Venkatarama Ayyar, J.-

This is an appeal by the defendant against the judgment of Basheer Ahmed Sayeed, J., in C.C.C.A. No. 81 of 1950. The suit properties, belonged to one Subramania Mudaliar. On 11th September, 1924, he executed a mortgage in favour of the appellant for a sum of Rs. 10,000. The properties comprised in the mortgage are two shrotriem villages called Palayanoor and Kolambakkam, and also certain house properties within the City of Madras. The mortgage-bond provides that interest should be paid at 10 per cent. per annum and that in case of default it should be paid at the rate of 12 per cent. per annum compounded annually. On 21st October, 1931, Subramania Mudaliar executed a lease-deed in favour of the plaintiff with reference to the shrotriem villages and also certain lands. The net income from them was fixed at Rs. 5,950. The appellant was to make several payments out of it, including a peishcush of Rs. 2,500 to the Government and a sum of Rs. 2,900 thereof was to be credited towards the mortgage-bond. On 17th July, 1943, accounts were settled between the parties, and it was found that a sum of Rs. 3,062-10-0 was due to the plaintiff towards the balance of principal. The present suit is to recover this amount with subsequent interest at 10 per cent. compound interest. The defendant in the action is the son of Subramania Mudaliar who had died before suit. The suit was dismissed by the learned City Civil Judge on the ground that Subramania Mudaliar was an agriculturist entitled to relief under the Usurious Loans Act X of 1918 as amended by Madras Act VIII of 1937. Against that judgment, the plaintiff preferred C.C.C.A. No. 81 of 1950. Basheer Ahmed Sayeed, J., who heard the appeal disagreed with the learned City Civil Judge on the question as to whether the defendant was entitled to relief under the Usurious Loans Act. He held that the defendant had not established that he was an agriculturist within the meaning of that Act and that therefore he was not entitled to relief thereunder. A farther contention was also raised on behalf of the defendant that the rate of interest claimed, viz., 10 per cent. compound interest was excessive and that it should be reduced. The learned Judge held that having regard to the facts of the case the rate of interest agreed to between the parties was not excessive and that the plaintiff should accordingly be awarded interest at 10 per cent. compound interest. In the result, he granted a decree prayed for. Against that judgment, the defendant has preferred this appeal.

Learned counsel for the appellant has raised two contentions in support of this appeal: (1) that the appellant is an agriculturist entitled to relief under the Usurious Loans Act and (2) that the rate of interest awarded is excessive.

On the first question, it must be noted that no plea is distinctly raised in the written statement that the appellant is an agriculturist entitled to relief as such. under the Usurious Loans Act. There is a general plea taken that he is entitled to relief under that Act. The Act, however, confers benefits both on agriculturists and non-agriculturists, there being special provisions in favour of the former. If, therefore, the defendant wanted that relief should be given to him on the basis that he was an agriculturist, it was a matter which he should have alleged and proved. Not merely was there no averment in the written statement that he was an agriculturist; no evidence whatever, oral or documentary, was adduced at the trial to prove that. The plaintiff filed his mortgage-deed and the documents of title relating to the mortgaged properties. On the basis of some recitals found in those documents, a contention appears to have been raised at the time of arguments that the defendant was an agriculturist. The learned City Civil Judge observed:

“In this particular case the defendant seems to be cultivating a portion of his land on pannai."

There is, however, no evidence in support of this observa

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