Patanjali Sastri, J.
1. This appeal has been brought by the defendant in a mortgage suit from a decree disallowing his claim to have the mortgage debt scaled down in accordance with the provisions of the Madras Agriculturists' Relief Act. The respondents put forward two grounds for excluding the appellant from the benefits of the Act, namely, that the appellant was disqualified under proviso C to Section 3 (ii) of the Act from claiming to be an agriculturist, and secondly, that the debt itself was exempted from the operation of the Act by Section 4 (d).
2. As regards the first ground the relevant facts are these. The appellant was assessed within the period mentioned in the proviso to tax on property of an annual rental value of Rs. 500-8-0 of which she was the sole owner. She appears to have been assessed also to house-tax in respect of a house in which she was entitled to a seventh share. Ex. G-l the certificate issued by the Commissioner, Madura Municipality, under Section 27 of the Act is defective in that it does not state that the appellant and her co-sharers were actually. assessed to such tax during the relevant period but the parties clearly proceeded in the Court below that such assessment was in fact made, and this second appeal must be disposed of on that footing. The certificate however discloses that the house in question stood in the names of the appellant and her co-sharers in the municipal register and that its annual value during the period was Rs. 647. It will thus be seen that if the properties in respect of which the appellant was assessed to tax were taken to include the house in its entirety, the aggregate rental value of such properties would be much more than Rs. 600 and the appellant would be disqualified; whereas if such properties were taken to include only the appellant's seventh share in the house the aggregate rental value would amount to only Rs. 599-15-0, which falls just below the limit specified in the proviso which would not therefore operate to exclude the appellant from the definition of an agriculturist. The Court below took the view, relying on Swaminatha Odayar v. Srinivasa Aiyar : AIR1939Mad942 . that proviso C ' 'does not deal with interest in property but with assessment to property' and held that the appellant must be taken to have been assessed to the extent of the full annual rental value of the house as she and her co-sharers were jointly and severally liable for the property tax. It accordingly refused to scale down the debt.
3. The learned Counsel for the appellant attacked the correctness of this view pointing out that the decision relied on by the learned District Judge is not applicable to the facts of this case. It must be admitted that the case of Swaminatha Odayar v. Srinivasa Aiyar : AIR1939Mad942 . has not much bearing upon the question which arises for determination here. All that it decided with reference to proviso C was that only persons who have been assessed to property tax are excluded from the benefits of the Act and that a person could not be said to be so assessed unless the assessment was made in his name. No question arises here as to whether the appellant can be said to have been assessed to property tax or not, for, admittedly the assessment was made in her name. The only question is whether in computing the aggregate annual rental value of the properties in respect of which she has been assessed, the whole annual rental value of the house in which she holds only a seventh share should be taken into account or only the proportionate share of such value. On this question the decision referred to above throws no light. The point however appears to have been recently decided favourably to the appellant by a Division Bench of this Court in C.M.P. Nos. 5740 to 5747 and 5905 to 5907 of 1941. The petitioners who claimed the benefit of the Act in that case were owners of a half share of a house which had been assessed to tax during the relevant period. The annual rental value of the house exceeded Rs. 600 but the rental value of the petitioner's share was less than that sum and the question arose whether the petitioners were excluded from the benefits of the Act by virtue of proviso C to Section 3(ii) of the Act. Abdur Rahman, J., who delivered the judgment of the Court observed:
If the words 'buildings or land' are construed to refer in the proviso C to the entire buildings or lands it is clear that the petitioners were not the owners of buildings and lands in their entirety. If, on the other hand, the words 'buildings and lands' are to be so construed as to cover a share in such buildings or land, they could certainly show that one half of the share in the property belonged to the 1st defendant and that they were not the owners of that share and could not in fact have been assessed or be rendered liable to property or house-tax for that share.... If the words buildings and lands are to include, the shares in buildings and lands, the aggregate rental value of the land must, in that case, be the annual rental value of those shares. The unit of such assessment cannot, in such cases, be regarded to be the whole of the property. It will otherwise mean that a person who happens to be an owner of an infinitesimal share in the property would be disqualified under the proviso although this was not obviously the intention of the Legislature.
Respondents' learned Counsel however, drew attention to the difference in language between proviso D which excludes from the definition of an agriculturist
a landholder of an estate under the Madras Estates Land Act, 190.8, or of a share or a portion, thereof in respect of which estate, share or portion a sum exceeding Rs. 500 is paid as peshkush
and proviso C which refers to no share or portion of a building or lands assessed to property tax, and pointed out that this marked contrast was apparently not brought to the notice of the learned Judges. The criticism is not without force and the opposite view is certainly arguable as has often been found to be the case with reference to several provisions of the Act. However that may be, the decision being that of a Division Bench and clearly in point must be taken to conclude the question in favour of the appellant.
4. The next question is whether the suit debt falls within the exemption in Section 4 (d) of the Act as being a 'debt contracted on the security of house property alone in a municipality'. The mortgage comprises five items of property of which items 3 and 5 are described in the deed as house sites (manai). The other items are either buildings and sites appurtenant to them. It. appears however that even on items 3 and 5 which are shown as sites there are buildings bearing distinct door numbers but. these superstructures belong to third parties, the mortgagor being entitled only to the sites underneath, and that was the reason why these two items were included in the mortgage as sites. The trial Court held that the mere fact that the mortgagor was. not also the owner of the superstructure could not exclude these items from the category of 'house property' and that therefore the debt was one contracted on the security of house property alone within the meaning of Section 4 (d) of the Act. The learned District Judge however thought it unnecessary to decide this question in view of his finding on the first point. Having heard arguments on the question which is one of law, I have thought it desirable to decide it now in order to obviate another appeal to this Court on this point.
5. In my judgment, the view expressed by the learned District Munsiff cannot be supported. The mortgagor having given as security for his debt only the lands referred to as items 3 and 5 and not the buildings standing thereon which, as already observed, belong to third parties, it cannot be said that he contracted the debt on the security of 'house property' so far as these items are concerned. It may be that the lands and the buildings thereon can, as a matter of classification be viewed as constituting together 'house property', but what Section 4, Clause (d) contemplates is a debt contracted on the security of house property, that is to say, a debt for which the debtor has offered as security house property belonging to him. What has been given as security so far as these two items are concerned is the land underneath the superstructures which belong to third parties and form no part of the security as is made clear by the reference to these items in the deed as sites and not houses. I am therefore of opinion that the suit debt does not fall within Section 4, Clause (d) and is liable to be scaled down in accordance-with the provisions of the Act.
6. The appeal is accordingly allowed and, the case is remanded to the trial Court for disposal according to law. The appellant will have her costs here and in the lower appellate Court. The parties will pay and receive proportionate costs in the first Court.
7. Leave refused.