Komalambal v. Neelavathi Ammal — 1986 DIGILAW 497 (MAD)

Judgment :- SENGOTTUVELAN, J. :— 1. (Pursuant to an order of reference dated 29th October 1986 made by Kader, J. this petition came up before Sengottuvelan and David Annoussamy, JJ. for hearing on 24th November, 1986 when the Court delivered following Judgment,): 1. On coming across a conflict of views in the decision of Nainar Sundaram, J. on Lakshmiammal v. Sundaramurthi Chetti 1, and that of Shanmukham, J. in Sara Nisha v. Raju 2, Kader, J. after agreeing with the view expressed by Shanmukham, J., placed the papers before the Honourable the Chief Justice for being referred to a Bench for an authoritative pronouncement for settling the controversy on the question since this is a matter of importance. The said reference is thus before us for rendering an authoritative pronouncement. 2. Facts of the case are briefly as follows: The decree holder in O.S. 761 of 1970 on the file of the Court of the District Munsif of Tiruvannamalai (the respondent in this revision petition) filed E.P. 775 of 1981 in the court below for execution of the decree against the properties of the deceased judgment debtor in the hands of his legal representatives. The legal representatives came forward with a plea that they are debtors within the meaning of Tamil Nadu Act 13 of 1980 and as such, the decree debt stands wiped out. The legal representatives contended that the income from the share of each of them in the properties of the deceased judgment debtor inherited by them will have to be separately assessed and, if so assessed, they are entitled to the benefits under Tamil Nadu Act 13 of 1980. The learned District Munsif took the view that the legal representatives are not entitled to have the income of each of them assessed separately in order to find out whether they are entitled to protection under the Act. The learned District Munsif also found that there is no provision in t he Act to give relief to legal representatives and, factually also, they have not established that each one of them would come within the definition of ‘debtor’ as laid down in Act 13 of 1980. 3. The learned District Munsif also found that there is no provision in t he Act to give relief to legal representatives and, factually also, they have not established that each one of them would come within the definition of ‘debtor’ as laid down in Act 13 of 1980. 3. The legal representatives of the deceased judgment debtor filed the above revision petition and, in the said revision petition, Kader, J., concurred with the view expressed by the learned District Munsif, but at the same time, since he noticed a contrary view expressed by Nainar Sundaram, J., in the case in Lakshmiammal v. Sundaramurthi Chetti 1, the learned Judge felt the necessity for an authoritative pronouncement and hence this reference. 4. The point which is referred to us for an authoritative pronouncement is as follows:— “Whether the legal representatives of a deceased debtor as defined in Tamil Nadu Act XIII of 1980, can be construed as ‘debtors’ who are entitled to the benefits under the above Act?” 5. Nainar Sundaram, J. in the case of Lakshmiammal v. Sundaramurthy Chetti 1, held that there is no scope for limiting the applicability of the provisions of the Act only to the persons who were the original debtors and that if the liability could be fastened on the legal representatives of the original debtor, they could definitely come within the ambit of the Act. This reasoning of Nainar Sundaram, J. is based on the case law under the provisions of the Tamil Nadu Agriculturists Relief Act, 1938 (Tamil Nadu Act IV of 1938), wherein it was held that the Act was not confined to personal liability but also applied to liability of a person by virtue of possession of a property, and that the ‘judgment debtor’ within the meaning of that Act will also include his legal representatives and assigns. Nainar Sundaram, J, also observed that so far as Tamil Nadu Act IV of 1938 is concerned, the meanings attached to ‘debt’ and ‘debtor’ are wide enough to take in even the legal representatives of the original debtor, provided liability is burdened on such legal representatives. 6. We will have to examine whether the above said view can be sustained in view of the provisions contained in the Tamil Nadu Act 13 of 1980. 6. We will have to examine whether the above said view can be sustained in view of the provisions contained in the Tamil Nadu Act 13 of 1980. The Preamble to the said Act states that the Act is intended to provide for the relief of certain indebted persons in the State of Tamil Nadu from the usurious practices of pawnbrokers, money-lenders and other non-institutional sources of credit and to give relief from the debts due to such pawnbrokers, money-lenders and other non-institutional sources of credit. A ‘creditor’ is defined under S.3, clause (b) as follows:— “A ‘creditor’ means a person from or in respect of whom the debtor has borrowed or incurred a debt and includes the heir of such person.” A ‘debt’ is defined under clause (c) as meaning any liability in cash or in kind, whether secured or unsecured and whether decreed or not, but not including arrears of taxes due to the Central Government or a State Government, or a local authority. A ‘debtor’ is defined under clause (d) of S.3, and it means, any person from whom any debt is due and whose annual house hold income does not exceed four thousand and eight hundred rupees, and the proviso to the said clause contains cases where the persons, having certain qualifications are not entitled to the benefit under the Act. 7. The definition of a ‘creditor’ includes the heir of a creditor. But in the definition of a ‘debtor’ there is no such inclusion of the legal representatives of the debtor and the clause, viz., clause (d) simply states, ‘a person from whom any debt is due and whose annual household income does not exceed four thousand and eight hundred rupees’. Taking note of these definitions, we have to construe whether the legal representatives can come within the definition of a ‘debtor’ as defined in S.3(d) of Act 1 3 of 1980. A legal representative cannot be made personally liable for the decree against a deceased judgment debtor. Only the properties of the deceased judgment debtor in the hands of the legal representatives are answerable to the decree debt. And in such a case, a legal representative cannot be said to be a person from whom a debt is due. A legal representative cannot be made personally liable for the decree against a deceased judgment debtor. Only the properties of the deceased judgment debtor in the hands of the legal representatives are answerable to the decree debt. And in such a case, a legal representative cannot be said to be a person from whom a debt is due. Hence when a legal representative cannot be said to be a debtor within the definition, the legal representative cannot be said to be entitled to the benefits of the Act even if his income does not exceed four thousand and eight hundred rupees annually. Shanmukham, J. in the case reported in Sara Nisha v. Raju 1, held that the legal representatives of a debtor or a mortgagor is not entitled to the benefits of Tamil Nadu Debt Relief Act (38 of 1972). The reasoning is that the said Act is intended to provide relief to certain indebted persons in the State of Tamil Nadu. The learned Judge also took note of the fact that in the case before him, the heirs of the deceased mortgagor were Mohammedans and were governed by the Mohammedan Law and what they inherited was the residue of the estate of the deceased, that is, his whole estate less his liability and that the liability was therefore that of the deceased, but not that of his heirs. Hence he held that if the debtor himself could not claim any relief under any of the Debt Relief Acts, his heirs could have no better claim than the deceased himself had. He further held that the heirs, in the above circumstances, could hardly be called debtors, for, they were bound to discharge the debt of the deceased, not personally, but out of the respective shares in their respective hands. 8. V. Ramaswami, J., in Pattammal and others v. Ponnusami Udayar 2, concurred with the view expressed by Shanmukham, J. in Sara Nisha v. Raju 1. 9. 8. V. Ramaswami, J., in Pattammal and others v. Ponnusami Udayar 2, concurred with the view expressed by Shanmukham, J. in Sara Nisha v. Raju 1. 9. Considering the definition of ‘debtor’ in Tamil Nadu Act 13 of 1980 and the purpose of the Act, and also in view of the fact that the legal representatives of deceased debtor are not personally liable for the decree debt, we have to hold that the legal representatives cannot be brought within the definition of ‘debtor’ as defined in Tamil Nadu Act 13 of 1980 and the decree debt also cannot be brought within the definition of ‘debt’ payable by the legal representatives. In this view of the matter, we ho ld that the pronouncement of Nainar Sundaram, J., in Lakshmiammal v. Sundaramurthi Chetti 3, is not a proper interpretation of the provisions contained in Tamil Nadu Act 13 of 1980. We agree with the view expressed by Shanmukham, J., and Kader, J., as well as the view of V. Ramaswami, J., and hold that the legal representatives of a deceased judgment debtor are not entitled to claim the benefits of Tamil Nadu Act 13 of 1980 on the ground that they are qualified with reference to their income to get the benefits under the said Act. We answer the reference accordingly. (After the decision of the Division Bench, this petition came up before this Court (Mrs. Padmini Jesudurai, J.) for final disposal and the Court made following Order)--12-1986. 1. The present revision by the legal representatives of the original judgment debtor is directed against the order passed by the Executing Court holding them not entitled to the benefits of the Tamil Nadu Act 13 of 1980, hereinafter referred to as the Act. 2. The respondent herein obtained a decree against the father of the petitioners and took out execution proceedings for sale of the property already attached. At that stage, the original judgment debtor died and the present petitioners were impleaded as his legal representatives. The petitioners resisted the execution proceedings, claiming benefits under the Act, in that each of their income and assets inherited by them separately would entitle each of them to the benefits of the Act. At that stage, the original judgment debtor died and the present petitioners were impleaded as his legal representatives. The petitioners resisted the execution proceedings, claiming benefits under the Act, in that each of their income and assets inherited by them separately would entitle each of them to the benefits of the Act. The executing Court rejected the contention holding that the question to be decided was whether the original debtor would be entitled to the benefits of the Act and the question would not revolve as to whether his legal representatives individually were entitled to the benefits of the Act. The present revision is directed against the said order of the executing court. 3. The only point that had been seriously canvassed in the grounds of revision is whether the petitioners, who are the legal representatives of the original judgment debtor would individually claim the benefits under the Act. 4. When the matter came up before Kader, J. the learned Judge in view of the conflicting decisions of this Court on the above question, referred the same for decision by a larger Bench and the reference came up before a Bench consisting of Sengottuvelan, J. and David Annoussamy, J. which held that the legal representatives of a deceased judgment debtor could not be construed as ‘debtors’ under the Act and could not claim any benefits thereunder. In view of the pronouncement of the Division Bench, the contention of the petitioners has therefore, to be rejected. No other point was seriously canvassed in this revision. Hence this revision fails and is dismissed. No costs.