MAHABOOB ALI SAHEB Vs. KHUDRATULLA

JUDGEMENT

(1.) This Civil Revision Petition arises out of an order dismissing an application under the rules framed under Madras Act IV of 1938, to determine the amount of the debt. The application was dismissed on the ground that the debt was not one amenable to the processes of the Act. We have held in such cases that no appeal lay under the rules. The amendment introduced by the Madras Agriculturists Relief Amendment Act of 1943, substantially repeats the provisioions of Rule 9 of the rules except that an appeal is allowed not only from an order declaring the amount due to the creditor, but also from an order declaring the debt to has been discharged. No right of appeal is however given when an application for a declaration.is dismissed on the ground that the debtor is not an agriculturist or the debt is not one which can be scaled down under the Act. An objection was taken by Mr. Rajah Ayyar on behalf of the respondents that there are no grounds for revision in this case. As we are of opinion that the revision has to fail on the merits we do not propose to go into this objection.

(2.) The liability which the petitioners desired to scale down arose out of the settle-ment of a dispute relating to the estate of the father of the petitioners , one Hyder Ali Hyder Ali died leaving three children, namely, the two petitioners and a daughter Fatimunnissa. Fatimunnissa herself died later and it would appear that she claimed, her share in the estate before her death. After her death her husband and her children started proceedings to claim her one-fifth share of the estate of Hyder Ali Mediators intervened and the dispute was settled by the deed Ex. P-I dated 10 September. 1929. The main provisions of that deed were that in consideration of the relinquishment by the heirs of Fatimunnissa of the share which they were claiming in the assets of Hyder Ali, the two petitioners undertook to pay a sum of Rs. 13,090 within four months. They also undertook to recognise the right of Fatimunnissa's heirs to a thatched house of the value of Rs. 500. The share of the major heirs in this Rs. 13,000 was to be paid to them within four months. The share of the minor; heirs was to be utilised for the purchase of land to the value of their share which was to be put into the names of the minors, but was to be held by their father, the husband of Fatimunnissa, until they attained majority, and if at any time any one of the minors should repudiate the settlement or claim the full share in the estate, the property purchased out of the minor's share of this money together with the income thereof was to be handed over by the father to the present petitioners. There was a further provision in the deed of settlement that if the arrangement for the purchase of land was not completed within the four months, the petitioners were to deposit the minors share of the cash amount with the Imperial Bank of India in their own names and their liability for interest would thereupon cease, but if they failed to make the deposit at the end of the four months period they would be liable for compound interest at the stipulated rate. It would appear that the petitioners, have paid the amounts due under this document to the adult heirs and also to all, except two of the minors. Those two are the present respondents, who, on the date when this petition was filed, were respectively aged 19 and 15 years. It would appear that they did deposit the full amount in the Imperial Bank but that they subsequently withdrew the amount which represented the share of the present respondents in the agreed sum.

(3.) The lower court dismissed the application on two grounds: firstly on, the ground that the obligation was one covered by Section 4(f), being a liability arising out of a breach of trust; and secondly on the ground that the liability was excluded from the provisions of Secs.8 and 9, because it represented unpaid purchase money for which a charge is provided under Section 55(4)(b) of the Transfer of Property Act, applying Section 10(2)(ii) of Madras Act IV of 1938. Without going into the correctness of these findings it seems to us that there is a much simpler reason for rejecting the application.