The fiction enacted in S. 9-A(9)(a)(i) of the Madras Agriculturists Relief Act, which deems rent due as interest, cannot be extended to rent that had been paid.

RAMACHANDRA IYER, C.J. :- These appeals have raised a question of some difficulty on the interpretation of sub-sec. (9) (a) (i) of S. 9-A of the Madras Agriculturists Relief Act (hereinafter to be referred to as the Act) and the importance of it has necessitated this reference to a Full Bench. The point for decision can be formulated thus:

"Where in the case of a usufructuary mortgage (to which the scaling down provisions of S. 9-A of the Act would apply) created after the enactment came into force, there has been a lease back by the mortgagee of the mortgaged properties to the mortgagor, the payments of rent made by the latter to the former can be regarded as payments made for interest and be re-appropriated towards the principal after providing for interest at the rate prescribed by Sec. 13."

The two appeals concern different parties and have nothing in common except the determination of the question aforesaid. We shall first refer briefly to the facts that have led up to the two appeals.

2. L.P.A. No. 56 of 1961: is an appeal under Cl. 15 Letters Patent from the judgment of Jagadisan J. where the respondent, an agriculturist, created on 7th May 1945 a usufructuary mortgage in favour of the appellant to secure a loan of Rs. 1000. The appellant, the mortgagee, leased back the property to the respondent stipulating an annual rent of 40 kalams of paddy. The paddy appears to have been almost regularly paid and only an insignificant part thereof was in arrears at the time, when the respondent instituted the suit for redemption. In the suit, out of which this appeal arises, the respondent claimed that the rents paid by him should be commuted on terms of money and after appropriating that part thereof representing 5½ per cent interest on the loan advanced, the balance should be credited to the principal and that if that were done, there would be nothing due on the mortgage. Both the lower Courts accepted the respondents contention and after declaring that nothing was due to be paid under the mortgage, directed redemption. This view has been affirmed by the learned Judge.

3. L. P. A. No. 84 of 1961 : relates to the judgment of Venkatadri J. on almost similar facts. There the respondents borrowed on 10th May 1944 from the appellants father a sum of Rs. 1850 after executing a usufructuary mortgage of certain properties. There was a lease back to the mortgagor of the same properties at an annual rent of 72 kalams. Rents were paid for some years but there was default in respect of two years. The mortgagees son filed a suit to recover the lease amount in S.C.S. No. 26 of 1956 on the file of the Subordinate Court, Kumbakonam, and obtained a decree for Rs. 694-2-0 being arrears of rent and Rs. 180-10-0 by way of costs. The mortgagors then instituted the suit for redemption praying for a declaration that the mortgage bond and the decree in Small Cause Suit had become discharged by reason of interest having been paid in excess of what was prescribed by S. 13 of the Act. The trial Court accepted their case in the main, and held that a sum of Rs. 476-15-0 alone was due under the mortgage. On appeal by the mortgagee the learned Subordinate Judge recalculated the amount due under the mortgage document and found that a sum of Rs. 809-6-0 would be due. The mortgagee did not appeal from that judgment but the mortgagors did. Venkatadri J. held that the method of calculation adopted by the lower appellate Court was not correct and that the debt had to be scaled down in the light of the directions given by him. The decree of the lower appellate Court was set aside and the appeal remanded for reconsideration.

4. Both Jagadisan J. and Venkatadri J. in their respective appeals have, in upholding the claim of the mortgagors, held that the payments of rent made by the mortgagors should be regarded as payments of interest and so far as such interest was in excess of the ceiling rate fixed in S. 13, they should have been deemed to be paid by mistake of