AI Structured Summary
Not yet generated for this judgment
Judgment
Subba Rao, C.J.
1.Pursuant to an order of the Division Bench of the Madras High Court calling for a finding on the question whether the 2nd Defendant was paying quit rent of more than Rs. 100 to the Government, the learned District Judge submitted a finding holding that the 2nd Defendant was paying a sum exceeding Rs. 100 as quit rent on 21st April, 1944. Mr. Parthasarathi, learned Counsel for the Appellants argued that the said finding is not supported by the evidence.
To appreciate the evidence, some facts may be stated: Dosari Agraharam, with which we are now concerned, was originally granted by Palakonda Zamindar to one Budarayavalasa Rarna-bhadra Patrudu. In the beginning of the 19th century, the zamindar. acquired by purchase the inam rights. He again granted the same to the father of the present holder under Exhibit P-34 dated 21st December, 1809. It is recited in that document that, after deducting the lands comprised as Deva, Brahmana and Mirasi Manyams, the rest of the village had been completely separated and settled as Ekaboga Agraharam in favour of Vasantarao Bayanna Pantulu. In the grant the kattubadis payable on the inam were included.
This document therefore shows that the entire lands excluding the Deva, Brahmana and Mirasi Manyams but including the kattubadi payable thereon was granted to Vasantha Rao. Exhibit P-6 the gudikattu account prepared for fasli 1254 shows that the grantee was collecting a sum of Rs. 41 as kattubadi from the minor inamdars. Exhibit P-12 dated 11th February, 1873, the sale deed shows that kattubadi of Rs. 41 was part of the income from Dosari Agraharam. With this background if the inam register Exhibit P-5 is scrutinised, the quit rent payable on Dosari Agraharam can easily be ascertained.
The inamdars at the time of Exhibit P-5 were the predecessors in title of the present 1st Petitioner and 18 Ors. . Under that document, one title deed T. D. No. 2 66 was directed to be issued to them. Column 9 shows that the total jodi payable on the inam. was Rs. 40. In column 21 the following recitals are found: "To be confirmed to the present holders in one title deed. They agreed to pay y8th quit rent Rs. 124-8-0. Combined quit rent Rs. 164-8-0. The total cist shown in the document is Rs. 1,075-2-0. After deducting the quit rent of Rs. 40 payable by the inamdar from that amount, y8th of the balance was fixed as quit rent payable by Vasantha Rao, the predecessor-in-interest of the 1st Petitioner.
To that figure, Rs. 40 was added and a sum of Rs. 164-8-0 was fixed as the combined quit rent payable by the inamdars. The previous documents already referred to show that the quit rent payable by the minor inamdars was also included in the grant. It is, therefore, clear that under the inam register Vasantha Rao was made liable to pay Rs. 164-8-0 though, in his return, he would be entitled to recover Rs. 40 the jodi payable by the minor inamdars. Even if the liability to pay Rs. 164-8-0 was joint, the liability of Vasantha Rao to pay Its. 124-8-0 is clear beyond any doubt. In Exhibit P-38, the B register of Dosari Agraharam for the year 1921, the quit rent payable in respect of patta No 2466 is shown as Rs. 163.
In Exhibit P-12 the sale deed of the year 1873 executed by Vasantha Rao and Ors. in favour of Buchi Sundararao and his brOrs. , the Petitioners'' predecessor-in-title, it is stated that the kattubadi was Rs. 40, quit rent Rs. 129 and local cess Rs. 24. The mortgage deed Exhibit R-4 of the year 1911 executed by the ancestors of the petitioners in respect of Dosari Agraharam shows that the kattubadi was Rs. 81, quit rent Rs. 129 and land cess Rs. 44-12-6. So too, Exhibit R-5, the mortgage deed executed the 1st Petitioner''s mother and Ors. in 1931, indicates that a sum of Rs. 300 was being paid towards quit rent and land cess to Government. Exhibit R-7, the No. 13 account of Dosari Ramunaiduvalasa for fasli 1353, proves that a sum of Rs. 364-15-11 was paid to the Government towards land revenue and cesses. It is, therefore, clear from the aforesaid evidence that the 1st Petitioner was liable to pay a sum exceeding Rs. 100. The finding of the learned Judge is, therefore, correct. It follows that the debt of the 1st Petitioner (2nd Defendant) is not liable to be scaled down.
The appeal (A. A. O. No. 560 of 1947) fails and is dismissed with costs.
The memorandum of objections is not pressed. It is dismissed with costs.
This Civil Miscellaneous Appeal A. A.O. No. 396 of 1948 raises a question under the Madras Agriculturists'' Relief Act. The judgment-debtors in O. S. No. 36 of 1930 on the file of the Subordinate Judge''s Court, Visakhapatnam, executed two promissory notes, one dated 14th October, 1911, for Rs. 1,000 and the other in the year 1912 for a sum of Rs. 700 in favour of the Respondents'' father one Venkatarao. Various payments were made under the promissory note of 1912 and, for the balance, it was renewed for Rs. 700 on 30th July, 1920.
On 29th November, 1920, for the balance of the amount due under the said two promissory notes and for the interest due to the creditor on Anr. mortgage deed dated 14th October, 1911 executed by the same debtors in his favour and for a small amount of cash, a fresh promissory note was executed for a sum of Rs. 4,431 in favour of the creditor. On 13th August, 1923, Venkatarao assigned the said promissory note to his son Kothanda Rao. It does not appear whether the assignment was for consideration or for collection. It is also not clear whether the assignment was made for his personal benefit or for collecting the amounts on behalf of the family.
After the assignment, the promissory note was again renewed in favour of Kodanda Rao on 24th November, 1923, for a sum of Rs. 5,624. On 25th November, 1925, the amount due under the latest '' promissory note was split up and two promissory notes were executed in favour of the same creditor for Rs. 2,001-1-7 and Rs. 4,912-13-0 respectively. An other promissory note was executed on 30th April, 1928, for the interest due on the aforesaid two promissory notes. On 13th May, 1930, the suit promissory note was executed for the amount due under the two promissory notes dated 25th November, 1925 and 30th April, 1928.
The suit was filed for the recovery of the amount due under the promissory note dated 13th May, 1930, with interest payable thereunder. The learned District Judge scaled down the decree under the provisions of the Madras Agriculturists'' Relief Act. The judgment-debtors, who filed the application for scaling down the decree, preferred the! above appeal.
The learned Counsel appearing for the Appellants contended that the learned District Judge was wrong in not excluding the sum of Rs. 2,882-2-0 the interest due under the mortgage deed dated 14th October, 1911, on the ground that the promisee under the promissory note D was different from the creditor under the mortgage deed, dated 14th October, 1911. He contends that that! assumption was wrong and that, as a matter of fact, the creditor under the mortgage deed is the same as the creditor under the promissory note.
The learned District Judge in paragraph 3 of his judgment stated:
One of the main questions now before me is as regards the sum of Rs. 2,882-2-0 included in D being the interest on a mortgage, dated 14th October, 1911. It is not disputed that the mortgage was1 in favour of the father & the promissory note was in favour of the son. According to (he decree-holder, it is a separate debt."
But a perusal of the mortgage deed and the promissory note shows that both of them were executed in favour of Venkatarao, son of Ananta Rao. The assumption, therefore is obviously wrong. If so, the said amount being admittedly interest payable by the debtors to the creditor, is wiped out under the provisions of the Act.
It is then contended by the learned Counsel for the Respondent that the promissory'' note Exhibit P-44 was assigned by Ananta Rao in favour of his son Kothanda Rao and that the subsequent promissory notes were executed or renewed in his favour and therefore the assignee is not the same creditor as the creditor under the promissory note, dated 29th November, 1920. This argument was not raised in the Court below. If it was raised, the judgment-debtors might have established that the creditors both under the promissory note, dated 29th November, 1920 & under the later promissory notes, though eo nomine different, in fact represent the family. We cannot also hold that the fact that the promisee under the promissory note, dated 24th November, 1923, is the assignee from the promisee under the earlier documents makes any difference in the application of the provisions of the Act. The governing provision is Section 8, Sub-Section 4, Explanation III of Act IV of 1938. Explanation III reads:
Where a debt has been renewed or included in a fresh document executed before or niter the commencement of this Act (whether by the same den tor or his heirs, legal representatives or assigns or by any other person acting on his behalf or in his interest and whether in favour of the same creditor or of any other person acting on his behalf or in his interest) the principal originally advanced together with such sums, if any, as have been subsequently advanced as principal shall alone be treated as the principal .stun repayable under this section.
Under this Explanation, where a debt hasten renewed in favour of the same creditor or of any other person acting on his behalf or in his interests, the debt can be traced to the original principal advanced. It is not established that Kothanda Rao, who took assignment of the promissory note was acting; on his father''s behalf or in his father''s interests when he took a fresh promissory note in renewal of the earlier one. Prima facie, he was acting for himself, and in his own interest and not in the interests of his father. The question, therefore is whether he is the same creditor as under the earlier promissory note within the meaning of Explanation III. To put it differently is an assignee from a creditor the same creditor" within the meaning of the Explanation?
At first sight Explanation HI appears it make a distinction between the case of a debtor and that of a creditor. In the case of a debtor, it expressly applies the same rule to his heirs, legal representatives or assigns. But, in the case of a creditor, those three categories of persons are omitted. It is, therefore, argued that heirs, legal representatives or assigns are not affected by the said Explanation. This argument ignores the definition of the creditor'' in the Act. Section 3 (v) of the Act defines creditor as follows:
Creditor includes his heirs, legal representatives and assigns.
But the Act, though it defines the word "debt" has not given the definition of the word "debtor". In view of the definition of the word "creditor" and because of the non-definition of the word "debtor" in the Act it became necessary for the Legislature, while using the word "creditor" in the Explanation to add the words
"heirs, legal representatives or assigns" in the case of a debtor, for the word "creditor" itself by reason of the definition takes in the other three categories of persons, whereas the use of the word "debtor" may not take in those categories.
It is then contended that the adjective "same" qualifying the word "creditor" makes the addition of the words "heirs, legal representatives or assigns" incongruous as, in that event, that adjective must be made to qualify the words
"heirs, legal representatives and assigns" also. When the word "creditor" is given an inclusive meaning, a creditor''s heirs, legal representatives or assigns are also creditors. If so read, whether a person is the original creditor or his legal representatives or .assigns, he is "the same creditor" within the meaning of the Explanation. Further, without doing violence to the language used in the Explanation, the words ''the same creditor'' by reason of the definition may be read as "the same creditor or his heirs, legal representatives or assigns".
We cannot discover any principle of distinction between a creditor and his assignee". The learned Counsel for the Respondents suggested that the Legislature might have intended to protect assignees, who would have parted with valuable consideration for taking an assignment; of a debt but the same consideration would apply to the case of a original creditor who paid valuable consideration to the debtor. From the standpoint of the debtor, it cannot make any difference whether the creditor assigned his rights in the debt or not. But the said argument obviously cannot have any application in the case of heir or legal representative.
They are not persons who parted with valuable consideration and they cannot be in a more favoured position than the original creditor. It is, therefore, reasonable to assume that the words "heirs, legal representatives or assigns" were not added by the Legislature as the definition of the word creditor itself takes in those categories of persons. If the contention of the Respondents is accepted, there will be a clear lacuna in the Act, When a Legislative provision can reasonably be construed without bringing about any such lacuna, it is the duty of the Court to do so.
Reliance was placed on a judgment of one of us in Hanumayya v. Nayudamma 64 Mad LW 836 the following observations are found:
But in amending Explanation III and in introducing Explanation IV, they have omitted an obvious case. Under Explanation IV though a dent has been split up and allotted to the shares of the different members of erstwhile joint family it can be traced back to its origin. But if a debt has not been split up so as to come within the provisions of Explanation IV but only has been assigned1 to one of the brOrs. at the time of the partition, such a debt is not covered by Explanation III. Under Explanation III the debt should be renewed in favour of a creditor or of any other person acting on his behalf or in his interests. Can it. be said that a promissory note, executed in favour of a person who separated himself from the rest of the family, was executed in favour of the same creditor that is the family or in favour of a person acting on behalf of the family or in the interests of the family. Such a person does not come under any one of the three categories of persons particularised in Explanation III. I have already stated that Explanation IV in tonus does pot apply to such a case. The result is unfortunate. There is a clear lacuna in the amendment carried out by Act XXIV of 1950.
It will be seen from the judgment that it was not argued in that case that; though the debt was not split up to attract the provisions of Explanation III, the divided brother, in whose favour the entire debt was assigned, would be a. creditor within the meaning of the definition under the Act. It was argued that his case was covered by the words "or any other person acting on his behalf or in his interest" but it was not accepted by the Court. It is true that, on the facts of that case, the decision would have been otherwise if it was sought to bring in the assignee under the inclusive meaning if the word "creditor" defined in the Act. We would take this opportunity to state that that decision was not intended to lay down that an assignee of a creditor would not be a creditor within the meaning of the definition.
In the result, the appeal is allowed with costs. The parties are directed to file a calculation memo in a week. (Rest of the judgment containing final order is not material for purposes of this report).