E A SRIRAMAYYA Vs. D ASWARTHANRAYANA GUPTA

JUDGEMENT

(1.) A.S. Nos. 277 and 278 of 1965 are appeals against the decrees in O.S. Nos. 9 and 10 of 1962 on the file of the court of the Subordinate Judge, Anantapur the respective plaintiff in each suit being the appellant in the corresponding appeal. The plaintiff in O.S. No.10/62 . The defendants in the two suits are common. O.S. No.9/62 is laid on a promissory note dated 4-4-1961 (Ex. A-1) executed by late Dhonthi Bhimayya Chetty of Hindpur for a sum of Rs.10,000.00 O.S. No.10/62 is laid on a promissory note dated 5-4-61 (Ex. A-5) executed by late Donthi Bhimayya Chetty for a sum of Rs. 10,000.00. The defendants in the two suits are the members of the joint family of which late Donthi Bhimayya Chetty was the manger before he died on 24-11-1961. It is the case of the plaintiffs that late Donthi Bhimayya Chetty borrowed a sum of Rs. 10,000.00 in cash from each of the plaintiffs on 4-4-1961 and 5-4-1961, respectively. According to the defendants no amount was borrowed in cash on 4-4-1961 or 5-4-1961. The original debt of which Exs. A-1 and A-5 are renewals was borrowed in 1954 under Ex. B-121. In order to circumvent the provisions of the Agriculturists Relief Act promissory notes used to be taken sometimes in the name of the father i.e., the plaintiff in O.S. No.10 of 1962, sometimes in the name of the son i.e., the plaintiff in O.S.No.9/1962 and sometimes in the name of a partnership, known as Sri Rama Oil Mills, of which the father and son were partners. The defendants claim that they are agriculturists and that they are entitled to the benefits of the Agriculturists Relief Act. They claim, that the debt should be reopened and traced back to the original debt of 1942. The principal question raised before the lower court and the only question raised before me is whether the defendants are entitled to the benefits of the Agriculturists Relief Act and whether the debts are liable to be reopened and traced back to 1954. The learned Subordinate Judge held that the defendants were entitled to the benefits of Section 13 and 13-A of the Agriculturists Relief Act and that the debts were liable to be reopened and traced back to the year 1954, the date of the Original debt. The learned Subordinate Judge held that the continuity and identity of the debt from 1954 has been established. On those finding the learned Subordinate Judge granted a decree for Rs. 5,704-82 in each case with proportionate costs.

(2.) In these appeals Sri Bhujangarao, learned counsel for the appellants urges that the defendants shave failed to establish the continuity and the identify of the debt of 1954 with the debts due under the suit promissory notes. On the other hand he urges that the evidence indicates that the continuity was broken and the debts were distinct,. There is no substance in this submission of Sri Bhujangarao. One has only to consider the chronology of the transactions as spoken to by the plaintiffs themselves to come to the conclusion that the defendants have successfully established the continuity and identity of the debt. (The judgment then considers the chronology of the transactions, and salient features such a charging interest as if there was no break in the period and the non availability of funds with defendants to make the payments entered in plaintiffs accounts and holds): I have therefore no hesitation in confirming the fiddling of the learned Subordinate Judge that the continuity and indignity of the debt had been established.

(3.) The next and the more formidable submission of Sri Bhujangaraois that the defendants are not entitled to the benefit of Ss. 13 and 13-A of the Agriculturists Relief Act. It is not in dispute before me that defendants have salable interest in agricultural land and that they are agriculturists within the meaning of Section 3 (ii) (a) of the Agriculturists Reliefs Act. It is however contended on behalf of the plaintiffs that the defendants are not entitled to the benefit of Section 13 as they are excluded from such benefit by the explanation to Section 13. The defendants on the other hand urge that they are entitled to the benefit of Section 13 and S. 13-A of the Act. Sections 3 (ii), 13 and 13-A in so far as they are relevant are as follows:- "3(ii) Agriculturist means 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 peshkash and quit rent) or which is held free of tax or recognised by Government; or xxxx Provided that person shall not be deemed to be an Agriculturist if he- (A) has in both the financial years ending 31/03/1938 been assessed to income-tax under the Indian Income-tax Act, 1922 or under the Income-tax laws of Indian State. (B) has in all the four half years immediately preceding the 1/10/1937 been assessed to profession-tax on a half yearly income of more than six hundred rupees derived from a profession other than agriculture under the Madras District Municipalities Act 1920, the Madras City Municipal Act, 191, the Cantonments Act 1924 or any law governing Municipal or local bodies in any other state in India or any foreign state in the continent of India or under the Madras Local Boards Act, 1920 in a Panchayat which was a Union before the 26/08/1930; or (C) has in all the four half-years immediately preceding the 1/10/1937 been assessed to property or house tax in respect of building or lands other 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 State in Indian or under the Madras Local Boards Act 1920 in a panchayat which was a Union before the 26/08/1930 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 Rupees 600/- or xxxx 12. In any proceedings for recovery of a debt, the court shall, scale down all interest, due on any debt incurred by an agriculturist after the commencement of this act, so as not to exceed a sum calculated at 61/2 per cent per annum simple interest that is to say one pie per rupee per mensem simple interest, or one anna per rupee per annum simple interest; Provided that the State Government may by notification in the Official Gazette alter and fix any other rate of interest from time to time. Explanation- For the purpose of this section the definition of agriculturist in Section 3 (ii) shall be read as if (I) in proviso (A) to that section for the expression the financial years ending 31/03/1938 The expression "the financial year ending on the 31st March immediately preceding the date on which the debt is incurred" we substituted and (ii) in provisos (B) and (C) to that section, for the expression the four half-years immediately preceding the 1/10/1937 the expression "the four half years ending on the 31st March or the 30th September (whichever is later) immediately preceding the date on which the debt is incurred." were substituted." 13-A. Where a debt is incurred by a person who would be an agriculturist as defined in Section 3 (ii) but for the operation of proviso (B) or proviso (C) to that section the rate of interest applicable to the shall be the rate applicable to the debt shall be the rate applicable to it under the law, custom, contract or decree of court under which the debt arises or the rate applicable to an agriculturist under Section 13, whichever rate is less." It is not disputed before me that the defendants paid profession tax on a half-yearly income of more than Rs.600.00 during the four half-years immediately preceding the date of the original debt as well as the dates of the promissory notes. It is also not disputed before me that the defendants paid property tax in respect of buildings whose aggregate annual rental value exceeded Rs. 600.00 during the four half-years preceding the date of original debt as well as the dates of the promissory notes. The defendants therefore clearly fall within the second part of the explanation to Section 13 and that means that they are not entitled to the benefit of the provisions of Section 13. However it is urged on their behalf that Section 13-A of the Act which was introduced by the Amending Act of 1948 enables the defendants to claim the same relief. But Section 13-A in terms applies only to persons who though agriculturists are not considered to be agriculturists because of proviso (B) or proviso (C) to Section 3 (ii) (a) that is because they have paid profession tax on half yearly income of more than Rs.600.00 or paid property tax in respect of buildings whose rental value exceeded Rs. 600.00 during the four half-years preceding 1-10-1937. It does not in terms apply to agriculturists who are not agriculturists because of the second part of the explanation to Section 13, that is because they have paid profession tax on half-yearly income of more than Rs.600.00 or paid property tax in respect of buildings whose rental value exceeds Rs.600.00 during the Four Half years preceding the Debt. Thus while Section 13 expressly excludes such persons from its benefits Section 13-A does not in terms apply to them. The result is that neither S. 13 expressly excludes such persons from its benefits Section 13-A does not in terms apply to them. The result is that neither S.13 not S.13-A is attracted to the case of the defendants. I have come to this conclusion with some diffidence but it appears to me to be unavoidable. Sri E. Ayyapureddy, learned counsel for the respondents invites my attention to two decision of the Madras High Court; Venkatanarayana Rao v. Savansukha, (1951) 2 Mad LJ 530=(AIR 1952 Mad 126) and Kuitalai Bank Ltd. v. Nagamanickam, (68 Mad LW 6740 = (AIR 1955 Mad 670). In the first case Rajamannar, C.J. and Venkatarama Ajyar, J. held that Section 13-A dealt only with one subject-matter, namely the rate of interest payable by certain persons though they were not agriculturists within the definition contained in Section 3 (ii) read with the provisos and that Section 13-A did not deal with any other matter. The decision does not have any application to the present case . In the second case Mack, J., after referring to Section 13-A of the Act said