1. The appellant was the plaintiff in a suit on a mortgage Ex A, dated 11th March, 1941. That mortgage renewed a previews promissory note, Ex. F, dated 26th January, 1930, and included also a fresh cash advance of. Rs. 280-3-0. Ex. F was executed by the defendant as heir of his deceased father in discharge of a previous promissory note debt Ex. E dated 1st July, 1926, For Rs. 1,000 executed by the defendant's father. The lower Court has scaled down the debt under Act IV of 1938 on the footing that the defendant can trace back his liability not merely to his father's note, Ex E, of 1926 which he himself discharged but also to the prior documents discharged by the father himself.
2. The question of the position of a legal representative of a deceased debtor under the explanation to Section 8 of the Act is one which is not free from difficulty. In Nagabhushanam v. Venkayya : AIR1941Mad854 , it was held that a legatee who discharged the debt of a testator who was not an agriculturist, having died before the operative period contemplated by the definition under Act IV of 1938, could not claim to have renewed the testator's debt as that was not a debt due from an agriculturist. This decision was followed by a Bench in A.A.O. No 487 of 1941. It is however contended before us that the position of an heir is different and that the doctrine of property liability formulated in Perianna's case, Perianna v. Sellappa : AIR1939Mad186 must be applied to the heir. We are impressed with this contention and we are inclined to think that the position of an heir, at any rate, when he has taken up the inheritance is somewhat different from the position of a mere legatee. Although, no doubt, the legatee may by circuitous methods be forced to discharge the debts of the deceased testator it can scarcely be said that he is under a direct liability merely by reason of his acceptance of a legacy. The heir, on the other hand, when once he has taken up his inheritance can be directly made liable for the debts of the deceased holder of the property to the extent of the inheritance in his hands. We find it very difficult to hold that in such circumstances the heir is not under a property liability which must come within the definition of ' debt' under Act IV of 1938 provided that the heir is an agriculturist. There are in fact observations in Perianna's case which lead directly to this conclusion. If so much is conceded it follows in the present case that the defendant when he executed the promissory note of 1930 in discharge of his deceased father's promissory note of 1926 was in fact and in substance discharging not his father's debt, but his own debt, imposed upon him by the inheritance which he had taken up. To this extent then he is clearly entitled to say that his debt under the promissory note of 1926 was renewed by the promissory note of I930.
3. We do not think, however, that the debt can be traced further back. The wording of the explanation to Section 8 of the Act makes it clear that the process of scaling down must begin with that which is a debt, and a 'debt ' under the definition of Section 3 of the Act is a liability due from an agriculturist. The father of the defendant died in 1930. He cannot, in the light of our decisions, be deemed to have been an agriculturist, for he did not live long enough to qualify for that status by the process contemplated in the Act. It follows therefore that 'the first debt in this series which can be really a debt due from an agriculturst is Ex. E of 1926 which though executed in the first instance by a non-agriculturist became the liability of an agriculturist by the inheritance of the properties of the deceased by the defendant imposing upon him the liability to discharge the deceased's debts.
4. In this view, the plaintiff will have a decree on the usual mortgage form for Rs. 1,280-3-0 being the principal amount of Ex. E, plus the cash advanced under Ex. A, with statutory interest from 1st October, 1937, with proportionate costs here and in both the lower Courts. The defendant will have costs prqportionate to his success here and in both the lower Clourts.
5. Time for redemption three months.