KAMALA BAI AMMAL Vs. THEETHACHARI ALIAS APPU RAO
LAWS(MAD)-1950-4-14
HIGH COURT OF MADRAS
Decided on April 11,1950

KAMALA BAI AMMAL Appellant
VERSUS
Theethachari Alias Appu Rao Respondents

JUDGEMENT

SUBBA RAO, J. - (1.) THE question in this appeal turns upon the construction of Section 4, Claue (h) of Madras Act IV [4] of 1938. One Ranga Rao executed a deed of mortgage dated 8 -12 -1930, for a sum of Rs. 2750 in favour of his daughter Seethammal, In execution of a money decree obtained by a creditor against Ranga Rao, the mortgaged properties were purchased by one Krishna Rao, subject to the suit mortgage. Krishna Rao in his turn sold the equity of redemption in the properties to the sister -in -law, defendant 1. Defendant 2, the husband of defendant 1, is a subsequent mortgagee. Defendants 3 and 4 are the lessees of the properties. Defendant 5 is a sub -mortgagee from Seethammal. See -thanamal died on 24 -8 -1945. The plaintiff, as her heir, filed O. S. No. 195 on the file of the Court of the Subordinate Judge of Coimbatore for recovery of a sum of RS. 7389 -2 -8 the amount due under the mortgage bond. The defendants contended that the suit mortgage was not supported by consideration, that it was bad for non -joinder of parties, that the suit document was taken by the plaintiff benami in the name of his wife and that defendant 1 was entitled to a scaling down of the decree. The learned Sub -ordinate Judge held against the defendants on all the points. He held that as the mortgagee was a woman on 1 -10 -1937, the debt due to her was exempt from the operation of the Act. In the result he gave a preliminary decree for the recovery of the suit amount. Defendant 1 has preferred the above appeal.
(2.) THE learned counsel for the appellant argued that Section 4 (h), Madras Agriculturists Relief Act, does not apply to the suit debt as the plaintiff is not a woman at the time the debt is sought to be enforced, though the creditor was a woman on 1 -10 -1937. The relevant provisions may be extracted: 'Section 3 (iii) - -'debt' means any liability in cash or kind, whether secured or unsecured, due from an agriculturist, whether payable under a decree or order of a civil or revenue Court or otherwise, but does not include rent as defined in Clause (iv), or 'kanartham' asdefined in Section 3 (1) (i), Malabar Tenancy Act, 1929; Section 7: Notwithstanding any law, custom, contract or decree of Court to the contrary all debts payable by an agriculturist at the commencement of this Act, shall be scaled down in accordance with the provisions of this Chapter.' Section 13 provides for the scaling down of interest due on any debt incurred by an agriculturist after the commencement of the Act. Section 4 runs thus: 'Nothing in this Act shall affect debts and liabilities of an agriculturist falling under the following heads : (h) any debt or debts due to a woman on 1 -10 -1937, provided that the value of the property owned by her on that date, including the principal amount of debtor debts so due, did not exceed six thousandrupees.' A combined reading of the aforesaid provisions disclose the intention of the Legislature. Under the Act all debts payable by an agriculturist are liable to be scaled down. Section 4 excludes certain category of debts from the operation of the Act. The debts so excluded are defined and put under various heads. It is very difficult to ascertain any consistent principle for the classification adopted by the Legislature. The only logical basis is that the section defines the category of debts excluded from the operation of the Act. The debts excluded are narrated and the section does not purport to deal with the qualification of a creditor when he seeks to enforce his debt. The wording of Section 4 (h) is clear and unambiguous and does not admit of any doubt. A debt duo to a woman on 1 -10 -1937, who on that data did not own property of the value mentioned therein, is excluded. The point of time when the debt must satisfy the conditions laid down is 1 -10 -1937. It lays down only two conditions, (1) that on 1 -10 -1937 it should be a debt due to a woman, (2) on that date she did not own property of the value mentioned in that clause. If these conditions are complied with, the debt is excluded from the operation of the Act. Mr. T.M. Krishnaswami Aiyar, the learned counsel for the appellant argued that the Legislature intended to protect only woman creditors and therefore the clause must be so construed as to carry out the intension of the Legislature. He suggests that the debt to be exempted must comply with two conditions (1) it must be a debt due to a woman at the timewhen it is sought to be recovered, (2) that it should be a debt on 1 -10 -1937 complying with the other conditions of that clause. He forcefully narrated the anomalies that would follow if this construction was not adopted; for, he contended that the object of the Legislature would be frustrated if the creditor, though a man would be entitled to the exemption, whereas the intention was only to protect the interests of women. The construction suggested by him would involve the adding of some words which are not found in the clause. What is exempted is a debt, and the debt exempted is qualified by the provisions of the clause. It does not say that the creditor should be a woman at the time of enforcing the debt. Arguments based upon anomalies and unjust preference to a particular class of creditors do not appeal to us. An exproprietary Act of this type necessarily must contain arbitrary provisions, and it is not our province to question the policy of the Legislature, but to give effect to the clear words used. Indeed, there would be obvious anomalies even if he accepted the argument of the learned counsel. A creditor may be a woman on 1 -10 -1937. She may assign the debt to a man who in his turn may assign it to a woman. Assignments may be made even pending a suit. We do not think that the exemption should be made to depend upon such changing circumstances.
(3.) WE shall now proceed to consider the decisions cited. The application of Section 4 (h) of the Act was first considered in Ramaswami v. Alagayammal, I. L. R. (1940) Mad. 688 : A. I. R. 1940 Mad 421. The creditor in that case, being a woman, claimed the benefit of the exemption under Section 4 (h) of the Act. Besides the decree debt sought to be scaled down, she was entitled to a half share in a mortgage debt from another person, but had no other property, and the principal amount of those debts did not exceed Rs. 3000. It was argued for the debtor that the creditor was not entitled to the exemption claimed as she owned, on the material date, other property, namely, half a share in the mortgage debt referred to. The learned Judges held that debts due from an agriculturist to a woman on 1 -10 -1937 were not to be scaled down under the Act if on that date the principal amount of such debts did not exceed Rs. 3000 and the woman did not own any property other than such debts apart from her personal belongings. In the course of the judgment the following observations were made: 'There is nothing to indicate that the words 'any debt or debts in Clause (h) refer to the debt or debts in respect of which the application for scaling down has been made. On the other hand, the opening words of the section, 'Nothing in this Act shall affect debts and liabilities of an agriculturist falling under the following heads' show that the exemption relates to certain classes of debts and bas no particular reference to the debt sought to be scaled down. The exemption under Section 4 (h), as we understand the provision, covers a particular category of debts, limited in regard to the nature and extent, while insisting, as a condition of its application, that the creditor woman should not have owned on the date specified any other property, that is to say, property not falling under that category apart from property excluded by the explanation.' Though this is not a direct decision, the construction put upon the words by the learned Judges will certainly help us to decide the present case The categories of debts mentioned in Section 4 are exempted from the operation of the Act. In Muthal Achi v. Doraiswami Pillai A. I. R. 1942 Mad. 662: 203 I. C. 192 the original creditor was a male, but the debt was assigned to a woman and on 1 -10 -1937 the creditor happened to be a woman. The learned Judge says that : 'Having taken the assignment the plaintiff became the owner of the debt and when she claimed the benefit of the exemption provided by the Act for women creditors, it is no answer to say that the original payee under the suit note was a male.' The learned counsel relied upon the words 'provided by the Act for women creditors' and argued that the creditor who seeks to get an exemption must be a woman. The question argued before us could not have been raised in that suit and the general observations of the learned Judge could not be relied upon in support of an argument that was not raised before him. Further, the learned Judges did not say that the creditor who is enforcing the debt must be a woman. The words used could as well be understood to refer to the son of the creditor on 1 -10 -1937. ;


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