JUDGMENT.- The plaintiff in O.S. No. 299 of 1968 on the file of the Court of the Subordinate Judge of Coimbatore is the appellant herein. The appellant instituted the suit against the defendant for recovery of the sum due under Exhibit A-1 promissory note, dated 17th April, 1964 for Rs. 10,000 executed by the respondent in favour of the appellant. The suit was decreed as prayed for with costs, but with interest as per the Madras Act IV of 1938. In the appeal the only question that is raised is whether the respondent was entitled to the benefits of the Madras Act IV of 1938. This question has been dealt with by the learned Subordinate Judge in paragraph 10 of his judgment under additional issue. This question was raised by the respondent by way of an additional written statement filed by him. The learned counsel for the appellant relies on an affidavit filed by the respondent herein on 26th August, 1969 wherein he stated that he had been given notice of assessment in which the income from his wife’s property was included and that he had appealed against the same and he was likely to succeed. The learned counsel for the appellant contends that in the light of this admission of the respondent he was not an agriculturist within the meaning of the Madras Act IV of 1938 and he was not entitled to the benefits of the Act. I am unable to accept his argument. The defenition of the term “agriculturist” is to be found in section 3 (11) of the Act. Under section 3 (11) (a) a person having a saleable interest in any agricultural or horticultural land in this State will be an agriculturist. It is not disputed in this case that the respondent had a saleable interest in agricultural land in the State. However, the question is whether the respondent falls within the scope of proviso (d) to section 3 (11) of the Act and therefore he was not entitled to the benefits of the Act. Proviso (a) states that a person shall not be deemed to be an agriculturist if he had been assessed to income-tax under the Income-tax Act for certain-periods. For the purpose of the rate of interest, what is relevant is the actual proviso to section 13 of the Act. According to that proviso the person should have been assessed to income-tax under the Indian Income-tax Act for both the financial years ending with 31st March, immediately preceding the date on which the debt is incurred. In this case, the date of the promissory note is 17th April, 1964 and therefore unless it is established that the respondent was assessed to income-tax for both the financial years ending on 31st March, 1964, the proviso (a) will not apply to the respondent’s case. In this context it is necessary to refer to what the respondent stated in his affidavit referred to already. In paragraph 3 thereof he stated, “I have not been assessed to any income-tax after 1961. This year I have been given notice of assessment in which the income from my wife’s property is included. I have appealed against the same and 1 am likely to succeed-‘ ‘Thus, the above averment in paragraph 3 of the affidavit of the respondent would not bring the case within the scope of the proviso to section 3 (11) of the Act. It is not disputed that there is no other evidence to show that the respondent came within one or other of the provisos to section 3(11). It has been settled by the Privy Council as well as by this Court that the burden or proving that a person who has a saleable interest in agricultural land comes within the scope of one or the other of the provisos is on the creditor. The Privy Council in Veerayya v. Sivagami Achi1, stated as follows:

"Some discussion took place before the Board as to the burden of proof, and the Judges of the High Court seem to have considered that the burden of proving that they were agriculturists entitled to relief trader the Act lay upon the appellants. In the first instance no doubt the burden was upon the appellants to show that they were agriculturists. But having shown that they fell

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