Judgement

SUBBA RAO, J. : This appeal by certificate raises the question of the applicability of S. 9-A (10) (ii) (b) of the Madras Agriculturists Relief Act (Madras Act IV of 1938), hereinafter called the Act, as amended by Act XV of 1943 and Act XXIII of 1943, to a mortgage in respect whereof a petition for scaling down the said mortgage debt under the provisions of the Act was filed.

2. On August 18, 1930, the predecessors-in-interest of the appellants executed a registered deed of usufructuary mortgage in favour of the family of Samu Pattar for Rs. 31,000/- No interest was stipulated in the document but the mortgagee was put in possession of the mortgage property. The mortgagee had to enjoy the income from the said property, and after appropriating interest due on the mortgage and after paying the revenue and the jenmi s purappad, he was to pay to the mortgagors one edangali of paddy every year within the 30th of Makarom. The mortgage was redeemable after the expiry of 60 years from the date of the mortgage. The 11th appellant and his deceased father, Narayana Iyer, filed O. P. No. 43 of 1949, on the file of the Court of Subordinate Judge, Palghat, under Ss. 9-A and 19-A of the Act for scaling down the mortgage debt thereunder. To that petition appellants 1 to 10 and others mortgagors were impleaded as respondents 2 to 14, and the mortgage, as the first respondent. As the said first respondent-mortgagee raised the plea that the mortgage interest had been set apart by the members of his family to a charity, respondents 15 and 16, who were the seniormost male members of their respective branches of the mortgagee-family were also impleaded as respondents to the said petition.

3. The contesting respondents, inter alia, raised two pleas, namely, (1) the mortgage property was transferred in trust to the charity for valuable consideration and, therefore, S. 9-A (10) (ii) (b) of the Act was attracted and hence the mortgage was not liable to be scaled down under the Act; and (2) the said mortgage right was the subject-matter of a partition amongst the several members of the joint family consisting of respondents 1, 15, 16 and others and, therefore, the said mortgage was exempted under S. 9-A (10) (ii) (c) of the Act from its operation.

4. On the first question the learned Subordinate Judge held that "The transferee, viz., the charity, not being a transferee for valuable consideration" the proviso to S. 9-A (10) (ii) (b) did not apply; and on the second question he held that the partition of the family in the sense of division in status was effected before the relevant period and that apart, as the mortgage interest of the family was not allotted to some or one of the members of the family but a trust was created in respect thereof in favour of a charity, S. 9-A (10) (ii) (c) had no application. In the result he allowed the petition and granted a certificate to the petitioners and respondents 2 to 14 to the effect that the amount due under the mortgage on the date he made the order was Rs. 8,788-14-10.

5. As the first respondent died pending the proceedings in the Court of the Subordinate Judge, the 17th respondent, his younger brother, was brought on record in his place.

6. Against the order of the learned Subordinate Judge, the 17th respondent preferred an appeal to the High Court of Judicature at Madras, being A. A. O. No. 577 of 1952. To that appeal, the petitioners and other respondents were made respondents. On the first question, the High Court held that the family transferred the mortgage interest for valuable consideration in favour of the charity within the meaning of para. (b) S. 9-A (10) (ii) of the Act; and on the second question it held that the expression "partition" in S. 9-A (10) (ii) (c) meant partition by metes and bounds and though it was effected during the relevant period the mortgage interest in the property was not the subject of partition and, therefore the said provision was not attracted to the mortgage in quest