Narayanaswami Chettiar vs Vellappa Udayar And Anr. on 23 November, 1953

Madras High Court
Narayanaswami Chettiar vs Vellappa Udayar And Anr. on 23 November, 1953
Equivalent citations: AIR 1954 Mad 829, (1954) IMLJ 578
Author: Rajamannar
Bench: Rajamannar, V Ayyar


Rajamannar, C.J.

1. This appeal was originally heard by Chandra Reddi J. who directed it to be posted before a Bench as it raised a question of importance relating to the interpretation of Section 9-A, Sub-section (7), Clause (ii) (a), Madras Agriculturists Relief Act. , The facts necessary for the disposal of this appeal are as follows: On 2-7-1925 one Seviyappudayar acting for himself and on behalf of his minor son Vellayapudayar executed a usufructuary mortgage for Rs. 1000 in favour of Narayanaswami Chettiar, Ex. A-1. It comprised 27 items. A few of these items were sold subsequently by Seviyappudayar to one Kandaswami Udayar by a sale deed dated 30-11-1935. The purchaser was directed to discharge the mortgage. Kandaswami Udayar, in his turn, conveyed the properties purchased by him to Vellayappudayar, the son of Seviyappudayar, by a deed 17-6-1943. Vellayappudayar filed in the Court of the District Munsif of Tirukoilur a petition under Sections 9-A and 19-A of the Madras Agriculturists Relief Act praying that the debt due to Narayanaswami Chettiar, the usufructuary mortgagee, may be scaled down and the amount due may be determined. Seviyappudayar, the original mortgagor, the petitioner’s father, was added as the second respondent.

The main plea of the mortgagee-first respondent was that the petitioner was not entitled to the benefit of the provisions of Section 9-A on the ground that Sub-section (7) (ii) (a) applied to the same. Both the District Munsif and on appeal the learned District Judge held that the case did not fall within the said clause and granted relief to the petitioner. The mortgagee-first respondent in the petition is the appellant before us.

2. Section 9-A was added to the original Act by the Amending Act 23 of 1943. This section enacts special provisions in respect of usufructuary mortgages. Before its enactment they were dealt with in Section 10, Sub-section (2) of the Act. Under Clause (i) of that sub-section nothing contained in Sections 8 and 9 affected “any mortgage by virtue of which the mortgagee is in possession of the property mortgaged, where no rate of interest is stipulated as due to the mortgagee”. By the Amending Act the following words were added to Section 10(2) (i) namely, “except to the extent provided for in Section 9-A”. Section 9-A(i) confers on the mortgagor a right to redeem the property notwithstanding that the time, if any, fixed in the mortgage deed for redeeming the mortgage has not arrived, in the case of usufructuary morlgages executed at any time before 30-9-1947. Sub-sections (2) and (3) enact the substantial provisions for the discharge and scaling down of usufructuary mortgages. In cases where the usufructuary mortgagee has been in possession for a period of less than 30 years provision is made for redemption by paying a lesser amount varying with the period during which the mortgagee was in possession (Sub-section (2) ).

Under Sub-section (3) possession of the mortgaged property by the mortgagee for an aggregate period of 30 years or more operates as an absolute discharge of his mortgage debt. Sub-sections (4),
(5) and (6) deal with miscellaneous matters like improvements, lease-back, etc. Sub-section (7) exempts certain usufructuary mortgages from the operation of the provisions of Sub-sections (2) to
(6) of Section 9-A. In so far as ifc is material for this appeal that sub-section runs thus: “(ii)(a) Where during the period after the 30th September 1937 and before the 30th January 1948, the equity of redemption in the property subject to the usufructuary mortgage has de

volved either wholly or in part on a person by or through a transfer ‘inter vivos’, either from the original mortgagor or from a person deriving title’ from or through such mortgagor otherwise than by a transfer ‘inter vivos’, then, to the whole or such part, as the case may be.” The significance of the two dates is this 30-9-1937 is the crucial date fixed under the original Act IV of 1938. 30-1-1948 is the date of the introduction in the Assembly of the Amending Bill of 1948. In the present case the transfer from the mortgagor to Kandaswami Ulayar is in 1935, that is, outside the period mentioned in Sub-section (7)(ii)(a), but the transfer by Kandaswami Uda-yar to Vellayappudayar is in 1943, that is, within the said period.

3. We entirely agree with the following observation of Subba Rao J. in — ‘Sanyasappanna v. Appalaswami’, (A), where he had occasion to deal with this sub-section: “But the section has not been artistically drafted and has lent ample scope for conflicting arguments”. The language is obscure and ambiguous in many points and the intention of the Legislature is far from clear. But this does not relieve us of the duty to construe it to determine whether this case falls within that Clause (7)(ii)(a). We have in this case first a transfer of a part of the equity of redemption by the mortgagor before the period mentioned and that transfer will therefore fall outside the scope of Clause (a). We have next further another transfer by the transferee from the mortgagor to the first respondent in this appeal. This devolution has taken place no doubt during the material period by a transfer ‘inter vivos’. This transfer however is not from the original mortgagor. The question is whether it is from a person deriving title from or through the mortgagor otherwise than by a transfer ‘inter vivos’. The only answer to this question can be, it is not. It is from a person deriving title from the mortgagor by a transfer ‘inter vivos’. The result is, the case falls outside the scope of Sub-section (7)(ii)(a). To sum up the position, there is no devolution from the original mortgagor during the material period between 30-9-1937 and 30-1-1948. The devolution during this period is from a person deriving title from the mortgagor by a transfer ‘inter vivos’. In terms of the section there is no devolution from a person deriving title from the mortgagor otherwise than by a transfer ‘inter vivos’.

4. It may be that this construction of the enactment leads to what may appear to be an anomaly. A transferee from the mortgagor falls within the exception, but a transferee from such a transferee does not fall within it. Dealing with the latter part of Clause (a), Subba Rao J. pointed out a like anomaly. He said: “It was said there is no apparent principle for making a distinction between a purchase from a heir of a mortgagor and a purchase from a purchaser from the heir of a mortgagor.” He then refers to anomaly which we nave pointed out:

“The same anomaly may also be pointed out in the case of a devolution of the equity of redemption on a person by or through a mortgagor, dealt with in the first part of the clause. There too the transaction to be hit by the section should have been a transfer ‘inter vivos’ from the original mortgagor between the aforesaid two dates. The clause would not apply if the transfer effected between the aforesaid dates is from a transferee from the original mortgagor prior to 30th September 1937.”

It Is not necessary, nor is it possible for us to-read the mind of the Legislature, though Subba-Rao J. has suggested that the clause was probably intended to affect transfers ‘inter vivos’ or an equity of redemption from the original mortgagor or his heirs, etc. directly between the aforesaid two dates.

5. The anomaly becomes more pronounced where we look at the next clause, namely, Clause (b) of Sub-section (7)(ii) which runs thus:

“Where, during the period aforesaid, the usufructuary mortgagee or any of his successors in interest has transferred either wholly or in part the mortgagee’s rights in the property bona fide and for valuable consideration, then, to the whole or such part, as the case may be.” Here the expression used is “successors in interest” which is wide enough to include transferees. We have however a suspicion that this expression was intended to be a compendious phrase to denote the class of persons mentioned in the last part of clause (a), that is, persons deriving title otherwise than by a transfer ‘inter vivos’.

6. Construing Clause (a) according to the plain meaning of the words used, we hold that the present case does not fall within its scope. It follows, therefore, that the petition under Section 9-A was maintainable to obtain reliefs other than that mentioned in Sub-section (1) as well. This is the view taken by the courts below, and we agree with it.

7. In this view it is not necessary to deal with another contention put forward by Mr. Sitararna Aiyar on behalf of the petitioner in the court below that in any event he was entitled to relief as one of the original mortgagors. This basis for relief does not appear to have been stressed in either of the courts below. This plea is a mixed plea of fact and law, and if we thought it necessary to decide it we should have remanded the matter to the court below.

8. The civil miscellaneous second appeal fails on the construction we have placed on Sub-section (7) (ii) (a) of Section 9-A of the Madras Agriculturists Relief Act and is dismissed with costs.

9. We cannot refrain from bringing the ambiguity in the language of this clause to the notice of the Government so that, if our construction does not accord with the intention of the Government who were responsible for the amendment, proper steps may be taken to further amend the provision to bring out clearly such intention.

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