the debtor and not to the character of the property comprised in a security for the debt.

(2.) The learned Counsel for the respondent however points out that the main question raised by him in his counter-affidavit filed in the lower Court, namely, that the petitioner's family was not an agriculturist at all for the reasons stated therein, was not at all dealt with and decided by the learned Judge. This is no doubt so and it is perhaps due to the misconception of the learned Judge that the scaling down under the Act was to be with reference only to the agricultural lands comprised in the mortgage. There is nothing to support the suggestion of the learned Counsel for the petitioner that this point was apparently given up by the respondent whose counsel however repudiates the suggestion before me. In these circumstances I set aside the order of the Court below and send the case back for disposal according to law in the light of the observations herein.

(3.) The costs of this petition will abide and follow the result.