TRIPASURU VENKATA NARASINGA RAO Vs. VYSYARAJU SURAYYA RAJU

JUDGEMENT

(1.) This is an appeal from a judgment and decree passed by the Court of the Subordinate Judge of Chicacole in a suit brought by the appellant to redeem a mortgage executed by him and his sons in favour of respondent 1 (hereinafter referred to as the respondent). The appellant's sons were impleaded in the suit as defendants 2 to 4 of whom defendant 4 died soon after the suit was instituted and the surviving sons are respondents 2 and 3 to this appeal. The mortgage was executed on 27 March 1929 at Berhampore in Ganjam District then part of the Madras Presidency, and it provides for the repayment of the principal sum of Rs. 26,000 with compound interest at fourteen annas per cent, per month with yearly rests. The mortgage money was charged on immovable properties situated partly in Vizagapatani District and partly on Ganjam District. The appellant's main contention in the Court below, and only contention in this appeal, was that he and his sons were agiculturists within the meaning of the term as defined in the Madras Agriculturists Relief Act, 1938, and that therefore the mortgage debt was liable to be scaled down in accordance with the provisions thereof. The respondent contested this claim on the ground that the appellant was disqualified, under proviso D to Section 3 (ii) from claiming the benefits of the Act as an agriculturist and that even otherwise, the Act which was passed by the Provincial Legislature could not affect the suit mortgage as the loan was advanced and the bond was executed at Berhampore outside the province of Madras and part of the properties mortgaged were also situated outside the province. The learned Subordinate Judge held that the appellant was not disqualified under the proviso, but as part of the mortgaged properties were situated outside the province and the mortgage was indivisible, the Act did not affect the respondent's rights under the mortgage and that the debt could not therefore be scaled down under its provisions. He passed a decree accordingly declaring that the respondent was entitled to the full amount due under the mortgage deed, viz., Rs. 26,000 for principal and Rs. 53,760-7-3 for interest.

(2.) In order to appreciate the contentions of the parties it is necessary to state a few facts. Before the Government of India Act, 1935, was passed, the District of Ganjam was part of the presidency of Madras. As provided in Section 289 (1)(b) of that Act, the new province of Orissa was constituted by the Government of India (Constitution of Orissa) Order, 1936, and certain areas were transferred from the presidency of Madras to the new province thus constituted. Among such areas were Berhampore and Aska taluks of the Ganjam District wherein some of the mortgaged properties, viz., the Kumari estate and the house at Berhampore are situate. The other item comprised in the mortgage, viz., the Tarlapeda Estate, Tek-kali Taluk, is situate in the District of Vizagapatam in the presidency of Madras. The appellant pays a sum of Rs. 255-8-0 to the Government of Madras as peshkush for the Tarlapeda Estate and about Rs. 2308 to the Government of Orissa in respect of the Kumari and other estates which he owns in that province. These facts are not in dispute. Now the definition of an "agriculturist" so far as it is material here, runs thus: Section 3 In this Act, unless there is anything repugnant in the subject or context,.... (ii) agriculturist means a person who (a) has a saleable interest in any agricultural or horticultural land in the province of Madras, not being land situated within a municipality or cantonment which is assessed by the Provincial Government to land revenue (which shall be deemed to include peshkush and quit rent) or which is held free of tax under a grant made, confirmed or recognised by Government... provided that a person, shall not be deemed to be an agriculturist if he.... (D) is a landholder of an estate under the Madras Estates Land Act, 1908, or of a share or portion thereof in respect of which estate, share or portion any sum exceeding Rs. 500 is paid as peshkush or any sum exceeding Rs. 100 is paid as quit rent, jodi kattubadi, poruppu or the like, or is a jenmi under the Malabar Tenancy Act, 1929, who pays any sum exceeding Rs. 500 as land revenue to the Provincial Government.

(3.) It was suggested for the appellant that the words "to the Provincial Government" at the end of the proviso qualify not only the word pays in the last sentence but also the words is paid in the earlier part of the proviso, so that the payment of the peshkush in excess of the specified limit must, in order to disqualify the payer under the proviso, be to the Provincial Government, and that, therefore, the appellant who does not pay more than Rs. 255-8-0 as peshkush to the Provincial Government of Madras for the Tarlapeda estate which is the only estate he owns in this province does not come within the mischief of the proviso. This argument has found favour with the learned Subordinate Judge, but we find it impossible as a matter of grammatical construction to read the last four words as qualifying the payment of peshkush referred to in the earlier part of the proviso which must, therefore, be taken to exclude from the definition a person who pays any sum exceeding Rs. 500 as pesh. kush to the Provincial Government or to any other Government provided, of course, such peshkush is paid in respect of "an estate under Madras Estates Land Act" or of a share or portion thereof. We see no force in the suggestion that the Legislature is not likely to have intended to make ownership of property outside the province a ground of disqualification, as we find that in provisos A, B and C assessment to income-tax and property tax even outside the province is expressly stated to be a ground of disqualification. The fact is that while the definition makes the ownership of certain kinds of property in this province the basis of agriculturist status, the disqualifying circumstances mentioned in the provisos would appear to have reference to the general financial position of the individual. In this view the appellant would be disqualified under the proviso as he admittedly pays over Rs. 2500 as peshkush to the Provincial Governments of Madras and Orissa in respect of the estates held by him in the two provinces, unless it can be said that the estates for which he pays peshkush to the Orissa Government are not estates "under the Madras Estates Land Act, 1908." Accordingly, arguments on this part of the case centred round the question whether the appellant was or was not "a landholder of an estate under the Madras Estates Land Act, 1908" in respect of the estates owned by Aim in the Province of Orissa.