Debtor to prove that he is not an agriculturist.

This appeal is directed against the order in I.A No, 111 of 1976 in O. S. No. 60 of 1972 on the file of the Sub-Court, Nagercoil, scaling down the decree amount from Rs. 19,158.75 to Rs. 11,493 42 at the instance of the first defendant on the ground that he is an agriculturist entitled to the benefit of Act IV of 1938 as amended by Act VIII of 1973. The plaintiff-decreeholder has filed this appeal questioning the correctness of the findings of the Court below that the first defendant-respondent is an agriculturist.

2. On 7th May, 1960, one Adikesavaperumal executed a hypothecation bond for Rs. 12,500 in favour of one Ponnammal. On 30th October, 1962, the mortgagor, Adikesavaperumal expired leaving Kumara Pillai, the first defendant as his sole heir. As the said first defendant was a lunatic, the Official Receiver, Nagercoil, was appointed as the guardian of his property and one Kesava Piliai was appointed as his personal guardian in O.P. No. 73 of 1962 The Official Receiver realised some income from the properties of the first defendant and paid in all on various dates between 4th August, 1969 and 23rd December, 1971, Rs. 2,210. The mortgagee, Ponnammal assigned the mortgage on 5th April, 1972 In favour of the plaintiff Arumugha Nadar who had filed the suit O S. No. 60 of 1972 on 22nd April, 1972, against the first defendant represented by the Official Receiver On 12th February, 1974, a compromise decree was passed for Rs 19,158 75. On 30th November, 1975. the personal guardian of the first defendant Kesava Pillai had filed I. A. No. 113 of 19 6 for scaling down the decree on the ground that the judgment-debtor is an agriculturist.

2. The decree holder resisted the said application for scaling down the debt on the ground that the original mortgagor Adikesavaperumal was assessable to agricultural income-tax and income tax, as such the first defendant was not entitled to the benefits of Act IV of 1938 as amended by Act VIII of 1973, that the first defendant not having claimed the benefit of the said Act even before the passing of the decree, is not entitled to claim the benefit subsequent to the passing of the decree and that the first defendant who is the son of the debtor cannot claim the benefit of the Act.

3. The Court below held that as the plaintiff has not produced any certificate from the Agricultural Income-tax Officer to show that the mortgagor Adikesavaperumal or his son was assessed to agricultural income-tax, disentitling them to claim the benefit of the Act, and as it is indisputable that Adikesavaperumal and his son had got saleable interest in the landed properties, they have to be held to be agriculturists as contemplated by section 3 (2) (a) of the Act on the two crucial dates namely: (1) on the date of the debt; and (2) on the date of recovery thereof through the process of the Court. The Court below also held that the legal representative of the original debtor is entitled to claim the benefits of the Act in case he has proceeded against as regards the properties of the deceased in his hands as he has satisfied the requirements of the definition of ‘agriculturist” under the said Act.

4. The learned counsel for the appellant does not dispute the finding of the Court below that the first defendant as legal representative of the original debtor is entitled to claim the benefits of the Act if he satisfies the definition of an agricultural. But what the learned counsel submitted is that the Court below is in error in holding that the original mortgagor and his son the first defendant were agriculturists only because they had admittedly saleable interest in agricultural lands and that as the decreeholder (appellant) had not adduced evidence to prove that they had been assessed to agricultural incometax, or income-tax it must be assumed that they answer the definition of “agriculturist”. The learned counsel points out that though the appellant had not actually proved that the original debtor as well as his son, t