Govinda Menon, J.
1. Defendants 1 and 5 in O. S. No. 62 of 1943 on the file of the Court of the Subordinate Judge, Nellore, appeal against that portion of the learned Judge's decree by which relief under the Madras Agriculturists, Relief Act (IV  of 1938) had not been given in favour of defendant 5; and the question that arises for decision is whether defendant 5, admittedly a non-agriculturist is entitled to claim the benefits of Act IV  of 1938, in view of the circumstances of the present case. Defendant 1, the father and his three sons, defendants 2 to 4 are mortgagors of certain properties mortgaged in favour of the plaintiff. Defendant 4 was not actually an executant of the document. The mortgage was dated 30th October 1929. Subsequently on 4th October 1935, defendant 1 paid Rs. 5 towards the mortgage and acknowledged the existence of the debt by EX. P-1 (a). In the meanwhile, on 12th June 1933, by EX. P-4, defendant 1 made a gift of this property in favour of his son-in-law, defendant 5, There is no doubt a clause in EX. P-4 whereby defendant 1 had agreed to discharge the encumbrance existing on the property. But he did not do so on the other hand, he acknowledged the mortgage debt without paying the same. The suit filed on 17th August 1943 was opposed by defendant 5 and the principal contest in the appeal is by defendant 5 though defendant 1 is also an appellant. The question is whether defendant 5 is entitled to the benefits of the Act. The lower Court has found that defendant 1 was an agriculturist and defendant 5, not. On account of that a decree by sale of the hypotheca was passed in favour of the plaintiff for the amount claimed without giving any deduction under Madras Act IV  of 1938.
2. The question that arises for consideration is really covered by the decision of Wadsworth J., in Suganantha Mudaliar v. Kuppusami Chetti : AIR1948Mad205 , where the learned Judge held that a non-agriculturist purchaser of a hypotheca is not entitled to relief in respect of a mortgage debt under Act IV  of 1938 when the agriculturist mortgagor was not at the time when the matter came before the Court, a person liable to discharge the debt. Therefore it was held that such a purchaser was not entitled to have the debt scaled down merely because the mortgagor was at the commencement of the Act an agriculturist entitled to the benefits of the Act which benefit he has not claimed. In this connection the learned Judge referred to an earlier decision of himself and Patanjali Sastri J., reported in Viswasundara Rao v. Kusalaramayya : AIR1946Mad434 , where similar observations were made. Extracting a passage from the decision in Viswasundara Rao v. Kusalaramayya : AIR1946Mad434 , the learned Judge held that the fortuitous benefit cannot be claimed as of right by the purchaser who is not an agriculturist. It is the incidental result of a claim successfully advanced by the mortgagors. In both those cases at the time the Act came into force the mortgagor was entitled to the benefits of the Act ; but on the date when the suit was filed the mortgagor was not so entitled. That is clear from Viswasundara Rao v. Kusalaramayya : AIR1946Mad434 . Mr. Vedantachariar for the appellant tries to distinguish these oases on the ground that in both the cases, Suganantha Mudaliar v. Kuppusami Chetti : AIR1948Mad205 and Viswasundara Rao v. Kusalaramayya : AIR1946Mad434 , the mortgagor did not claim any benefit under the Act ; whereas in the present case he has claimed the benefit and that would make all the difference between those decisions and the present appeal. But in the discussion in Suganantha Mudaliar v. Kuppusami Chetti : AIR1948Mad205 , the learned Judge has stated that the mortgagors had not claimed any relief and while explaining the earlier case and stating its facts, Wadsworth J., impliedly stated that the question of the mortgagor claiming the benefit would arise only if he is legally entitled to claim it and not as in the present case where all the remedies which he had, were barred at the time of the suit.
3. Mr. Vedantachariar invited our attention to a few earlier cases, the earliest of them being Arunachalam Pillai v. Seetharam Naidu, 1941 1 M. L. J. 561 : A.I.R. 1941 Mad. 584. That laid down the general proposition that where in a suit to enforce a mortgage against an agriculturist mortgagor there is a purchaser of the whole or a portion of the equity of redemption who is not himself an agriculturist the benefits of scaling down granted by Act IV  of 1938 which a mortgagor agriculturist could have claimed would enure to the benefit of the non-agriculturist purchaser ; and in coming to that conclusion the learned Judges held that
'the purchaser in Court auction took the property subject to the burden of the mortgage and if the burden is by reason of the provisions of Section 8 of Act IV  of 1938 reduced without payment, the purchase proves to that extent an advantageous one and there is nothing in the Act to deprive the purchaser of the fruits of his lucky purchase even though he is not an agriculturist.'
Looking into the facts of that case, it is clear to us that there the mortgagor could have claimed a relief because he was not prevented by any provisions of law from claiming that and when he claimed that benefit, the non-agriculturist purchaser who stands in his shoes to a certain extent is also entitled to the same. Mr. Vedantachariar also wanted us to hold that the two decisions above referred to had been distinguished in a later decision in Kailas Tevar v. Ramasami Aiyangar : (1948)2MLJ28 , by Happell and Govindarajachariar JJ. On a close reading of this decision we find that in that particular case there was in fact an application by some of the judgment-debtors to scale down the decree which was allowed. As against one of them the application to scale down had been dismissed and, therefore, he could not have claimed the benefits of the Act. It is in such circumstances that the learned Judges say that whatever benefits accrued to the judgment-debtors who had applied, and successfully, to get relief under the Act could enure to the benefit of the other person who by some reason or other was not entitled to claim it on that particular occasion. It seems to us that that decision is also distinguishable from the facts of the present case.
4. An earlier case in Papammat v. Ramaswami Chettiar 1948 2 M. L. J. 498 : A. I. R. 1942 Mad. 726, has been brought to our notice for supporting the contention that in matters like this, the crucial date when the Court has to view the applicability of the Act is not the date when the suit is filed but on 1st October 1937 when, according to Madras Act IV  of 1938, the commencement of the Act should be deemed to have taken place. We do not think that the observations in Pappammal v. Ramaswami Chettiar : AIR1942Mad726 , can be usefully applied to the present case. In addition, our attention has been called to two other cases in Subbaraya Goundan v. Nachimuthu Mudaliar : AIR1944Mad82 and Ankamma v. Basava Punnayya : AIR1945Mad360 , the latter of them to support the contention that it is the duty of the creditor to scale down the debt himself without any kind of application or act on the part of the debtor. How far the observations of Patanjali Sastri J., in Ankamma v. Basava Punnayya : AIR1945Mad360 , are really necessary for the decision of that case we need not now go into. But the proposition which Mr. Vedantachariair contends that in all cases where the Agriculturists Relief Act has to be applied, even if the debtor does not raise his little finger or claim any benefit the creditor and the Court should take upon themselves the duty of scaling down the debt is a very wide one which would render innocuous and otiose the other decisions regarding the duty of an agriculturist debtor.
5. It seems to us, therefore, that the facts of the present case are indistinguishable from the case in Suganantha Mudaliar v Kuppusami Chetti : AIR1948Mad205 . We are in perfect agreement with the decision of the learned Judge and we find it difficult to say that that decision is wrong especially in view of the fact that it is based upon observations contained in Viswasundara Rao v. Kusalaramayya : AIR1946Mad434 , which was a decision by a Bench. In these circumstances we are of opinion that the decision of the lower Court is eight.
6. It is pointed out to us that the decree as drafted by the lower Court makes all the defendants liable to 'pay into Court on or before 31st July 1945 . . . .' As even the personal decree against defendant 1 is barred and as the properties now admittedly belong to defendant 5, the decree should be modified by stating that defendant 5 as successor-in-interest of the mortgagor do, out of the mortgaged properties, pay the amount of etc., etc.
7. With the modification indicated above, the appeal is dismissed with costs.