Decided on August 18,1952



Satyanarayana Rao, J. - (1.) The plaintiffs are the appellants in this appeal. The suit was instituted for the recovery of a large amount of Rs. 30000 as principal and interest due under a mortgage, Ex. P. 1, dated 19-9-25 executed by one T. Seshaih, the father of defendants 2 to 4 and the husband of the first defendant in favour of the plaintiffs. There were various defences to the action, and we are now concerned only with two questions: (1) whether the debt is liable to be scaled down under Madras Act 4 of 1938 and (2) what amount should be deducted as rent for the godown in the occupation of the plaintiffs from the amount due under the mortgage.
(2.) The defendants claimed that they were agriculturists entitled to the relief under the Act. The learned Subordinate Judge found that they were agriculturists, and that they were entitled to relief under Act 4 of 1938. The attempt of the plaintiffs was to exclude the application of the Act to the present case by alleging that the case fell under Section 4(d) of the Act, which states: "Nothing in this Act shall affect debts and liabilities of an agriculturist falling under the following heads:..... (b) any debt contracted on the security of house property alone in a Municipality, a cantonment or a panchayat which was a Union before the 26th August 1930." The learned trial Judge did not accept this plea; as he found that security was not created on "house property alone" within the meaning of the sub-clause. As regards the deduction from the mortgage amount, of rent which was payable by the mortgagee for the godown occupied by him he found that the original arrangement was that the mortgagee should pay rent at the rate of Rs. 2-8-0 per" month for the godown, but as in 1928 D. W. 6, who occupied a portion of the godown paid a higher rent and that the defendants were entitled to claim deduction of rent at the rate of Rs. 5 per month from 1928 instead of Rs. 2-8-0 per month.
(3.) The appellants in this appeal challenge these findings of the learned Subordinate Judge. As regards the contention of the plaintiffs that the Act does not apply to the mortgage in suit because security was created on house property alone, we think that the view taken by the learned Subordinate Judge is correct. Ex. P. 1, the mortgage, comprises four items of property. The first three items described in the schedule to the mortgage deed are tiled houses within specified boundaries situate at Gudur. The fourth item which is also described by boundaries is a vacant site of 30 ankanams, which, it is in evidence, is not in the same row as the houses but in the opposite row. This item is treated therefore in the mortgage as an independent unit not appurtenant to any of the three houses specified in the deed. The clause relied on was interpreted by this Court though by a single Judge, in -- 'Ponnambala Chetti v. Ambalam Raman Chetti', AIR 1939 Mad 789 (A). "House property" in the clause means not, only the house and the site on which the house stands but also the site that is appurtenant to the house, and which is necessary for its enjoyment. It included garden, compound and yard, which are enjoyed as part of the house. If, however, there is an independent site, which is intended for a different purpose such as for building, and is treated as a separate unit by the parties and also in the assessment registers of the Panchayat, Union or the Municipality, it should be treated as not forming part of the house property, and if such item is included in the mortgage deed along with the other house property, the clause does not apply, as the security was not created on the house property alone within the meaning of the clause. In contrast to that decision, we have the later decision in -- 'Namasivaya Mudaliar v. Srinivasa Iyangar', AIR 1940 Mad 54 (B), in which the site was, unlike the site in the earlier case, in the same compound as the house and was enjoyed as appurtenant to it. The whole of the property, that is, the house and the site within the compound wall was treated as house property, and therefore the benefit of the exemption was given to the mortgagee creditor. The later decision in -- 'Jikkini Bibi Sahiba v. Rangarayaki Ammal', AIR 1943 Mad 258 (C), doss not throw much light except that in that case along with house property the mortgagors mortgaged a site on which there was a superstructure belonging to a third party. The superstructure was excluded from the security, as it did not belong to them. In such a case it was held that it could not be said that the security was created on house property alone, as the mortgagor included in the mortgage, apart from house property, a site on which the superstructure belonging to some other person stood.;

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