PERIA KARUPPAN CHETTIAR Vs. APPAJI NAIDU

JUDGEMENT

(1.) The petitioner obtained a decree against the respondents and other members of their undivided family in O.S. No. 265 of 1935 on the file of the District Munsif's Court of Chingleput for Rs. 2,567-4-0 on a promissory note executed on September 5, 1932, by the respondents Nos. 1 and 2 arid the father of respondent No. 4 who were, brothers. This promissory note was executed for Rs. 1,484 being principal and interest due under an earlier promissory note executed by the father of the fourth respondent with two others who were strangers to the family for Rs. 1,000 in favour of the petitioner on August 31, 1929. The respondents applied under Section 19 of the Madras Agriculturists Relief Act to scale down the decree and their contention has been that the promissory note of 1932 should be treated as a renewal of the earlier promissory note of 1929 within the meaning of the explanation to Section 8, notwithstanding that the makers of the two notes were different, and. that therefore the decree has to be scaled down with reference to the principal advanced under the earlier note. The Court below accepted this contention but we are asked to say in this revision petition that it is incorrect.

(2.) We have held in C.R.P. No. 113 of 1939 since reported in Neelappa Reddiar v. Solaimuthu Udayar (1940) 2 M.L.J. 517 approving the decision of Somayya, J., in Ramaswami Chettiar In re (1939) 2 M.L.J. 609, that under the explanation to Section 8, the renewal of a debt or its inclusion in a fresh document must be by the same debtor, and we have further held in Doraikannu Odayar V/s. Veerasami Padayachi (1940) 2 M.L.J. 651 that when a member of a joint Hindu family executes a fresh document for a pre-existing liability binding on the family but incurred on its behalf by another member, such previous debt can be regarded as renewed or included in a fresh document within the meaning of the explanation to Section 8 of the Act, as the debtor in each case is the same person, namely, the joint family [see Section 3(1) of the Act]. If, therefore, the promissory note of 1929 executed by the father of the fourth respondent jointly with two strangers was for a debt binding on the family, the case would fall under the explanation to Section 8 and the decree would have to be scaled down with reference to, the principal advanced under the earlier note of 1929. This question, however, has been left undetermined by the Court below as it held that it was not necessary for the purpose of the explanation to Section 8 that the debtor should be the same, a view which we have held to be untenable. If, on the other hand, it were found that the earlier note was not executed for a debt binding on the family, the question would arise whether so far at least as the liability of the fourth respondent is concerned, the explanation is applicable, his father who died during the pendency of the suit having been a party to both promissory notes. We consider that it is not necessary for the application of Section 8 that the parties to the earlier and the later debts should be absolutely identical. As observed by us in Doraikannu Odayar V/s. Veerasami Padayachi (1940) 2 M.L.J. 651 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 solely due by A is included in a fresh document executed by A and B. There is no obvious reason why the explanation to Section 8 should not be applied to cases of that sort when the application for scaling down the debt is made by the person who is a debtor under both the instruments. Even if the later transaction in such cases cannot be deemed to be a renewal in the strict sense of the term, it would amount to an inclusion of the pre-existing liability of the common debtor in the later document. The fourth respondent will thus be entitled in any case to the benefit of the explanation in scaling down the decree under Section 8.

(3.) The order of the Court below is set aside and the application under Section 19 is remitted to the lower Court for disposal in the light of this judgment. The costs of this revision petition will abide the result.