Mack, J.@mdashThis appeal raises an interesting point of scaling down in relation to a woman (first respondent) whose debts are exempted under
S. 4 (h) of Act IV of 1938, provided she owns property less than Rs. 6000 in value. The short facts are these :-The appellant purchased the equity
of redemption of a usufructuary mortgage dated 10th June 1919 for Rs. 500, in 1950 from the original mortgagor one Velammal. The original
mortgagee who is the first respondent ''''suborned"" this property to the late father of the second respondent on 7th September 1930 for Rs. 400.
The appellant after his purchase filed an application under S. 9-A of Act IV of 1938, as recently amended for scaling down the mortgage debt.
The first respondent in the position of a debtor in relation to the second respondent also filed a scaling down petition O.P. No. 49 of 1950 in which
the debt due by her to the second respondent to redeem the sub-usufructuary mortgage was scaled down to Rs. 133-11-8 on 6th October 1950.
The position taken by the appellant in his scaling down petition which was subsequently heard, was that, in the circumstances, the first respondent
as a woman admittedly exempted under S. 4 (h) was entitled at the most only to payment of Rs. 500, the amount she lent under the original
usufructuary mortgage dated 10th June 1919, that as she obtained Rs. 400 from the second respondent under sub-usufructuary mortgage she was
only entitled to receive Rs. 100 from the appellant, and that in order to effect redemption in full discharge of the original sub-mortgage the second
respondent had to be paid Rs. 133-11-8 by the appellant. This seemingly equitable position was accepted by the learned District Munsif who
ordered the scaling down petition accordingly.
2. The learned District Judge in appeal however took the view that S. 4 (h) as I understand his reasoning, gave the first respondent protection as
regards her debt as a whole and that she had independent rights to recover this debt without any diminution and also by transposing herself into the
position of a debtor, have the debt due by her on the sub-mortgage to the second respondent scaled down under S. 9-A of the Act, So far as the
second respondent was concerned, he admitted that a sum of Rs. 133-11-8 was only due to him and he claimed nothing more. The resulting
position then is that the first respondent claims to addition to the original debt of Rs. 500 due to her on the original othi of 1919 fully protected as it
is from scaling down under S. 4. (h) of the Act, the right as a debtor to have the debt for Rs. 400 due by her to the second respondent scaled
down under the Act.
3. The learned District Judge in his order made the observation that though it might be that in a suit for redemption the sub-mortgagee might be a
necessary party, it was not on the ground of any contractual relationship between the petitioner and the sub-mortgagee. His reasoning proceeded
on the footing of keeping completely separate the privileged position of a woman under S. 4 (h) of the Act, retaining the debt due to her under the
section undiminished, at the same time entitling her as a debtor to have her othi debt to the second respondent scaled down substantially under the
Act. The result is, that she obtains Rs. 400 (four hundred) plus Rs. 365 that is Rs. 765 or Rs. 265 more than the original debt due to her. The
learned District judge has based his conclusion in this case by considering the position of the first respondent separately in two watertight
compartments, one as a woman entitled to protection so far as a debt due to her is concerned under S. 4 (h) and her right as a debtor to have her
debt on the sub-othi scaled down.
4. In a case of this kind, it appears to me necessary and equitable to consider the scaling down petition from the standpoint of these three persons
all of whom are necessary parties to a scaling down petition. Had the first respondent, the original mortgagee not been a woman entitled to special
protection under the Act, the petitioner, as the learned Advocates agree, would have been entitled to have had the usufructuary mortgage declared
to be fully discharged after the expiry of 30 years in which event he would have recovered possession of the hypotheca without paying anybody
anything at all. It seems to me most inequitable and unreasonable that in the circumstances the first respondent should be permitted to capitalise her
position as a privileged woman under S. 4 (h) which only protects the debt due to her from any diminution and to receive a substantial sum of Rs.
265 over and above this amount. The judgment of the learned District Judge cannot be supported, as it appears to me, either on legal or equitable
principles. The appeal is allowed and the decree of the learned District Munsif restored with costs throughout.
