G. Ramunujam, J.
1. This appeal is directed against a laconic and non-speaking order passed by the lower Court directing the scaling down of a mortgage debt.
2. The appellant herein obtained a mortgage decree for a sum of Rs. 40,416.66 in O. S. No. 34 of 1971 on the file of the Sub-Court Thanjavur on the basis of a mortgage bond, dated 12th February, 1961 against defendants 1 to 5, the legal representatives of the original mortgagor, the 6th defendant, who claims to have purchased the equity of redemption in respect of item 1 and a shop in item 2 of the suit properties. After the passing of the decree, the 6th defendant alone filed an application on 12th September. 1974. under Section 19 of Act VI of 1938 as amended by Act VII of 1973, for scaling down the decree debt on the ground that she is an agriculturist. Her claim that she is agriculturist was disputed by the decree-holder, the appellant herein. According to the appellant, the 6th defendant was not an agriculturist at any time, much less on the date of the original mortgage debt.
3. In support of her claim that she is an agriculturist, the 6th defendant produced Exhibits A. 1, A. 3 and A-4 Exhibit A-1 is a kist receipt for fasli 385 corresponding to the year 1975. Exhibit A-3 is a sale deed of the year 1970 and Exhibit A-4 is the patta issued in respect of the property purchased under Exhibit A-3. Thus all the documents produced by the 6th defendant to prove that she is an agriculturist relate to the period subsequent to 1970. Based on these documents, the Court, below held that as on the date of the application for scaling down under Section 19, the 6th defendant was an agriculturist and therefore she is entitled to the benefits of Act IV of 1938 as amended by Act VIII of 1973 in view of the decision of N. S. Ramaswami, J. in Govindammal and Anr. v. Saradambal and Ors. (1976) 89 LW 181. The said order of the Court below has been challenged in this appeal by the appellant mortgage-decree-holder.
4. According to the learned counsel for the appellant, before a debtor could claim the benefits of Act IV of 1938 as amended by Act VIII of 1973, he should establish that he was an agriculturist on three relevant dates, namely (1) on the date of the debt; (2) on the date of the suit for recovery of the debt and (3) on the date of the application for scaling down that debt under Section 19 and the decision in Govindammal and Anr. v. Saradambal and Ors. (1976) 89 LW 181 does not in fact support the view taken by the Court below and it is in error in holding that the 6th defendant is entitled to the benefits of the said Act on the basis of the said decision. The learned counsel for the appellant submits that the said decision of N. S Ramaswami, J. in Govindammal v. Saradambal (1976) 89 L. W. 181 which has been followed by the Court below cannot be understood as laying down that it is sufficient for a debtor to be an agriculturist on the date of the application to claim the benefits of the Act and that in that case the learned Judge held that as the applicant for scaling down had not been shown to be an agriculturist on the date of the application, she cannot maintain that application, On a perusal of the said judgment, it is seen that the learned Judge after referring to the decision of the Full Bench reported in Papathi Ammal (alias) Nallamal v. Nallu Pillai 2.ILR (1964) 1 Mad 536 : (1963) 2 MLJ 294 : 77 LW 14 : AIR 1964 Mad 173 held that an applicant for scaling down under Section 19 seeking the benefit of the amending Act VIII of 1973 has to prove that he was an agriculturist on the date of the application 'as well'. The significance of the words 'as well' used by N. S. Ramaswami, J in his judgment has been overlooked by the Court below. The Court below has proceeded that if the applicant for scaling down shows that he or she was an agriculturist on the date of the application, that is sufficient to entitle him or her to claim the benefits of the Act. This view of the Court-below cannot at all be sustained in the face of the decision of the Full Bench referred to above. It has been laid down by the Full Bench that in order to entitle a debtor to claim relief under Section 13 of the Madras Agriculturists Relief Act IV of 1938, he must be an agriculturist as defined in the Act on two crucial dates (1) on the data of the loan as otherwise it would not be a debt incurred by an agriculturist, and (//) on the date of recovery thereof through the process of Court, as otherwise there would be no proceeding for recovery of debt as defined by the Act. N. S. Ramaswami, J has held that in addition to showing that the debtor was an agriculturist on the crucial dates referred to above as held by the Full Bench, he must also be an agriculturist on the date of the application as well. Thus the decision of N S. Ram swami, J. clearly proceeds on the basis that a debtor before be claims the benefits of Act IV of 1938 as amended by Act VIII of 1973, must show that he is an agriculturist on three dates, the date of the debt, the date when the debt is sought to be recovered and the date when the application is made by the debtor for scaling down. The view taken by the Full Bench has been followed and applied by Natarajan, J , in Tulasi Ammal others v. Thasu R. Sami Iver ILR (1976) 1 Mad. 254 : (1977) 90 LW 413 and by Padmanabhan, J. in RM. AR AR RM. AR. Ramana(sic)han Chettiar v. VC. RM. K. Ramaswami Chettiar (1979) 92 LW 762 In this context, it is prudent to note the following observations of Ramachandra Iyer, C J. speaking for the majority, in the Full Bench decision referred to above:
In order to entitle a debtor to claim relief under Section 13, he must be an agriculturist as defined in the Act on two crucial dates (1) on the date of debt (as otherwise it will not be a debt incurred by an agriculturist) and (2) on the date of recovery thereof though the process of Court (as otherwise there would be no proceedings for recovery of a debt as defined by this Act).
5. Natarajan, J. applying the Full Bench decision to a case arising under sections 7 and 8 of the Amending Act VIII of 19/3 observed:
I am not persuaded to accept the argument of the appellant's counsel and hold that the conditions laid down in P. (sic)pathi Ammal v. Nallu Pillai : AIR1964Mad173 for a person to invoke the benefits of the Act would not apply to the facts of the case on hand If the contention of the appellants is to be accepted then it would lead to ludicrous results. Even a non-agriculturist can, subsequent to incurring the debt, acquire interest in a small piece of agriculture land and then claim the benefits of exemption under the Act. Surely, the intention of the legislature was not to coafer the benefits of the Act on such a class of persons. The Act was intended to apply only to genuine agriculturists who had an interest in agricultural lands at the time of incurring the liability and continued to be an agriculturist all through till proceedings were instituted for recovery of the debt....
From the wording it can be clearly seen that the date of incurring of the debt would be the crucial date for determining whether a pesson was an agriculturist or not. It is with reference to this date, the Court will have to find out whether a person had been assessed to income-tax or profession tax or house tax etc., and decide whether the debtor is an agriculturist or not. The obvious inference, therefore, is that the intention of the legislature was to confer the benefits of the Act only on persons who were agriculturists, except those referred to in the proviso, on he date the debt was in(sic)crred. In that view of the matter also, the contention of the appellant must be held to be an untenable one.
Thus Natarajan, J. in Thulasi Ammal and Ors. v. Thasu R. Sami Iyer ILR (1976) 1 Mad 254 : 90 LW 413 clearly lays emphasis on the necessity of the debtor being as agriculturist on the date of the debt. Padmanabhan, J. who followed the decision of the Full Bench as well as the decision of Natarajan, J referred to above held that it is necessary for a person who claims the benefit of the Act to show that he was an agriculturist on the date of the debt and on the recovery thereof through process of Court.
6. Admittedly, in this case, the respondent, who had purchased the equity of redemption in some of the items, had produced evidence only to show that she was an agriculturist at the time of the filing of this application. It is true, the 6th defendant was not a debtor on the date of the original debt, as she became the owner of the equity of redemption only later. As pointed out by the Supreme Court in Nageswarasami v. Viswasundara : 4SCR894 .
The liability of a purchaser of the equity of redemption to pay the mortgage debt undoubtedly arises on the of date his purchase; but the debt itself which has its origin in the mortgage bond did exist from before his purchase, and if it was payable by as agriculturist at the relevant date, the purchaser could, certainly claim the privileges of the Act if he him self was an agriculturist at the date of his application.
The material question, therefore, is whether the mortgage debt was a debt due by an agriculturist on the date of the mortgage. The respondent contends that as the said mortgage debt was in relation to agricultural lands the original debtors were certainly agriculturists on the date when they borrowed the amount on mortgage I do not think there is any warrant for any such assumption on the materials on record. The only question urged before the Court below was that the respondent was an agriculturist on the date of her application. These was no question raised nor any evidence adduced as to whether the original mortgagor was an agriculturist on the date of mortgage or whether defendants 1 to 5 who are the legal representatives of the original mortgage, or were agriculturists. As a matter fact defendants 1 to 5, the legal representative of the original mortgagor were agriculturists As a matter of a fact defendants 1 to 5, the legal representatives of the original mortgagor have not claimed that the original mortgagor was an agriculturist, nor have they adduced any evidence to show that they are agriculturists. Therefore, even if it is taken that the respondent has established that she was an agriculturist on the date of her application, on the basis of the documents adduced, it is not possible to hold that the debt was payable by an agriculturist on the date of the mortgage debt. It may be that the mortgaged properties were agricultural lands but it is not known whether the mortgagor did possess other estates which might bring him within the purview of any of the provisos attached to the definition of 'agriculturist''. In these circumstances, the respondent must be deemed to have failed to show that the original debt was payable by an agriculturist and that the original debtor was an agriculturist on the date of the debt, that is on 12th February, 1961.
7. In this view of the matter, the appeal is allowed and the order of the lower Court is set aside and the application for scaling down filed by the respondent will stand dismissed. There will be no order as to costs.