Vacant site if can be termed as house property.

Appeal No. 317 of 1945: This appeal arises out of O.S. No. 27 of 1943 on the file of the District Judge, Anantapur, a suit filed by the appellant for recovery of a sum of money due on a mortgage deed dated 26th May, 1936, executed by defendants 1 to 3, in favour of the plaintiff. Among other contentions the defendants raised the plea that the debt was liable to be scaled down under the Madras Agriculturists’ Relief Act (Act IV of 1938). The plaintiff contended that the debt was exempted from the operation of the provisions of the Madras Agriculturists’ Relief Act, as the debt was contracted on the security of “house property” alone in the Hindupur Municipality. The mortgage was effected on two items, more particularly described in the plaint schedule.

The learned District Judge held that the first item was a “house property” but the second item was not “house property,” that the mortgage was not executed on the security of “house property” alone and that the debt was liable to be scaled down. The plaintiff preferred the above appeal.

The only question in this appeal, is whether item 2 of the mortgaged property was “house property” at the time, when the mortgage deed Ex. P-1 was executed, that is, on 26th May, 1936: The description of item 2 reads as follows:

"Item II.

Part III Ward V Block IV. T.S. No. 260, out of which (the site) measuring 55 (fifty-five) feet from east to west and 82 (eighty-two) feet from north to south, the boundaries of which are as follows:

East - your "Mandi" shop, and the shops of Madaluru Sidda Veerappa and Shaikh Hussain Sahib.

West: The vacant cite of Minakana Gurki Gangadharappa.

South: Road.

North: The house of Kurka Hanumantu.

The vacant site having the above measurements and situate within these boundaries together with the brick walls surrounding the said-site whole."

This site is, therefore, situated in Hindupur Municipality, surrounded by houses and abutting a road. There was also a brick-wall surrounding the site. The site, therefore, was suitable for building purposes. But the question is whether it is "house property." The words "house property" has not been described in the Act Justice Wadsworth in Ponnambalam Chetti v. Ambalam Raman Chetti1, had an occasion to consider the scope of this exemption. The learned Judge observed at page 945:

"It is contended that the term ‘house property’ is a wider term than the term ‘house’ and that it will include not only land appurtenant to a house which is in existence, but also land earmarked for house building purposes. I doubt very much whether this contention is in accordance with ordinary English usage. When we speak of house property we certainly include buildings fall kinds and the sites thereof. We should probably also include the gardens, compounds and yards attached thereto. But I doubt whether the ordinary connotations of the term house property in every day language would include land earmarked for building purposes, but unoccupied by any buildings. . . . . Granted that the land is suitable for building houses and that there is an intention to build houses upon it, I do not think that it would be considered to be "house property", until building operations had, at any rate, started."

I respectfully agree with the above observations.

In Messrs. Rowe &38; Co. v. Secretary of State for India2, the learned Judges considered whether buildings constructed for carrying on business is "house property." In defining the words "house property" the learned Judges made the following relevant observations:

"To my mind, the expression ‘house property’ would convey to the ordinary person the idea of buildings used for residential purposes. It is for the Crown to show that Messrs Rowe &38; Co.‘s premises are ‘house property’, and that can only be done by saying that property is the general word, while the expression ‘house’ preceding it describes the kind of property referred to. I agree with the observations, but it is not necessary to express my view on the