S RAMASUBBIER Vs. PRAMA AIYAR

JUDGEMENT

(1.) These are appeals preferred by decree-holders against orders scaling down their decrees under Section 19 of Madras Act IV of 1938. The debts which had ripened into these decrees had their origin in a promissory note for Rs. 7,000 executed by one Pichumani Aiyar and two of his sons Rama Aiyar and Venkatachalam Aiyar on 14 August, 1922, in favour of Srinivasa Aiyar, the father of these decree-holders. After Srinivasa Aiyar died, there was a partition between the two sons on 15 May, 1925, at which the debt was divided between them and in pursuance of the division the debtors Rama Aiyar and Venkatachalam Aiyar executed on 19 August, 1925, a promissory note for Rs. 4,900 to the appellant in C. M. A. No. 101 and another promissory note for Rs. 2,600 to the appellant in C. M. A. No. 160, their father having died in the meantime. On 13th August, 1928, Rama Aiyar and Venkatachalam Aiyar and the other two sons of Pichumani Aiyar who did join in the execution of the earlier notes executed two promissory notes for Rs. 5,400 and Rs. 2,200 respectively in discharge of the prior notes for Rs. 4,900 and Rs. 2,600 referred to above. In June, 1931, Venkatachalam Aiyar separated himself from his brothers by executing a release deed and on 5 of August, 1931, the other three brothers who continued joint executed promissory notes for Rs. 5,963 and Rs. 2,425 respectively in settlement of the debts due under the notes of 1928. The appellant in C. M. A. No. 101. brought O.S. No. 49 of 1933 for recovery of the amount due under his promissory note and obtained a decree on 16 September, 1933 and the appellant in C. M. A. No. 160 sued in O.S. No. 739 of 1932 for the amount due to him and obtained a decree on 6 February, 1933. These decrees have been scaled down by the Court below with reference to the principal sum advanced under the original promissory note of 14 of August, 1922, and the question for consideration in these appeals is whether in the circumstances mentioned above, the debt can be said at each stage to have been renewed or included in a fresh document in favour of the same creditor within the meaning of the explanation to Section 8 of the Act.

(2.) We have already held in Doraikannu Odayar V/s. Veerasami Padayachi (1940) 2 M.L.J. 651, that when a member of a joint 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, as the debtor in each case is the same person, namely, the joint family. It is not disputed in this case that the various promissory notes were executed on behalf of the joint family of Pichumani Aiyar and his sons. It follows, therefore, that so far as the debtors under the various promissory notes are concerned, they are substantially the same. The question next arises whether the creditor or creditors under the successive promissory notes can also be said to be the same. Here again, it will be seen from the facts mentioned above that the creditor in respect of each set of promissory notes executed subsequent to the partition in the creditors family is the same, namely, the appellant in each of these appeals. The debt due under each of these decrees can thus be traced back, through successive renewals to the promissory notes executed on the 19 of August, 1925.

(3.) Learned Counsel for the respondent would, also, have us go further back to the first promissory note of the 14 of August, 1922 and take the sum of Rs. 7,000, advanced thereunder as the principal sum for purposes of scaling down the decrees under Section 8. We are, however, unable to do so. As stated already, the earliest note was executed in favour of Srinivasa Aiyar, the father, and at the partition that took place after his death, the debt was split up into two unequal parts and the appellant in each of these appeals got the debtors to execute a separate promissory note for the portion of the debt allotted to him and these notes have been renewed subsequently from time to time. It has been argued that in view of the definition of creditor as including "his heirs, legal representatives and assigns," the promissory notes taken by the sons of Srinivasa Aiyar though for distinct portions of the debt due under the original note executed in his favour must be regarded as a renewal of that debt or at all events as its inclusion in fresh documents. But it seems to us that the explanation to Section 8 requires that the debt must continue in substance to be the same though the amount and the parties under the various documents given as vouchers for it need not be strictly identical. This requirement cannot be regarded as satisfied when the debt is divided among the heirs of the creditor and the debtor executes a separate instrument for a part of the debt in favour of each of such heirs. We are therefore of opinion that the promissory notes executed by the debtors separately in favour of the two sons of Srinivasa Aiyar for portions of the original debt allotted to them at the partition cannot be said to represent a renewal of the original debt or its inclusion in fresh documents within the meaning of the explanation, although the sums for which such promissory notes were given equal in the aggregate to the amount of the original debt.