MINOR RAMASWAMI SENNANDAR BY GUARDIAN DANDAYUTHAPANI SENNANDAR Vs. MINOR MURUGAYYA KATTAVETTI REPRESENTED BY THE NEXT FRIEND SUNDARATHAMMAL

JUDGEMENT

(1.) On the 14 June, 1925, Kulandaivelu, the father of the first defendant, executed a mortgage of agricultural land in favour of Arumugha, the father of the plaintiff, to secure a loan of Rs. 400. The mortgage deed fixed the period of redemption at two years. Kulandaivelu settled the mortgage property on the second defendant, but, of course, the settlement was subject to the rights of the mortgagee. On the 21 January, 1938, Arumugha died leaving a widow and three sons. The sons as the legal representatives of their father brought the present suit to enforce payment of the mortgage debt. They were all minors and were represented by their mother as their next friend. The second defendant pleaded that the suit was defective because the mother herself was not a plaintiff. It was said that by virtue of the Hindu Women's Rights to Property Act, 1937, she had acquired an interest in her husband's estate and therefore she should have joined in the suit. This argument prevailed in the trial Court (the Court of the District Munsiff of Tiruvadi), but on appeal the Subordinate Judge of Tanjore reversed the decree of the District Munsiff. The second defendant has appealed.

(2.) In In re the Hindu Women's Rights to Property Act 1937 and the Hindu Women's Rights to Property (Amendment) Act, 1938 and In re a Special Reference under Section 213 of the Government of India Act, 1935,2 the Federal Court held that the Hindu Women's Rights to Property Act did not operate to regulate succession to agricultural land in the Governors Provinces; and in Megh Raj V/s. Allah Rakhia; Megh Raj V/s. Bahadur it was accepted that in the Constitution Act "land" comprises both corporeal and incorporeal rights and interests. To-day in Konjeti Kotayya V/s. Konjeti Annapurnamma we have held that the decision in In re the Hindu Women's Rights to Property Act, 1937 and the Hindu Women's Rights to Property (Amendment) Act, 1938 and In re a Special Reference under Section 213 of the Government of India Act, 1935,2 applies to a lease of agricultural land and therefore the Hindu Women's Rights to Property Act does not confer on a Hindu widow a right to such property. There is no difference in principle between a lease and mortgage. They are both interests in land. Moreover, this Court in common with molt other High Courts of India has held that a mortgage suit is a " suit for land ". The learned advocate for the appellant has suggested that the decision of the Federal Court in In the Hindu Women's Rights to Property Act, 1937 and the Hindu Women's Rights to Property (Amendment) Act, 1938 and In re a Special Reference under Section 213 of the Government of India Act, 1935,2 does not apply to a simple mortgage, as is the case here, because the debt can be separated from the security. It is true that the mortgagee can give up his security and sue on his debt; but when he seeks to enforce his security, his suit is one to enforce his interest in the land. That is the answer.

(3.) The appeal is dismissed with costs.