Burden of proving as to who is agricultyrist.

Sivasubramaniam, J.

1. The unsuccessful defendants in O.S. No. 754 of 1979 on the file of the Subordinate Judge of Salem are the appellants in this appeal.

2. The respondent is a Nationalised Bank Which filed the said suit for recovery of a sum of Rs. 44,352-32 due on a mortgage and for costs.

The case of the respondent/plaintiff, as set out in the plaint, is as follows: - The first appellant is a firm in which the other appellants were partners. The appellants wanted financial help for running their business and, therefore, they approached the respondent for a loan. The respondent agreed to lend under Open Cash Credit Hypothecation limit and the facility was sanctioned on 3-2-1971 to the extent of Rs. 20,000 which was subsequently enhanced to Rs. 35,000 on 24-4-1973 and further raised to Rs. 43,000 on 18-8-1973. The second appellant deposited with the respondent Bank on 11-2-1971 the title deeds of his property and created an equitable mortgage. The said deposit of title deeds was made with a view to ensure for loans and advances made and to be made by the Bank to the firm. On 10-9-1973, the appellants 2 to 5 as partners of the first appellant firm and on behalf of the firm, executed a promissory note for Rs. 43,000 with an undertaking to pay interest at the rate of 4 per cent above the Reserve Bank of India Official rate of interest with a minimum of 11 per cent per annum with quarterly rests. An agreement was also executed on the same day and they have executed a letter of hypothecation also in respect of the textile goods worth Rs. 72,395-06. Contrary to the agreement, they have not deposited the sale proceeds into the Bank. The appellants have confirmed the amount payable by them in their letter dated 12-5-1976 and on the same day, they have acknowledged their liability by executing a stamped revival letter also. The respondent issued a notice on 18-4-1977 calling upon them to pay the dues amounting to Rs. 34,434-69 exclusive of interest from 1-4-1977. The appellants also confirmed their liability at Rs. 44,918-23 as on 30-9-1980. Apart from that, the second appellant has acknowledged the debt by a number of letters. Only in the month of November, 1978, it was learnt that appellants 3 and 5 have ceased to be the partners of the first appellant firm. However, this fact was not intimated to the respondent and it was not aware of such reconstitution till November, 1978. Appellants 3 to 5 continued to be liable for the debts and they have been holding out that they were partners of the firm at all relevant times. It is the case of the respondent that the appellants 2 to 5 are personally liable for the suit claim and the mortgaged properties of the second appellant are liable to be sold for realising the suit claim. They are bound to pay future interest at the. contractual rate of interest and they are not entitled to the benefits of any Debt Relief Acts.

3. The suit was resisted by the defendants/appellants. The second appellant filed a written statement which has been adopted by appellants 1 and 4. They had raised the following contentions. Originally, in the year 1966, the appellants 3 and 5 were also partners of the first appellant firm. But they ceased to be partners from 31-5-1972 and the partnership firm was reconstituted from 1-6-1972 with appellants 2 and 4 as partners. The respondent was informed about the said reconstitution of the firm by the letter dated 7-7-1972. The firm was having dealings with the respondent on Cash Credit Account basis. The second appellant produced the title deeds for the perusal of the Bank's Agent and return. He never intended to create any equitable mortgage by deposit of title deeds. The respondent has materially altered the promissory note, hypothecation deed and Form 16 C.P. and P.H. by adding the word (Partners) to foist liability on appellants 3 and 5. The present suit filed on the basis of the materially altered instruments is not maintainable. The simple interest agreed upon is