ARUMUGHA NADAR Vs. KUMARA PILLAI

JUDGEMENT

(1.) 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.

(3.) IT is in the light of these facts the learned counsel for the appellant submits that once a debtor shows that he has got a saleable interest in agricultural lands, the onus shifts to the creditor to prove that the debtor will come under any of the provisos to the definition of "agriculturist" and that onus is not constant but again shifts to the debtor to prove that the other properties owned or the business carried on by him will not disable them from claiming the benefits of the Act. In support of the said plea the learned counsel refers to the decision of the Supreme Court in Nageswarasami v. Viswa sundara 1. In that case a mortgage debt was sought to be scaled down by a defendant who happened to be a purchaser of the equity of redemption. Though he was found to be an agriculturist on the date of the application for scaling down, the question arose as to whether the original debtor was an agriculturist on the date of the debt. IT was argued that as the mortgage debt was in respect of agricultural lands, the mortgagor should be taken to be an agriculurist. But the Supreme Court pointed out that there is no warrant for any such assumption merely on the basis that the mortgaged properties were agicultural lands, that on the facts of that case it is not known whether the mortgagor did possess any estate which would bring him under any of the provisos attached to the definition of "agriculturist" and that, therefore, in the circumstances the applicant for scaling down should be deemed to have failed to show that the original debt was payable by an agriculturist. Reference has also been made to an unreported Bench decision of this Court in Chengalvaraya mudaliar and another v. C Santhanagopala Iyengar 2 , wherein the Bench has held that if a person having a saleable interest in agricultural lands is shown to have been carrying on business in rice mill by a creditor, then it is possible to draw an inference that the debtor would have been paying profession (ax in the absence of proof by the debtor that the rice mill business is such as to not involve payment of any profession tax. Veeraswami, C. J, speaking for the Bench had observed: "the only question is whether the appellants are agriculturists. The appellants were carrying on business in a rice mill. The capacity of the rice mill is 15 H. P. From this the Subordinate Judge inferred that they would have been paying profession tax, if not any other tax. IT is contended that appellants were not paying professional tax. if that be so, it would have been very easy for them to produce the accounts before the Judge, which they failed to do. The fact that they were not paying professional tax could also be established by other means. Something was said on the question of burden. IT is never constant it shifts. Once it was established, and quite rightly too, that the appellants owned a rice mill, which was running, and they were carrying on the business in running the rice mill and when the appellants failed to produce the accounts, we cannot say that the Subordinate Judge was wrong in drawing an inference that they would have been paying professional tax. If that be so, the Judge could well bring the appellants within the proviso to section 3 (ii) of the Act. " Reference has also been made to an unreported decision of this Court in E. Radhakrishna v. M. S. A. Subrarmania Mudaliar and another 1 , wherein a creditor had contended that the debtor, in addition to his having a saleable interest in agricultural lands, was carrying on a transport business of his own by operating a bus with a route permit and therefore it is possible to infer that the debtor should have been paying profession tax for such business and as such he is not entitled to claim the benefits of Act IV of 1938 as an agriculturist, This Court, after referring to the decisions in Venkayya v. Sivagami Achi 2 ; Periaswami Pillai v. Sivathia Pillai 3 , suryanarayanamoorthi v. Satyanarayanamuthi 4and M. Sundaresan Chettiar v. A. Muthuvelavendan 5 , all dealing with the question of burden of proof, expressed the view that the onus is not always on the decreeholder to prove that the debtor is not entitled to the benefits of the Act, that the onus will shift to the judgment-debtor and the material placed before the Court by the creditor leads to the inference that the judgment-debtor would fall within any of the provisos to the definition of agriculturist and in such a case the debtor has to prove that the said inference is not possible and that he does not in fact fall within any of the provisos to the definition of agriculturist.