Iqbal Ahmad, C.J.
1. This is an appeal by a judgment-debtor and arises under the following circumstances. Two brothers Oudh Behari and Kunj Behari executed a deed of simple mortgage on 12th September 1932, in favour of Mt. Mahmoodunnisa Bibi, respondent in the present appeal. The mortgage was for a sum of Rs. 8000 and the property mortgaged consisted of village Ibrahimpur and shares in two villages Khanpur and Dostpur. Again on 8th March 1934, Oudh Behari executed a simple mortgage in favour of Mahmoodunnisa Bibi for Rs. 1200 mortgaging portions of shares of the three villages named above. Thereafter on some date, which does not appear from the record, Oudh Behari executed a deed of gift with respect to a portion of his share in Ibrahimpur in favour of his mistress, Mt. Shyam Dei who is the appellant in the present appeal. It is common ground that portions of the three villages were sold to certain transferees by mortgagors and portions of the debts due under the two mortgages were left with various transferees for the partial discharge of the two mortgages, Kunj Behari and Oudh Behari, however, retained portions of the mortgaged property and the burden of the mortgages continued on those portions.
2. On 15th October 1940, Mahmoodunnisa put the two mortgages into suit. She impleaded the two mortgagors, the transferees as well as Mt. Shyam Dei as defendants to the suit. The suit culminated in a decree for sale which was passed on 25th April 1941.
3. When Mahmoodunnisa proceeded to execute the decree Shyam Dei claimed the benefit of the Debt Redemption Act (13 [XIII] of 1940). She prayed for reduction of interest by amendment of the decree in accordance with the provisions of Section 8 of the Act. This prayer was refused by the Court below and we are no longer concerned with that prayer in the present appeal. Shyam Dei further objected that, in view of the provisions of Section 17 of the Act the share gifted to her could not be sold in execution of the decree. This contention of Shyam Dei was overruled by the Court below. Being aggrieved by this order of the Court below she has preferred this appeal.
4. A number of points of varying importance were raised by the counsel for the parties at the hearing of this appeal but, in the view that we take, it is unnecessary to either deal with or to express any opinion as regards those points. It is an admitted fact that the transfer in favour of Shyam Dei by Oudh Behari was by means of a deed of gift. It appears from the evidence in the case that the gift was executed some time before 1st June 1940. It is, therefore, clear that Shyam Dei is an agriculturist within the meaning of this definition of that word in the Debt Redemption Act. It has been held by a Bench of this Court in Aittar Singh v. Mahabir Pal Singh : AIR1944All213 that a transfer by means of a gift cannot be a transfer by which the liability of the borrower is transferred to another person within the meaning of Section 2(9), Debt Redemption Act. Loan is defined by Section 2(9) of the Act as meaning
an advance in cash or kind...recoverable from an agriculturist...or from the property of an agriculturist...but does not include an advance the liability for the payment of which has, by a contract with the borrower or his heir or successor...been transferred to another person....
In this case it is not disputed that the decretal amount is recoverable from the property of an agriculturist and as the transfer in favour of Shyam Dei was by means of a deed of gift, it cannot, in view of the decision just referred to, be held that the liability for the payment of the mortgage debt was, by a contract with the mortgagor, transferred to Shyam Dei. The decree under execution is accordingly a decree relating to a loan or in other words is a decree to which the Debt Redemption Act applies. That being so Mi. Shyam Dei is entitled to the benefit of the provisions of the Debt Redemption Act.
5. It is not disputed that the local rate payable by Mt. Shyam Dei does not exceed Rs. 25. This property covered by the decree which is in her hands is accordingly protected property and is not liable to sale by virtue of the provisions of Section 17 of the Act.
6. The result is that we allow this appeal, set aside the order of the Court below and give effect to the objection of Shyam Dei about the protection of her property from sale. This decision, however, will in no way prejudice the right of the decree-holder to pray for a self-liquidating usufructuary mortgage in her favour. The appellant is entitled to her costs.