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Judgment
These three second appeals have been directed against the Judgments and decrees passed on 30-11-1991 in AS No.SO of 1983, AS No.78 of 1983 and AS No.79 of 1983 respectively on the file of the Sub-Court, Chodavaram, confirming the common Judgment and decrees dated 31-8-1983 passed in OS No.194 of 1979, OS No. 195 of 1979 and OS No.234 of 1979 respectively on the file of the District Munsif Court, Narsipatnam in Visakhapatnam District.
The appellants in all the appeals are the defendants 4 to 7 and the legal representatives of the deceased third defendant and the respondents herein are the plaintiffs and the defendants 1 and 2 in the said three suits.
The relevant facts resulting in filing of these appeals are as under:
(i) One Lekkala Achayyamma borrowed a sum of Rs.6,000/- from one Rongala Appalanaidu (plaintiff in OS No. 194 of 1979) and executed a pro-note dated 14-6-1976. She also borrowed a sum of Rs.5,200/- from Paghigolla Verayya (plaintiff in OS No. 195 of 1979) and executed a pro-note dated 31-5-1976 in his favour. She also borrowed a sum of Rs.6,000/- for Tatikonda Rajulamma (plaintiff in OS No.234 of 1979) and executed a pro-note in her favour on 29-5-1976. Without discharging those pro-notes debts the said Achayyamma died. Subsequent to her death, the creditors of''Achayyamma filed the said suits for realization of the amounts from the estate of Achayyamma which is in the hands of the defendants 1 and 2 alleging that they are her legal representatives.
(ii) The defendants 1 and 2 disputed the borrowings ofthe amounts and also execution of the suit pro-notes. They also further pleaded that Achayyamma executed a Will deed on 10-8-1977 in favour of the defendant 3 to 7 and that they are the necessary parties to the proceedings. Hence, the plaintiffs subsequently added legatees-as defendants 3 to 7 in all the suits. The defendants 3 to 7 also disputed the alleged borrowings of the amounts and execution of the suit pro-notes by late Achayyamma. They have also taken up the plea that they are small farmers and as such they are entitled to the benefits under the A.P. Act 7 of 1977.
(iii) The trial Court settled the following common issues in all the suites :
(i) Whether the suit pro-note is true, valid and binding on the defendants ''?
(ii) Whether the deceased Achayyamma died intestate?
(iii) Who among the defendants are liable for the suit amounts ?
(iv) To what relief?
As the issues involved in all the three suits are common and as the defendants are common, the trial Court clubbed all the three suits and tried together and the evidence was recorded in OS No. 194 of 1979 and all the three suits were disposed of by a common Judgment dated 31-8-1983. During the course of trial, PWs.l to 5 were examined and Exs.Al to AI2 were marked on behalf of the plaintiffs. DWs.l to 3 were examined and Ex.Bl was marked on behalf of the defendants. On a consideration of the oral and documentary evidence on record, the trial Court held in all the suits on issue No.l that the suit pro-notes are true, valid and binding on the defendants; on issue No.2 that Achayyamma did not die intestate but she executed a Will deed, Ex.Bl, dated 10-8-1977 in favour of the defendants 3 to 7; and on issue No.3 that as all the defendants are in possession and enjoyment of the estate of the deceased Achayyamma and they are liable to discharge the suit debts proportionately. Consequently, on issue No.4 all the three suits were decreed with costs against all the defendants as prayed for with respect to the extent of the assets which are in the hands of the defendants.
(iv) Aggrieved by the common judgment and decrees of the trial Court in all the three suits, the defendants 3 to 7 preferred the appeals AS No.80 of 1983, AS No.78 of 1983 and AS No.79 of 1983. Before the lower appellate Court, it appears that the defendants also raised the plea that the suits are barred by limitation. After hearing both sides, the lower appellate Court dismissed all the three appeals on 23-9-1985. As regards to the plea of limitation, the lower appellate Court observed that such a plea was not tenable.
(v) Aggrieved of that judgments and decrees of the lower appellate Court, the defendants 3 to 7 preferred the second appeals SA No.281 of 1986, SANo.204 of 1986 and SA No.268 of 1986 to this Court and this Court by its Judgments dated 26-7-1988 allowed all the three appeals on the ground that the plea of limitation raised by the defendants 3 to 7 though for the first time in the lower appellate Court, it should have been gone into by the lower appellate Court as such a plea is being one of law and therefore set aside the Judgments and decrees of the lower appellate Court and remitted the matter to the lower appellate Court i.e., Subordinate Judge, Chodavaram, for fresh disposal according to law.
(vi) After remand, the lower appellate Court framed the following additional issues on the application filed by the appellants :
(i) Whether the defendants 3 to 7 are entitled to the benefits of A.P. Act 7 of 1977 and whether the suit debt is abated under the provisions of that Act?
(ii) Whether the suit debt is in time and whether the suit is barred by law of limitation against the defendants 3 to 7?
On re-appraisal of both the oral and documentary evidence on record, the lower appellate Court held on additional issue No.l that the defendants 3 to 7 are not entitled for the benefits of A.P. Act 7 of 1977 and as such the suit debt is not abated under the provisions of the said Act; and on additional issue No.2 that the suit debt is not barred by limitation. The findings of the trial Court on other issues have also been confirmed. Consequently, the lower appellate Court dismissed all the three appeals with costs by separate Judgments dated 30-11-1991.
(vii) Aggrieved by those judgments and decrees in all the three appeals, the defendants 4 to 7 and the legal representatives of the deceased third defendant have come up with these second appeals.
Heard the learned Counsel on either side. The learned Counsel for the appellants took me through the Judgments under appeals and also that of the trial Court and the evidence on record.
The substantial questions of law involved in these appeals are :
(i) Whether the suit debts are barred by limitation against the defendants 3 to 7?
(ii) Whether the suit debts are abated under the provisions of A.P. Act 7 of 1977 and whether the defendants 3 to 7 are entitled to the benefits of A.P. Act 7 of 1977?
Question No. 1 : Originally the defendants 3 to 7 were not added as parties to the suites but they have been added as per the orders in IAs.Nos.362, 363, 364 of 1980 in all the three suits on coming to know that they are the legatees under the Will deed, Ex.Bl, dated 10-8-1977 executed by late Achayyamma in their favour. Thus, by the date the defendants 3 to 7 were added as defendants to the proceedings, the period of limitation of three years was already over. Hence, the plea that all the three suits filed against them are barred by limitation. It is not disputed before the expiry of period of limitation of three years, all the three suits have been filed into Court against the defendants 1 and 2 alleging that they are the legal representatives of the deceased-executant Achayyamma. These defendants 3 to 7 were added subsequently. It is well settled that legal representatives can be impleaded even after expiry of the period of limitation for filing the suit if the omission to implead them in time was due to bona fide mistake. The lower appellate Court relying on the decision of the Supreme Court in N.K. Mohammad Sulaiman Vs. N.C. Mohammad Ismail and Others, , and also of our High Court in Rasetty Rajyalakshmamma and Others Vs. Rajamuru Kannaiah, , and in Ch. Narasimharaju v. Sukki Reddy 1985 (2) APLJ 54, rightly held that the suits against the defendants 3 to 7 arc not barred by time as the plaintiffs have already initiated the proceedings to recover the amounts due from late Achayyamma against her assets which are in the hands of her legal representatives. The learned Counsel for the appellants also fairly submits that he is not pressing this point of limitation in view of the above said decisions of this Court and that of the Supreme Court. Therefore, I do not find any reason to interfere with the said finding of the lower appellate Court that all the suits are not barred by limitation.
Question No.2 : The learned Counsel for the appellants contends that the defendants 3 to 7 are the legatees under the Will deed executed by the original borrower late Achayyamma and as legal representatives of the original debtor, the defendants 3 to 7 are entitled for the benefits under A.P. Act 7 of 1977 as they are small farmers as defined in that Act and as such the suit debts should be deemed to have been abated under the provisions of the said Act. The learned Counsel for the plaintiffs, on the other hand, contended that the definition of ''debtor'' u/s 3(j) of the Act does not take in legal heirs or legal representatives of the original debtor and that the defendants 3 to 7 being the legatees under the Will deed executed by the original debtor late Achayamma are not entitled to claim relief u/s 4(1) of the Act. The learned Counsel for the plaintiffs further contended that while the Act defined ''creditor'' as including the heirs, legal representatives and assignees of a person from whom or in respect of whom the debtor has borrowed or incurred a debt, the definition of ''debtor'' does not include his heirs, legal representatives and assignees and, therefore, the legal heirs of a debtor who had borrowed the debt would not be entitled to claim the benefits under the provisions of the Act. It is further contended by the learned Counsel for the plaintiffs that the defendants 3 to 7 are the legatees under the Will deed dated 10-8-1977 and as such even as legal representatives of the original borrower late Achamma, they do not become the debtors on the date of the commencement of the Act i.e., 29-12-1976. As such, they are not entitled to claim the benefit of the provisions under the Act.
It is not disputed that the defendants 3 to 7 are the legatees under the Will deed, Ex.B1 dated 10-8-1977 executed by late Achayamma in their favour. By virtue of this Will deed, they became the legal representatives of the original borrower late Achayamma. A Division Bench of this Court in Mohd. Abdul Azeez v. Smt. Bolla Bomawa and others 1982 (1) APLJ 379, after elaborate discussion and considering catena of decisions earlier delivered by this Court categorically held that the expression ''debtor'' in the Act not only takes in a person who has originally borrowed the debt but also his legal representatives who have incurred the debt before the commencement of the Act. In para 19 the Division Bench held thus :
"Therefore, reading of the definitions of ''creditor'', ''debtor'' together it is clear that not only a debtor who has originally borrowed the debt but also a person who incurred the liability or the debt, will be entitled to claim relief provided he falls within the definition of ''debtor'' at the commencement of the Act. Therefore, in order to claim the benefit u/s 4(1) of the Act, the applicant for relief must establish that he is an agricultural labour or a rural artisan or a small farmer at the commencement of the Act and that the debt was subsisting at the commencement of the Act."
It is further held in this decision that the said legal representatives of the original debtor must also establish that they fall within the definition of ''debtor'' at the commencement of the Act. In view of this decision of the Division Bench, the contention of the learned Counsel for the plaintiffs that the defendants 3 to 7 who are the legal representatives of the original borrower Achayamma by virtue of the Will deed are not entitled to the benefits under the Act cannot be accepted. But, they should establish for claiming benefit under the Act that they fall within the definition of ''debtor'' at the commencement of the Act.
Act 7 of 1977 was enacted to provide relief from indebtedness to agricultural labourers, rural artisans and small fanners in the State of Andhra Pradesh and the matters connected therein and it came into force on 29-12-1976. This Act 7 of 1977 covers the debts which were in existence on the date on which the said Act came into force. Section 4(1) provides that "notwithstanding anything in the various Acts mentioned in that Section or any other law for the time being in force or any contract or other instruments having the force of law and save as otherwise provided in this Act, with effect on and from the commencement of the Act, every debt including interest, if any, owing to any creditor by any agricultural labourer, a rural artisan or a small farmer shall be deemed to be wholly discharged". u/s 4(2)(b) "all suits or proceedings including the appeals, revisions, attachment or execution proceedings pending at the commencement of this Act against any debtor for recovery of any such debt including interest, if any, shall abate". Proviso to this Section relates to the exceptions for the application of this Act. Section 3(h) of the Act defines the ''creditor'' and Section 3(i) defines the ''debt'' and Section 3(j) defines ''debtor'' as an agricultural labourer, a rural artisan or a small farmer who has borrowed or incurred any debt before the commencement of the Act. Section 3(t) contains the definition of ''small fanner''.
The following ingredients have to be established u/s 4(1) of the Act for claiming relief under the Act:
(i) That the debt including any liability owing to a creditor was subsisting at the commencement of the Act;
(ii) That the debtor must have borrowed or incurred the debt before the commencement of the Act; and
(iii) That the said debtor be an agricultural labourer, a rural artisan or a small farmer at the commencement of the Act.
On an analysis of the definition of ''small farmer'' contained in Section 3(t) of the Act the larger Bench of this Court in P. Masthanayya v. Ch. Veerayya and others, 1987 (1) APLJ 203, held that for being a ''small farmer'', a person must satisfy the following requirements:
(i) His principal means of livelihood should be income derived from agricultural land.
(ii) He must hold and personally cultivate agricultural land not exceeding the extent specified, or he must have cultivated it as a tenant or a share- cropper or as a mortgagee, with possession (usufructuary mortgagee) agricultural lands not exceeding the limit specified.
(iii) If he does not belong to any of the Scheduled Tribes, the land which he holds and cultivates, or cultivates as a tenant, or a share-cropper or as a mortgagee with possession should not exceed one hectare if it is wet or two hectares if it is dry;
(iv) If such a person is a member of Scheduled Tribe, the agricultural lands which he holds and personally cultivates or which he cultivated as a tenant or as a share-cropper or as a mortgagee with possession should not exceed two hectares if it is wet or four hectares if it is dry; and
(v) In either event, the annual house-hold income of such person other than from agriculture, should not exceed Rs.1,200/- in any two years within three years immediately preceding to the commencement of the Act.
The above analysis shows that four categories of persons can be called small farmers, viz.,
(i) Person who holds and personally cultivates agricultural lands;
(ii) Person who does not hold an agricultural land but merely cultivates it as a tenant;
(iii) Person who does not hold agricultural land but merely cultivates it as a sharecropper; and
(iv) Person who does not hold (own) agricultural land, but cultivates it as a mortgagee with possession -provided all of them are within the definition."
The first two ingredients are satisfied in this case. The suit claim in OS No. 194 of 1979 is based on the pro- note dated 14-6-1976 executed by late Achayamma for Rs.6,000/-. The suit claim in OS No. 195 of 1979 is based on the pro-note dated 31-5-1976 executed by late Achayamma and the suit claim in OS No.234 of 1979 is based on the pro-note dated 29-5-1976 executed for Rs.6,000/- by late Achayamma. Admittedly, Act 7 of 1977 came into force with effect from 29-12-1976. Therefore, it is obvious that the debts in all the suits were incurred before the commencement of the Act and they were also subsisting at the commencement of the Act. In view of the fact that the original borrower Achayamma executed the Will deed on 10-8-1977 in favour of the defendants 3 to 7 she was very much alive by the date of the commencement of the Act i.e., 29-12-1976. It is not the case of the defendants 3 to 7 that the original borrower Achayanma was entitled for the benefit of the Act and that the suit debts were discharged u/s 4(1) of the Act. On the other hand, it is their contention that as her legal representatives they are entitled for the benefits under the Act as they are small farmers. Admittedly, by the date of the commencement of the Act i.e., 29-12-1976 the original borrower Achayamma was alive and as such the defendants 3 to 7 would not come under the definition of ''debtors'' as by the date of commencement of the Act they did not incur the debt of late Achayamma. They incurred the debt only after the execution of the Will deed in their favour and as they succeeded to her estate by virtue of that Will deed. Therefore, the defendants 3 to 7 do not come under the definition of ''debtors'' under the Act as they have not incurred the debt by the date of the commencement of the Act. It may be a fact that they were added as parties to the suit for realisation of the debts due from the original borrower Achayamma. It is because the assets of late Achayamma are in the hands of these defendants. There is no personal liability on the part of the defendants 3 to 7 and their liability co-extends with the assets of late Achayamma which are in their hands. Therefore, the defendants 3 to 7 are not entitled for the benefits under Act 7 of 1977.
The next aspect to be considered is whether late Achayamma who was the original borrower comes under the definition of ''small farmer'' so as to entitle to the benefits under the Act ? DWs.l to 3 examined on behalf of the defendants 3 to 7 did not throw any light on this aspect. As observed by the lower appellate Court, there is no whisper before the trial Court in the evidence of DWs.l to 3 on this aspect. Therefore, we have to look into the averments in the Will deed, Ex.Bl, with regard to the extent of land possessed by the original borrower late Achayamma. As seen from Ex.B1 late Achayamma bequeathed both movable and immovable property possessed by her in favour of defendants 3 to 7 and two of her step-daughters. Under this document she bequeathed Ac.5.00 of land to her two stepdaughters and Ac.7.00 of wet land and Ac.4.50 cents of dry land in favour of the defendants 3 to 7. Therefore, by the date of execution of Ex.Bl she was in possession of Ac.7.00 of wet land and Ac.9.50 cents of dry land which is beyond the limits specified under the Act to come within the definition of small farmer who is entitled for the benefits under the Act. Therefore, I have no hesitation to conclude that the original borrower late Achayamma was not a small farmer and as such she was not entitled for the benefits u/s 4(1) of the Act. Thus, the suit debts are not abated u/s 4 of the Act 7 of 1977.
In the result, I do not find any merits in all of the three appeals and they are liable to be dismissed. Accordingly, all the three appeals are dismissed. But, in the circumstances without costs.