N. JEEYAPPA IYENGAR Vs. T.N. SRINIVASAN AND ANR.

JUDGEMENT

(1.) THIS appeal arises out of a petition, O.P. No. 38 of 1954, filed by the present first respondent as the petitioner under Sections 9 -A and 19 -A of the Madras Act IV of 1938 for scaling down the amount due on a mortgage and for ascertainment of the amount due thereunder. The mortgage was one executed by respondent 5 in favour of respondent 1 in 1928 for a sum of Rs. 3,000. It was a possessory mortgage, and, having regard to the fact that the mortgagee was in possession of the hypotheca for over 25 years, on the date of the petition the mortgage would stand substantially discharged. The petitioner is the adopted son of the mortgagor, respondent 5, and he claimed to be an agriculturist. The first respondent who is the present appellant contested the petition on the ground that the petitioner was not an agriculturist, and, therefore, not entitled to the benefits of Act IV of 1938 as the petitioner and his father, respondent 5 ,were paying quitrent and jodi, over Rs. 100, for their shrotriem village and so excluded under Section 3 Proviso (D) of the Act. The first respondent also pleaded that the mortgage in question was not subsisting as a mortgage debt and no amount was due to the respondent thereunder, as it had been wiped out by virtue of a sale agreement, dated 9th May, 1942. His contention, therefore, was that, by reason of that sale agreement, the mortgage got completely discharged and was not therefore subsisting as a debt on the date of the application, and that, when once there was no debt subsisting for scaling down, the petition was to be dismissed as unsustainable.

(2.) ON the question whether the petitioner was an agriculturist, the learned District Munsif held that, under Proviso (D) to Section 3 of the Act, the petitioner cannot claim to be an agriculturist. The learned District Munsif further held that, in the face of the creditor's admission that there was no subsisting debt, the application was not maintainable. He accordingly dismissed the petition. On appeal by the petitioner, the learned District Judge held that he was an agriculturist entitled to the benefit of the Act on the ground that the shrotriem was a personal grant in favour of respondent 5 and that the petitioner had no claim to it by right of birth or at any time till after his father's death. Even so the learned District Judge did not investigate whether the petitioner was a person owning a saleable interest in any agricultural or horticultural land. On the other question namely, the agreement of sale pleaded by respondent 1, the learned Judge was of the view that the enquiry under Section 19 -A does not contemplate an enquiry whether the amount due under the mortgage had been settled by sale or agreement of sale and that it was a matter which would have to be tried in separate proceedings. He therefore remanded the case to the District Munsif with the direction that he should give a finding as to what would be the amount due when the mortgage debt was scaled down under the Act. As against that order, the present appeal has been filed by the first respondent to the main petition.

(3.) IN ray opinion, therefore, the order of the learned District Munsif was right. The possibility of the mortgage debt reviving on a finding against the alleged agreement of sale cannot make any difference to the rule enunciated above, so long as, according to the creditor's own declaration, the debt has been completely wiped out and there is no subsisting liability on the mortgage. As I stated, in the contingency of the debt getting revived, there will be practically nothing left under the mortgage, and, even otherwise, when a finding is given against the alleged agreement of sale and the debt gets revived, it will be open to the petitioner to then ask for the scaling down of the debt under the provisions of the Act. For the present, it must be held that his petition is not maintainable.