JOSHI GIRJADHARJI Vs. LACHMANJI PANTH

JUDGEMENT

(1.) This appeal arises out of an application by five out of ten Judgment-debtors made under Section 8 of the U. P. Debt Redemption Act (No. XIII of 1940 for ascertaining the amount due by them in accordance with the provisions of Ss. 9 and 10 of that Act and for amending the decree passed on March 31, 1939 by the Additional Civil Judge, Banaras, in O .S. No. 33 of 1938. The facts material for the purposes of this appeal may now be briefly stated.

(2.) By a mortgage deed executed on June 22, 1922, Madho Ram, Sita Ram, Jai Ram and Lakshman all sons of Pandit Raja Ram Pant Sess mortgaged certain immovable properties in favour of Damodarji, son of Kanta Nathji, owner of the Kothi Joshi Shivanath Vishwanath for the due repayment of the sum of Rs. 8,000 advanced on that date by a cheque together with interest thereon at 12 annas per cent. per mensem with quarterly rests. On July 28, 1931 the said mortgagors and their sons executed a mortgage over the same properties in favour of Kothi Kamta Nathji Vishwanathji for the due repayment of Rs. 8,000 with interest thereon at twelve annas per cent per mensem with quarterly rests. It is recited in the deed that the sum of Rs. 8000 was advanced on this date by a cheque and that the amount was utilised in paying up the amount due under the earlier mortgage deed to Damodarji proprietor of Kothi Shivanath Vishwanath.

(3.) In 1935 the U. P. Agriculturists' Relief Act (No. XXVII of 1934) came into force. On May 19, 1938 Girjadharji son of Damodarji and Murlidharji minor sons of Gangadjarji who was another son of Damodarji filed suit No. 33 of 1938 in the Court of the Additional Civil Judge, Banaras, against the mortgagors and their sons, for the recovery of Rs. 9,477-2-0 due as principal and interest up to date of suit and for further interest under the mortgage deed of July 28, 1931. It appears from the Judgment of the High Court under appeal that in their written statement the mortgagors claimed the benefit of the U. P. Agriculturists' Relief Act (No. XXVII of 1934). The plaintiffs contended that the mortgagors were members of a joint Hindu family and as Sita Ram one of the mortgagors was assessed to income-tax the mortgagors were not agriculturists as defined in S. 2(2) of that Act and, therefore, could not claim the benefit conferred on the agriculturists by that Act. The trial Court, by its Judgment dated March 31, 1939 held that though Sita Ram was assessed to income-tax for the year 1931-32, the amount of such income-tax did not exceed the amount of cess payable on the land held by him and consequently the second proviso to Section 2 (2) did not apply to him and he was, therefore, an agriculturist and as the other mortgagors were also agriculturists all of them were entitled to the benefits under the Act. Accordingly, after scaling down the interest, a sum of Rs. 9,497-14-1 was declared to be due for principal, interest and costs up to March 31, 1939 and a preliminary mortgage decree for sale was passed in that suit.