1. This case raises a question under the explanation to Section 8 of Act IV of 1938. The defendant was the sole legatee under the will of one Pitchayya who appears to have died about the end of 1935. Pitchayya shortly before his death had executed to the plaintiff a promissory note (Ex. V) dated the 17th August, 1935, which was itself a renewal of an earlier promissory note and he was also indebted to the plaintiff under a separate promissory note (Ex. IV) of 13th September, 1933. After Pitchayya's death, the defendant under the will became entitled to his estate and also liable to discharge the debts and on 13th January 1936, he executed a consolidated promissory note (Ex. A) in favour of the plaintiff discharging Pitchayya's notes (Exs. IV and V). In the suit on Ex. A, the question was raised whether the debt had to be scaled down under Section 9 as one arising in 1936 or whether the defendant by virtue of the proviso to Section 9 could treat the debt as a renewal of the earlier indebtedness of Pitchayya, calling in aid the explanation to Section 8.
2. There is, I think, no Bench decision as yet on the question whether the legatee can be deemed to be the same debtor as the testator whose estate the legatee has taken. But assuming for the moment that he can, the question arises whether Pitchayya's debt was a debt within the definition in Section 3 (iii) of Act IV of 1938. A Bench of which I was a member held vide Krishna-swami Aiyar v. Nagalinga Mudaliar : (1940)2MLJ174 , that in order to take advantage of the explanation to Section 8, the debtor must show that the antecedent debt of which the suit debt is alleged to be a renewal was a debt within the definition of the Act, that is, a debt due from an agriculturist. In a more recent case (C. R. P. No. 597 of 1939 Devarayan Chettiar v. Subramania Aiyar : AIR1941Mad829 the same Bench had to consider the effect of that decision with particular reference to the point of time at which the antecedent debtor must have been an agriculturist. That was a case in which the debtor at the time of the proceedings before the Court was an agriculturist, but was alleged to have acquired that status by a purchase of land in May, 1937 and he claimed the right to treat as a renewal the discharge of a previous debt due from himself and others, the date of which debt was anterior to May, 1937, and the contention was raised that at the time of this antecedent debt he was not an agriculturist and therefore by reason of Krishnaswami Aiyar v. Nagalinga Mudaliar : (1940)2MLJ174 , there could not be a renewal within the meaning of the explanation to Section 8. We held that this objection was unsustainable and that for the purpose of finding out whether the antecedent debtor was or was not an agriculturist, regard must be had to the state of affairs subsisting on 1st October, 1937, and thereafter, the reason being that the definition of an agriculturist includes certain provisos which relate, only to the financial status of the alleged agriculturist during the two years anterior to 1st October, 1937, and it is impossible to apply this definition to the state of affairs existing before the time when those provisos would be effective. Now applying the logic of that decision to the present case, we find that the petitioner ' claims that his promissory note (Ex. A) is a renewal of two earlier promissory notes executed in 1933 and 1935 by the testator Pitchayya who died in 1935. It cannot be said that Pitchayya was an agriculturist at the time of his death, for by that time the state of affairs contemplated in the definition of an agriculturist had not come into being. It seems to follow therefore that it is impossible to show that these antecedent debts of the testator were debts due from an agriculturist. For all we know, had Pitchayya continued to live for another two years, he might have been assessed to income-tax or had to pay profession-tax or incurred one or other of the disqualifications contemplated in the definition. It follows therefore that the debtor is not able to show that the antecedent debts were debts due from an agriculturist within the definition of the Act and that the suit debt cannot be treated as a 'renewal' of those previous debts so as to import the benefits of the explanation to Section 8. The debt must therefore be scaled down as a fresh debt coming under Section 9, which is what has been done by the Court below. I wish to make it clear that I am not concerned with what would have been the case had Pitchayya lived long enough to make the definition of an agriculturist applicable to him, and I express no opinion on the question whether in such a case a legatee who was obliged to pay his testator's debt could or could not claim that a fresh document in discharge of the testator's debt was a renewal thereof.
3. The petition is dismissed with costs.