KAILASA TEVAR Vs. KASIVISWANATHAN CHETTIAR

JUDGEMENT

(1.) These are applications for leave to appeal to His Majesty in Council. Defendant l in the suit and respondent 1 in the appeal is the petitioner. The suits out of which this and the connected petitions arise were filed by certain creditors for recovery of sums due on either mortgage deeds or promissory notes executed by the petitioner. The petitioner was defendant 1 in the trial Court and the other members of his family were impleaded as defendants 2 to 7. Defendant 2 is his brother and defendants 3 to 7 are his paternal uncle's sons.

(2.) In 1895 there was a division between the two branches and it is in evidence that there was also a division between the petitioner and his brother as a result of O.S. No. 36 of 1935. The family business was kept joint and the petitioner was managing the business. The petitioner was ex parte in all the suits. The other defendants contended that they were not liable for the debts incurred by defendant l. The trial Court exonerated some of the defendants and gave a decree against the others in all the eight suits. Both the parties filed appeals to the High Court and there were 11 appeals in all. All the appeals were heard together and disposed of by a common judgment. This Court held that all the members of the two branches were liable in all the suits. In all the eight suits therefore the creditors succeeded in getting a decree against all the defendants.

(3.) By the time the appeals came on for hearing, the Madras Agriculturists Relief Act(4 of 1938) had been passed by the Local Legislature. By virtue of the provisions of that Act, certain benefits were conferred upon agriculturists to have their debts scaled down in accordance with the provisions of that Act. Applications were filed by defendants 2 to 7 for scaling down the debt. Even those defendants against whom the suits had been dismissed by the lower Court filed such applications to provide for the contingency of the High Court passing a decree against them. According to a Full Bench decision of this Court, Such applications must be disposed of by the High Court after calling for such findings as may be necessary from the lower Court. There was a dispute whether the defendants were agriculturists and entitled to the benefits conferred under the Act and also on the question whether the defendants were precluded from obtaining any relief by reason of certain exceptions, one of which is that a person who paid house tax in respect of buildings of the annual rental value of Rs. 600 and upwards is not entitled to the benefits under the Act even though he was an agriculturist. The petitions filed by defendants 2 to 7 were sent down to the trial Court for finding on these questions. It may be mentioned that defendant 1 (the petitioner herein) was made a respondent in these petitions. When the matter went back before the lower Court, defendant 1 appeared by a pleader. The District Judge held that the defendants were agriculturists and that it was not proved that they paid house tax on houses of the annual rental value of Rs. 600 or upwards. The District Judge was, therefore, of opinion that the petitioners were entitled to the benefits under the Act. As regards the amounts which would be due to each of the creditors in case the scaling down was permitted, both parties filed memoranda of consent showing what the amount would be if the debts were scaled down. In these memoranda defendant 1's pleader also signed. When the matter came back to this Court after receipt of findings from the lower Court, the creditors disputed the correctness of the findings of the lower Court and also raised the further contention that in any case defendant 1 ought not to be given the benefit of the Act as he had not filed any application to have the debt scaled down. This Court rejected the contentions of the creditors on the merits and held that as regards defendants 2 to 7 the debts should be scaled down and the figures given in the memoranda of consent filed by the parties were adopted. But as regards defendant 1- the petitioner herein-this Court held that as he had not filed any application, the decree against him should stand undisturbed.