K.S. Palaniswamy, J.
1. This appeal raises the question of interpretation of Section 4(d) of the Madras Agriculturists Relief Act, 1938 (Madras Act IV of 1938) (hereinafter referred to as the Act). The facts are not in dispute. The appellant, who is the first defendant, executed that suit mortgage Exhibit A-1, dated 27th July, I953 in favour of the plaintiff-respondents deceased father. Chenchiah Chettiar, for Rs. 9,000 agreeing to pay interest at 12 per cent per annum. Credit was given for Rs. 1,400, Rs. 3,000 and Rs. 1,500 said to have been paid on 15th April, 1956 10th March, 1958 and 6th April, 1961 respectively. The suit was laid for recovery of the balance, alleging inter alia that the first defendant was not entitled to the benefits of the Act as the hypotheca was a building situate within the municipal limits of Trivellore. Defendants 2 and 3 were impleaded as subsequent mortgagees. .The appellant contended that in addition to the amounts given credit to in the plaint, he had paid a sum of Rs. 1,500 on 15th September, 1964, that the hypotheca is a shop and not a house property within the meaning of the Act and that, therefore, he was entitled to the benefits of the Act. The Court below rejected both these contentions and decreed the suit. Hence this appeal.
2. So far as the plea of payment of Rs. 1,500 is concerned, the Court below rightly found that except the oral evidence of the first defendant as D.W. 1, which is sought to be corroborated by D.W. 2, who claims to have been present at the time of the alleged payment, there was nothing in writing to evidence that payment. But the plaintiff denied the payment. In the absence of any endorsement of payment on the mortgage deed, as has been done in the case of one payment of Rs. 1,400 as seen from Exhibit A-2, we are in agreement with the Court below that the plea of payment of Rs. 1,500 is not true.
3. The substantial question that was argued be fore us was as to whether the appellant-first defendant is entitled to the benefits of the Act. The contention urged is that though the hypotheca consists of a building situate within the municipal limits of Trivellore, the building is not a house property but is a non-residential building and that, therefore, the first defendant-appellant is entitled to the benefits of the Act. Section 4 (d) of the Act reads as follows:
4. Nothing in this Act shall affect debts and liabilities of an agriculturist falling under the following heads:
(d) any debt contracted on the security of house property alone in a municipality, a cantonment, or a panchayat which was a union before the 26th August, 1930.
Placing reliance upon the expression 'house property' the Counsel for the appellant contended that 'house' connotes a residential house and not a non-residential building and that inasmuch as the hypotheca in the instant case is being used as a shop, it is not 'house property' within the meaning of the said provision. We are unable to accept this argument. The expression 'house property' should be understood in the context and in the light of the object which was sought to be achieved by this enactment. The Act was enacted to provide relief to indebted agriculturists. 'Land' meaning 'agricultural land' is distinguished from house property, whether it is a residential house or a non-residential house. The purpose for which the building may be used is wholly irrelevant in considering the applicability of Section 4 (d). A building which may be residential at one time may become non-residential at another time and vice versa. If the argument of the Counsel for the appellant were to be accepted as correct, the position would become anomalous, because a person cannot be denied the benefits of the provision merely on account of the mode of user of the building. The Counsel for the appellant placed considerable reliance upon the decision of Venkata-Subbayya v. G.L. Mallappa (Deceased) and Ors. (1952) M.W.N. 675 : (1952) 2 M.L.J. 471 : A.I.R. 1953 Mad. 636. That decision docs not support the contention urged oh behalf of the appellant. In that case, one of the items of hypotheca was a vacant site without a building, but the site was suitable for building purposes. On account of that suitability it was contended that even though there was no building existing on the site, it should be construed as coming within the scone of Section 4 (d). Subba Rao, J., as he then was, rejected this contention and held that to give the benefit of the exemption, the property must be a house and that the intention to build on the site or its suitability for building purposes cannot convert a vacant site into a house property. It is pointed out that the existence of a house is essential before one can call a property as house property. In coming to this conclusion, the learned Judge referred to the decision in Row & Co. v. Secretary of State for India (1922) 67 I.C. 781, which dealt with a case under the Income-tax Act, 1918. There, the question considered was whether the buildings constructed for carrying on business were house property within the meaning of Section 8 of the Income-tax Act, 1918. In defining the words 'house property', the learned Judges, made the following observations:
To my mind, the expression, 'house property' would convey to the ordinary person the idea of buildings used for residential purposes. It is for the crown to show that M/s. Row & Company's premises are 'house property' and that can only be done by saying that property is the general word, while the expression 'house' preceding it describes the kind of property referred to.
The learned Judge Subba Rao, J., held that he agreed with the above observation. But at the same time he observed that it was not necessary to express his view on the question whether the site with a building constructed for carrying on a business is 'house property' or not. The question that arose for consideration before the learned Judge was whether a mere vacant site, though suitable for building purposes, would be a 'house property' within the meaning of the Act. The question whether a building to constitute a 'house property' within the meaning of the Act, should be a building used for) residence did not arise for consideration. In our view, the object with which Section 4 (d) was enacted was to take away the benefit of the Act to persons who contracted debts on the security of a building situate within the Municipal limits, whatever be the purpose for which the building might be used. We are, therefore of the opinion that the first defendant-appellant was rightly denied! the benefit of the Act by the Court below, as admittedly, the property is situate within the Municipal limits of Trivellore.
4. In the result, the appeal fails and is dismissed, in the circumstances, without costs.