Sir John Beaumont.-This is an appeal from a judgment and decree of the High Court at Madras, dated 13th November, 1944, modifying a decree of the Court of the Subordinate Judge of Tanjore, dated 18th July, 1941.

The suit out of which this appeal arises was brought by Receivers appointed by the Court to collect the dues upon a mortgage bond, dated 19th April, 1926. The mortgage was executed by appellant 1, who was defendant 1 in the suit, on behalf of himself and his minor sons appellants 3 and 4, who were defendants 3 and 4, and by defendant 2 and members of his joint family who were defendants 5, 6 and 7. The suit, which was to enforce the mortgage, was commenced on 6th April, 1937, and the plaintiffs who are respondents in this appeal, were the persons interested in the mortgage money. The defences originally raised are no longer relevant. On 22nd March, 1938, the Madras Agriculturists Relief Act, 1938 (Madras Act IV of 1938) (hereinafter referred to as “the Act”) was passed with the object of giving certain relief to agriculturists as defined in the Act. The defendants filed supplementary written statements claiming relief under the Act. It was conceded that defendants 2, 5, 6 and 7 were agriculturists entitled to relief under the Act, and the principal matter in issue in the suit was, and the only question for determination in this appeal is, whether the appellants representing the other branch of the mortgagor family are also entitled to relief as agriculturists.

Section 3, sub-section (2) of the Act defines agriculturist as meaning a person who

“(a) has a saleable interest in any agricultural or horticultural land in the Province of Madras, not being land situated within a municipality or cantonment, which is assessed by the Provincial Government to land revenue (which shall be deemed to include peshkush and quit rent), or which is held free of tax under a grant made, confirmed or recognised by Government;”

The other clauses of the definition are not relevant, but there are four provisos to this section which restrict the class of agriculturists. Provisos “C” and “D” are relevant and are in the following terms:

“Provided that a person shall not be deemed to be an agriculturist if he (c) has within the two years immediately preceding 1st October, 1937, been assessed to property or house tax in respect of buildings or lands other than agricultural lands, under the Madras District Municipalities Act, 1920, the Madras City Municipal Act, 1919, the Cantonments Act, 1924, or any law governing municipal or local bodies in any other province in British India or any Indian State, or under the Madras Local Boards Act, 1920, in a panchayat which was a union before 26th August, 1930, provided that the aggregate annual rental value of such buildings and lands, whether let out or in the occupation of the owner, is not less than Rs. 600; or

(D) is a landholder of an estate under the Madras Estates Land Act, 1908, or of a share or portion thereof in respect of which estate, share or portion any sum exceeding Rs. 500 is paid as peshkash or any sum exceeding Rs. 100 is paid as quit-rent, jodi, kattubadi, poruppu or the like or is a janmi under the Malabar Tenancy Act, 1929, who pays any sum exceeding Rs. 500 as land revenue to the Provincial Government.”

It is not disputed that the appellants came within the definition of “agriculturist” contained in section 3(2)(a), but it is claimed by the respondents that they were taken out of the class of agriculturists because appellant 1 fell within provisos C and D. 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 under 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 within the general definition of that word they would be en