Scope of the provisions of Section 9A.

Venkatarama Aiyar, J.-

This Civil Miscellaneous Second Appeal arises out of an application filed by the respondent under section 9-A, and section 19 of the Madras Agriculturists’ Relief Act IV of 1938, for scaling down two usufructuary mortgages executed in favour of the appellant. The first of them was on 4th September, 1921, and for a sum of Rs. 2,500. It was executed by the respondent and his brother, Velayutha Thevar, both being members of a joint undivided Hindu family. The second mortgage is dated 29th November, 1932, and is for a sum of Rs. 200. On 17th May, 1944, Velayutha Thevar executed a settlement deed, Ex. B-1, conveying his undivided half share in the joint family properties to one Ramanatha, the son of his brother, Karuppiah Thevar. Ramanatha was a minor on the date of the transaction and he was represented by his father Karuppiah Thevar as his guardian. The appellant filed O.S. No. 48 of 1946, on the file of the Court of the District Munsiff, Pattukottai, to enforce the mortgage, dated 4th September, 1921. The suit was decreed. Under the provisions of the Madras Agriculturists’ Relief Act as they stood at that time, the usufructuary mortgages were not liable to be scaled down. In 1948, the Act was. amended by inserting section 9-A, under which usufructuary mortgages also could be scaled down under the conditions set out therein. It is under this provision that the respondent filed E.A. No. 174 of 1949, for scaling down the two mortgages. That the respondent is entitled to have the debt scaled down in respect of his half share was not in dispute. The point in controversy between the parties was with reference to the share of Velayutha Thevar in the mortgaged properties. The contention of the appellant before the learned District Munsiff was that there had been partition between Velayutha Thevar and Karuppiah Thevar, that Velayutha Thevar had transferred his interest in the properties to Ramanatha by Ex. B-1, and that therefore under the terms of section 9-A(7) no relief could be granted in respect of that half share.

The learned District Munsiff held that there was a partition, and he accordingly granted relief to the respondent only in respect of his half share. There was an appeal by the respondent to the Court of the District Judge of West Tanjore, A.S. No. 11 of 1950. The learned District Judge held that there was no partition between Velayutha Thevar and Karuppiah Thevar, and he further held that Ex. B-1 would be void as being a gift by a coparcener of his interest in joint family properties. He accordingly decreed that the mortgages should be scaled down in respect of the entire interests of the mortgagors. It is against this decree that the present appeal has been filed.

Two contentions have been raised before us on behalf of the appellant. One is that there was a partition between Velayutha Thevar and Karuppiah Thevar. In support of this contention reliance was placed on the recitals in two documents, Exs. B-6 and B-4. Ex. B-6 is a power-of-attorney, dated 22nd June, 1904, executed by Karuppiah Thevar for himself and on behalf of his minor son, Ramanatha, in favour of Velayutha Thevar. This document recites that the executants would be going to Ceylon and that Velayutha Thevar should be in management of the properties during their absence. Velayutha is described as a vibhakta or divided brother in this document. Ex. B-4 is a release deed executed by a stranger, wherein it is recited that a particular plot fell to the share of Karuppiah. On these materials, it is argued for the appellant that it should be held that there was a division between Velayytha Thevar and Karuppiah Thevar. In the absence of direct evidence on the matter, the learned District Judge took the view that the recitals were not conclusive to establish a partition and that they were capable of explanation. We are unable to say that this is not a view which is possible on the facts of the case and as the question is one of fact there are no

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