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2006 DIGILAW 15 (MAD)

Ramachandran & Others v. Alamelammal

2006-01-04

K.MOHAN RAM

body2006
Judgment :- 1. The defendants in O.S. No. 176 of 1987 on the file of District Munsif Court, Hosur are the appellants in the above Second Appeal. Though, they succeeded before the Trial Court, they were unsuccessful before the lower Appellate Court. Being aggrieved by the judgment and decree dated 31.3.1993 passed in A.S. No. 13 of 1991 on the file of the Sub-Court, Krishnagiri, the defendants have filed the above Second Appeal. 2. For the sake of convenience, the parties are referred to as they are arrayed in the suit. 3. The case of the plaintiff as pleaded in the plaint is that the first defendant borrowed a sum of Rs.2,000 and executed a mortgage deed dated 17.1.1973 in her favour and the time for redemption fixed in the mortgage deed was three months and the loan was obtained for discharge of the family debts. In spite of repeated demands, the first defendant did not repay the loan amount, but instead sold away the mortgaged property to defendants 2 and 3. It was the further case of the plaintiff that the defendants are not small farmers and they are not entitled for any relief under the Debt Relief Acts. Hence the plaintiff filed a suit for a preliminary decree on the basis of the mortgage executed by the first defendant. 4. The first defendant filed a written statement, which was adopted by defendants 2 and 3. The defendants contested the suit inter alia contending that the first defendant did not execute the mortgage deed; the father of the first-defendant died long back and thereafter the mother of the first defendant and his younger brother, Doorvasan and the first defendant constituted a Hindu Joint Family and the joint family properties stand in the name of the mother of the first defendant. The joint family has no other property except the suit property. There is no other property in the name of the first defendant. The first defendant could not execute the mortgage and even if such a mortgage had been executed, it is not binding on them. Defendants 2 and 3 have purchased the suit property from the mother of the first defendant under a sale deed and in that the first defendant and Doorvasan have also signed. The first defendant could not execute the mortgage and even if such a mortgage had been executed, it is not binding on them. Defendants 2 and 3 have purchased the suit property from the mother of the first defendant under a sale deed and in that the first defendant and Doorvasan have also signed. The first defendant is a. small farmer and he is doing coolie work and his annual income does not exceed Rs.2,400 and hence they are entitled for the benefits available under the Debt Relief Acts and on the said pleadings, they prayed for the dismissal of the suit. 5. During trial, the plaintiff got himself examined as P.W.1 besides examining four other witnesses and marked Exs.A-1 to A-3. The defendants examined the first defendant as D.W.1 and another witnesses Balasundaram as D.W.2 and they did not produce any documents. The Trial Court framed the following issues, namely: (i) Whether the first defendant executed the mortgage deed? (ii) Whether the suit property belonged to the first defendant? (iii) Whether defendants 2 and 3 purchased the suit properties bonafidely? (iv) Whether the first defendant is entitled for the benefits under the Tamil Nadu Debt Relief Act? (v) To what relief the plaintiff is entitled to? 6. The Trial Court on a consideration of the oral and documentary evidence adduced, recorded the following findings: The first defendant had executed the mortgage deed and he was the owner of the suit property and defendants 2 and 3 could not be considered as bona fide purchasers. After recording the said finding, the Trial Court came to the conclusion that the first defendant is entitled to the benefits under the Tamil Nadu Debt Relief Acts and on that ground dismissed the suit. 7. After recording the said finding, the Trial Court came to the conclusion that the first defendant is entitled to the benefits under the Tamil Nadu Debt Relief Acts and on that ground dismissed the suit. 7. The lower Appellate Court framed the following point for consideration, namely: "I. Whether the judgment of the Trial Court dismissing the suit holding that the first defendant is entitled to the benefits under the Debt Relief Acts is correct?” The lower Appellate Court on a consideration of the oral and documentary evidence on record and the judgment of the Trial Court and the relevant provisions of the Tamil Nadu Debt Relief Act (Act 31 of 1976) came to the conclusion that the first defendant is not entitled to the benefits under the provisions of the Tamil Nadu Act 31 of 1976, as he will not come under the definition of "small farmer” and allowed the Appeal. 8. Aggrieved by the said judgment of the lower Appellate Court, the defendants have filed the above Appeal. While admitting the Second Appeal, the following substantial question of law has been framed: "When it was not in dispute that the first defendant was the owner of the land measuring 2 acres the value of which is Rs.4,000 and that he was not owning any other property, whether the first defendant is not a small farmer, who is entitled to the benefits of the Tamil Nadu Debt Relief Act 31 of 1976?” 9. Learned counsel for the defendants submitted that the first defendant is a small farmer within the meaning of Section 3(1) of the Tamil Nadu Debt Relief Act (Act 31 of 1976) and therefore he is entitled to the benefits of the Act; the lower Appellate Court failed to see that the materials on record clearly establish that the first defendant is a small farmer and since the first defendant was owning an extent of two acres of land worth Rs.4,000 and since he had no other properties, he is entitled to the benefits under the Tamil Nadu Debt Relief Act (Act 31 of 1976). Learned counsel appearing for the defendants, while elaborating the above said submissions, stated that the reason given by the lower Appellate Court for negativing the claim of the defendants is not correct, since the first defendant admittedly comes under the definition 'small farmer' mentioned in the Act as on the date of Ex.A-1, namely, 17.1.1973 and therefore he is entitled to the benefits under the said Act. He further submitted that the sale of the mortgaged land by the first defendant to defendants 2 and 3 on 30.3.1975 will not deprive the first defendant of the benefits available to him under Tamil Nadu Act 31 of 1976. Per contra, learned counsel appearing for the plaintiff submitted that, since the first defendant was admittedly not having any land as on the date of the coming into force of Tamil Nadu Act 31 of 1976, he will not come under the definition 'small farmer' and therefore he is not entitled to any relief under the said Act. 10. I have carefully considered the respective submissions made by the learned counsel appearing on either side. 11. The admitted facts are that, Ex.A-1 is dated 17.1.1973. Though the execution of the mortgage deed is disputed by the defendants, the finding rendered by both the Courts below shows that Ex.A-1, the mortgage deed, was executed by the first defendant, who was the owner of the properties. The suit properties were sold by the first defendant to defendants 2 and 3 under Ex.A-2, sale deed, dated 30.3.1975. The Tamil Nadu Debt Relief Act, 1976 (T.N. Act 31 of 1976) came into force on 29.7.1976. Under Section 3(e) of the said Act, the term "debt" is defined as follows: "'debt' means any liability in cash or in kind, whether secured or unsecured and whether decreed or not but does not include an-ears of tax due to the Central Government or a State Government or a local authority". Under Section 3(e) of the said Act, the term "debt" is defined as follows: "'debt' means any liability in cash or in kind, whether secured or unsecured and whether decreed or not but does not include an-ears of tax due to the Central Government or a State Government or a local authority". The term "Debtor, is defined under Section 3(f) of the Act, as follows: "(i) a landless agricultural labourer; or (ii) a rural artisan; or (iii) a small farmer, who has borrowed or incurred any debt before the commencement of this Act" The term "landless agricultural labouree' is defined under Section 3(i) of the Act as follows: "Landless agricultural labourer means a person who does not hold, whether as owner, tenant or mortgagee with possession or partly in one capacity and partly in another, any agricultural land and whose principal means of ivelihood is manual labour on agricultural land and whose annual household income does not exceed two thousand and four hundred rupees" The term "small farmer" is defined under Section 3(1) of the Act as follows: 64 'small farmer' means a person whose principal means of livelihood is income derived from agricultural land and who holds, whether as owner, tenant, or mortgagee with possession or partly in one capacity and partly in another: (i) not more than two units of land in a case where such person is a member of any of the Scheduled Tribes; and (ii) not more than one unit of land, in any other case." As per Section 4(a) of the Act, "every debt advanced or incurred, before the commencement of this Act (including interest, if any), and payable by the debtor to the creditor shall be deemed to be wholly discharged". Section 4(b) provides that "no Civil Court shall entertain any suit or other proceeding against the 'debtor' for the recovery of any amount of such debt (including interest, if any)". Section 4(f) of the Act says that "every mortgage executed by the debtor in favour of the creditor shall stand redeemed and the mortgaged property shall be released in favour of such debtor. 12. Section 4(f) of the Act says that "every mortgage executed by the debtor in favour of the creditor shall stand redeemed and the mortgaged property shall be released in favour of such debtor. 12. The Trial Court, without properly considering the above said provisions and the provisions contained in Section 6 of the said Act, simply relying upon the evidence of D.W.2, the Village Administrative Officer, that the first defendant sold his properties to defendants 2 and 3 on 30.3.1975 as evidenced by Ex.A-2; he was not having any lands as on the date of commencement of the Act and there is no contra evidence on the side of the plaintiff to show that the first defendant Was having any other land except the suit property, held that the first defendant is a 'small farmer' within the meaning of Tamil Nadu Act 31 of 1976. This finding of the Trial Court, as rightly pointed out by the lower Appellate Court, is not correct and it is contrary to the relevant provisions of the Act. If the first defendant wants to claim the benefits under the Act, then he must prove that he comes within the definition of 'small farmer' as defined in Section 3(1) of the Act. As per Section 3(1), if a person is to be treated as a small farmer, his principal means of livelihood should be income derived from agricultural land and he should hold, whether as owner, tenant, or mortgagee with possession or partly in one capacity and partly in another; not more than two units of land in a case where such person is a member of any of the Scheduled Tribes; and not more than one unit of land, in any other case. In this case, admittedly the first-defendant did not own more than one unit of land and he sold away the land, after mortgaging the same on 17.1.1973, to defendants 2 and 3 by sale deed dated 30.3.1975. Hence, he ceases to be a 'small farmer' on the date of commencement of Tamil Nadu Act 31 of 1976, i.e., on 29.7.1976. As on that date, he was not holding any land. Unless a person holds the land within the prescribed limit, he cannot be considered to be a 'small farmer'. Therefore, the Trial Court was not right in holding that the first defendant is a 'small farmer'. As on that date, he was not holding any land. Unless a person holds the land within the prescribed limit, he cannot be considered to be a 'small farmer'. Therefore, the Trial Court was not right in holding that the first defendant is a 'small farmer'. The lower Appellate Court has considered the above aspects and has rightly come to the conclusion that the first defendant is not a 'small farmer'. 13. Further, Section 6(1) of the Act provides that the 'debtor', referred to in Clause (f) of Section 4, may make an application to the Tahsildar having jurisdiction over the area within which such 'debtor' ordinarily resides, for an order releasing the mortgaged property and for the grant of a certificate of redemption and such an application shall not be made after 13.12.1979. But the Tahsildar is given a discretion to extend such time by one month. As per Section 6(2)(a)(i) of the Act, If the Tahsildar is satisfied that the debtor is entitled to relief under Section 4, he shall pass an order releasing the mortgaged property and grant a certificate of redemption in the prescribed form which shall be admissible as evidence of such redemption in any proceeding before any Court or other authority and if the Tahsildar is of the view that the debtor is not entitled to relief under Section 4, he shall pass an order dismissing the application. In this case, admittedly the first defendant did not file any application before the Tahsildar within the prescribed time as provided for under Section 6 of the Act. It is pertinent to note that Section 6(2-A)(b) provides that, "where any debtor referred to in Clause (f) of Section 4, has not made any application in accordance with the provisions of, and within the time specified in sub-section (1-A), then such debtor shall not be entitled to relief under this Act". 14. In the light of the above said provisions, the first defendant is not entitled to claim any relief under Tamil Nadu Act 31 of 1976. The lower Appellate Court has considered all the above said aspects and has rightly come to the conclusion that the first defendant is not entitled to any benefit under the said Act. Hence, I see no reason at all to interfere with the judgment of the lower Appellate Court. The lower Appellate Court has considered all the above said aspects and has rightly come to the conclusion that the first defendant is not entitled to any benefit under the said Act. Hence, I see no reason at all to interfere with the judgment of the lower Appellate Court. In my considered view, the substantial question of law itself is not properly framed. The substantial question of law has been framed in general terms, without reference to the facts of this case. The substantial question of law has been framed on the footing that since the first defendant was the owner of the land measuring only two acres worth Rs.4,000 and he was not owning any other property, whether the first defendant will come within the definition of 'small farmer' or not? Under Section 3(1) of the Act, a small farmer in order to fall within the definition of 'debtor' under Section 3(b), should be a person whose principal means of livelihood is the income derived from agricultural land. On the facts of this case, it is seen that on the date of commencement of the Act, admittedly the first defendant was not owning any land and hence as discussed above, he will not come within the definition of 'small farmer' and consequently he will not be entitled to any benefit under Tamil Nadu Act 31 of 1976. The substantial question of law is answered accordingly. 15. Neither before the Trial Court nor before the lower Appellate Court the first defendant claimed any "benefit as a landless agricultural labourer within the meaning of Section 3(f) of the said Act. Therefore, that issue was not at all considered by the Courts’ below. Before this Court also, the learned counsel appearing for the appellants/defendants did not make any submission on that aspect. Hence, I am not considering the question, namely, whether the first defendant is entitled to any benefit as a debtor i.e. as a landless agricultural labourer under Section 3(f) of the Act. Hence, the Second Appeal fails and the same is dismissed but without costs.