JUDGMENT
Srinivasan, J.
1. This revision has been filed by the plaintiff whose suit on a promissory note has been dismissed by the trial Court on the ground that the defendants were entitled to the benefit of the Tamil Nadu Act 13 of 1980. On the question, whether the promissory note was supported by consideration the trial Court held in favour of the plaintiff. Because of the finding that the defendants are titled to the benefit of the Tamil Nadu Act 13 of 1980, the suit has been dismissed.
2. The question, whether the legal representatives of a debtor are entitled to the benefits of the Debt Relief Acts was referred to a Full Bench and this revision was also placed before the Full Bench. The Full Bench answered the question in the affirmative and sent back the matters to be decided on merits by the concerned Judges. Thus, this revision petition has come up before me for decision on merits.
3. Section 3(d) of the Tamil Nadu Act 13 of 1980 defines a debtor as a person from whom any debt is due and whose annual household income docs not exceed Rs.4,800. The proviso excludes from the definition certain categories of persons. One such category is a debtor or any member of his family owning individually or jointly in this State or elsewhere, both agricultural lands and other immoveable property, the market value of both such agricultural lands and other immoveable property exceeding Rs.25,000. The initial burden is on the debtor to prove that he falls within the definition under Section 3(d) of the Act, that is, he should prove that his annual household income does not exceed Rs.4,800. In the present case, on behalf of the defendants, D.W.1 is the only witness. The first defendant is examined as D.W.1. In chief-examination she has stated that she owns 3.50 acres of punja lands. According to her, her husband had two brothers and Ex.B.1 is the patta in the name of her husband. She has stated that Ex.B.2 is the chitta extract and out of a total of 10 acres and odd, she owns 3.50 acres. According to her, there is no well in her lands and in 1979, she raised manavari groundnut crop and produced Exs.B.3 and B.4 the adangals to prove the same. According to her evidence, three bags of groundnut could be obtained from 1 acre of land and in certain cases five bags could be obtained. She categorically asserted that in 1979, she got a total of ten bags of groundnut and the price of each bag was Rs.80. However, she had stated that her total income was Rs.4,200 and the expenditure was Rs.500. In cross examination she states that the two wells referred to in Exs.B.3 and B.4 are not situated in her share of the lands. She denied the suggestion that her properties are worth Rs.1,00,000 and that her house is worth Rs. 15,000.
4. The oral evidence of D.W. 1 is quite contrary to the documentary evidence produced by her. The documents completely belie her version in the witness-box. Ex.B.1 is the patta in the name of the husband of the first defendant. There is nothing in the patta to show that it is a joint patta in favour of more than one person or that persons other than the husband of the first defendant had interest in the lands covered by the patta. On a reading of the patta, it proves to be an exclusive patta in favour of the husband of the first defendant issued as early as on 19.9.1974. The total extent of the lands is 10.34 acres of punja. The total kist is stated to be Rs.8.37. Ex.B.2 is a chitta extract for faslis 1388 and 1389. It has been issued on 10.3.1983, five years after the filing of the suit. At the top of the extract, three names are mentioned, namely, Perumal Chetty, Subramania Chetty and Ranganatha Chetty. They are shown to be the sons of Govinda Chetty. Relying on this extract, the Court below has taken the view that the first defendant is entitled only to one-third share out of the total extent of 10.34 acres. Ex.B3 is an extract from the adangal register for fasli 1389. That shows Perumal Chetty as the pattadar or the cultivator. According to that document groundnut was raised in that fasli in all the lands. Two wells are shown to exist in S. Nos. 117/1 and 117/2-A/2. Ex.B.4 is another extract from the adangal register for fasli 1388. That also shows Perumal Chetty as the pattadar or the cultivator. Again, groundnut is the crop said to have been raised in that fasli. Two wells are shown to exist in the lands.
5. The only evidence which is relied on by defendants to show that the defendants are entitled only to 3.50 acres, comprises of documents marked as Exs.B.2 to B.4. They are contrary to what is found in Ex.1. Ex.B.2 to B.4 have been issued only on 10.3.1983 long after the institution of the suit, Whereas the document of 1974, namely, Ex.B.1, clearly shows that the 1st defendant’s husband was the owner of the entire 10.34 acres. One document obtained after the suit and produced before the Court refers to three names as if all the three are the owners, while Ex.B.3 and B.4 refer to only Perumal Chetty and not the first defendant or the 1st defendant’s husband. Exs.B-3 and B-4 do not prove that the defendants are entitled only to 3.50 acres. Nor Ex.B-2 can be accepted by the Court as it is directly contrary to Ex.B-1. There is no explanation whatever in the deposition of D.W.1 with regard to the aforesaid discrepancy. She does not say anywhere that the patta, Ex.B-1 was issued in the name of her husband, Ranganatha Chettiar, as the manager of the joint family consisting of himself and his two brothers. No such case has been put forward by the defendants. The 1st defendant has simply produced the patta and stated that Ex.B.1 is the patta. Nor does D.W.1 refer to any partition in the family at any particular time. The learned trial Judge has stated that after the marriage of the first defendant’s husband and his two brothers, because there was a partition, the chitta extract refers to all the three persons. There is no evidence whatever to prove the date of marriage or the date of partition. The first defendant as D.W.1 does not anywhere whisper about her marriage or the partition between her husband and his two brothers.
6. While the first defendant claimed that as per the adangal extracts, Exs. B3 and B4, she raised groundnut crops in faslis 1388 and 1389, as seen already those two adangal extracts refer only to Perumal Chetty. There is no evidence that he was cultivating the lands on her behalf.
7. D.W.1 states that she realised only ten bags of groundnut in 1979 in all and each bag was sold at the rate of Rs.80 per bag. Thus, the total income could only be Rs.800 in 1979 according to her evidence. But in the very next sentence, she states that the total income was Rs.4,200 and the expenditure was Rs.500. If that is so, there is no whisper about the other sources of income for the defendants. If her total income was Rs.4,200 as stated by her, it is quite Obvious that she had other sources of income. But, she has not given any details thereof.
8. In the state of the above evidence, it is surprising that the Court below has chosen to hold that the defendants were owning only 3.50 acres of lands and their annual income in 1979 was less than Rs.4,800. As pointed out by me already, the burden is on the defendants to prove that they fall within the definition of ‘debtor’ under Section 3(d) of the Act. Only after the said burden is discharged, the onus will shift to the creditors to prove that the debtors fall within the exceptions mentioned in the provision. The defendants have failed to discharge the burden cast on them under Section 3(d) of the Act Hence, the question of the creditors proving the exception does not arise.
9. Learned Counsel for the respondents places reliance on the judgment of Mohan, J. in Muthu Kumara Pillai and Son v. Nilakanta Chettiar 1977 T.L.NJ. 404. In that case, it was held that the burden is on the plaintiff creditor to prove that the defendants are assessed to income-tax so as to deprive them of the benefits of the Tamil Nadu Agriculturists Relief Act, 1938. It is seen that on the facts of the case, the defendants were admitted to be agriculturists having saleable interest in agricultural lands. Hence they satisfied the definitions of the word ‘agriculturist’ as found in the Act Consequently, the burden was on the creditors to prove that the defendants in that case fell within the exceptions and that they were paying income-tax, That judgment will have failed to prove that they fall within the definition of the word ‘debtor’ under Section 3(d) of the Tamil Nadu Act 13 of 1980.
10. Learned Counsel for the respondents referred to the decisions in Srinivasa Goundar v. K.M. Krishna Naidu 1990 T.L.N.J. 105, in which a Division Bench of this Court has held that the question, whether a person is a debtor within the meaning of the Tamil Nadu Debt Relief Act 13 of 1980 is a pure question of fact. Learned Counsel submits that the lower Court having given a finding of fact that the defendants are debtors within the meaning of the Act, it is not open to this Court to interfere with the said finding under Section 115, C.P.C. The Division Bench has referred to the judgment of this Court reported in Rameswaram Devasthanam v. Secretary, of State A.I.R. 1927 Mad. 1167., in which it was held that if the finding is based on no evidence, it cannot be treated as a finding on question of fact which is final and that if a finding is based on an inference drawn upon an incorrect construction of a document, the question is one of law and the High Court is not precluded from considering it in second appeal. According to learned Counsel, the decision is applicable only to second appeals and not revisions.
11. In this case, I have already pointed out that there is no evidence on the side of the defendants to prove that they are doffers within the meaning of Section 3(d) of the Act. In such a situation, the finding given by Court below that the defendants are debtors is not a finding on a question of fact which can be treated as binding on me under Section 115, C.P.C. I have already pointed out that the evidence let in by the defendants is, self-contradictory and mutually destructive. While the oral evidence is that the defendants are entitled to 3.50 acres, Ex.fi-1 patta shows that the 1st defendant’s husband was entitled to 10.34 acres exclusively. Ex.B.2 which is the chitta extract runs counter to Ex.B-1 and it cannot stand on the face of Ex.B-1 particularly when it is a document obtained long after the filing of the suit.
Exs.B-3 and B-4 do not prove the ownership of the defendants to any land as they refer only to Perumal Chettiar as the pattadar or the cultivator. Hence, the entire evidence let in by the defendants is absolutely worthless and no Court can consider it as sufficient to prove the claim of the defendants that they are debtors within the meaning of Section 3(d) of the Tamil Nadu Act 13 of 1980, The decision of the lower Court based on total absence of legal evidence amounts to exercise of jurisdiction illegally and with material irregularity. See Bhagavathi Mudaliar v. N. Subramaniam . The finding of the lower Court is manifestly perverse and erroneous. The. Supreme Court has held that in such cases the power under Section 115 C.P.C. can be exercised. See Bhaichand v. Laxmishanker . Consequently, the finding given by the trial Court is unsustainable, and it has to be. set aside.
12. Hence, the Civil Revision Petition is allowed and the suit in O.S. No. 1458 of 1978 is decreed as prayed for by the plaintiff with costs in both the Courts.