P L P DEVARAYAN CHETTIAR Vs. SPSUBRAMANIA IYER

JUDGEMENT

(1.) This civil revision petition is preferred by the plaintiff in a small cause suit and it raises a question as to the interpretation of the explanation to Section 8 of Act IV of 1938. The debt in question starts with a promissory note executed by defendants 1 and 2 and one Toongan. This was discharged by another note of 1932 executed by the same three persons. On the 29 July, 1935 the suit note was executed by defendants 1 and 2 alone discharging the earlier note of 1932. It is not a case of a joint family debt, the 1 and 2nd defendants being of different castes. We have no information whether Toongan was or was not an agriculturist. It was proved that in May, 1937 the 1 defendant purchased lands which qualify him as an agriculturist under the Act. The 2nd defendant appears to have been an agriculturist throughout. Three contentions have been placed before us on behalf of the petitioner to show that the lower Court was wrong in scaling down the debt as against both the defendants.

(2.) Firstly it is contended that it is not the same debt as that incurred in 1932, the debtors being different. It seems to us that this contention must be negatived on the authority of the decisions in Doraikannu Odayar V/s. Veerasami Padayachi , and Peria Karuppan Chettiar V/s. Appaji Naidu . The debt of 1932 was apparently due jointly and severally from the defendants and Toongan and it is discharged by another debt due from the defendants. This, according to our rulings is sufficient to make the latter debt an inclusion in a fresh document of the former debt.

(3.) A further contention is that even if the suit debt is deemed to be a renewal of the debt of 1932, it cannot be a renewal so far as Toongan's share in the debt is concerned, he not being shown to be an agriculturist, and that at the most the debt is to be scaled down only as to two-thirds of this amount. This contention is apparently based on an assumption that the three debtors under the 1932 document were each liable only for one-third of the debt which does not appear to be the case. It seems to be an ordinary case of a joint and several promissory note, each of the debtors being liable for the whole debt. There is therefore no basis for assuming that as to one-third of the amount the new note is a renewal of Toongan's debt and not a renewal of the liability binding the defendants by reason of the earlier note.