Mohan, J.@mdashThe Plaintiff, who is the Appellant in this second appeal having partly succeeded in her relief redemption, has come forward
with the second appeal to this Court only in so car as she has been denied the right of (SIC) down. The facts which, lead to the second appeal are
as follows:
The first Defendant executed the begin in respect of the suit property in favour of the second Defendant in and by a registered document dated 1st
July 1961. (Exhibit A-2) for a sum of Rs. 2,500. The second Defendant was a minor then and, therefore, she was represented by her husband as
guardian. The second Defendant was in possession of the property since the date of began. Under a registered sale deed Exhibit A-l, dated 17th
March, 1966 the Plaintiff came to purchase the suit property, The Plaintiff and the first Defendant are agriculturists and therefore the began amount
has to be scaled down in accordance the provisions of Tamil Nadu Act IV of 1938 as amended by Act VIII of 1973. Inasmuch as the first
Defendant has been in possession of the suit property for 13 years the Plaintiff is liable to pay as per the provisions of the Act only Rs. 1,416.66.
The said amount is deposited into court and therefore, the Plaintiff is entitled to redemption.
2. The first Defendant remained expert. In the written statement filed by the second Defendant it was contended that she has paid a sum of Rs. 345
to the Plaintiffs husband and got the service connection transferred in her name. In addition to this the second Defendant had put up 13 electric
points in the house and she has spent Rs. 400. The Plaintiff is bound to pay this amounts before she is granted a decree for redemption. The
second Defendant informed the Plaintiff about the damages occurring to the property but the Plaintiff did not care to repair the same. Therefore any
claim on that score is untenable. The second Defendant has not admitted that she is entitled only to Rs. 1,416.66 as stated in the plaint. The
learned District Munsif found that the Plaintiff was entitled to redemption on payment of the principle amount due on the mortgage. In so far as the
relief of scaling down was concerned he was of the view that the Plaintiff did not prove that she was an agriculturist on the date of the incurring of
the debt and hence that relief was denied. There upon the matter was taken up in appeal in Appeal Suit No. 139 of 1976 to the court of the
learned Subordinate Judge, Cuddalore. The learned appellate Judge also concurred with the findings of the trial Judge and dismissed the appeal.
Thus arises, the present second appeal.
3. It is urged by Mr. R.S. Venkatachari, learned Counsel for the Plaintiff Appellant that the Courts below are wrong in so far as they failed to note
that the claim of the Plaintiff was under Act IV of 1938 as amended by Act VIII of 1973.. Therefore, the Courts below ought to have held with
regard to the amended provisions under Act VIII of 1973 particularly the definition to debt, the definition of agriculturist, the non-obrtante clause in
Section 7 and the relief granted u/s 9-A. As a matter of fact the claim for relief under these Acts has not been-disputed by the other side.
4. Mr. Umapathi, learned Counsel for the Defendant Respondent, states that the basis qualification for obtaining relief under Tamil Nadu Act IV of
1938 or Act Villi of 1973 would be that on the date of the incurring of the debt the claimant must been agriculturist and in the instant case the debt
was in 1961. Exhibit A-4 is dated after the suit and therefore that has been rightly rejected. The only other document on which the reliance is
placed and as a matter of fact it is admitted by the lower appellate Courts is Exhibit A-6. That document by itself does not prove that on the date
of the incurring of the debt the Plaintiff happened to be an agriculturist because it was a partition decree of the year 1968. There is nothing to prove
that even in 1961 the Plaintiff or her predecessor owned this property. Having regard to all these documents it cannot be said the basis proof or
the qualification that one must show that on the date of the incurring of the debt the claimant must be an agriculturist has been established v. Hence
the judgments and decrees of the Courts below can easily be sustained.
5. I have given my, careful consideration to the above arguments. I have also perused the judgments of the Courts below one thing appears to be
certain. By reading of provisions of Act IV of 1938 as amended by Act VIII of 1973 viz. that in order to claim the benefit under these Acts one
should prove that on the date of the incurring of the debt he must be an agriculturist. The fact that one becomes subsequently an agriculturist cannot
take within it the definition of agriculturist because even under amended Act Section 3(iii) of Act VIII of 1973 the debt that is spoken to is due
from an agriculturist. Therefore by careful reading of that section the matter appears to be simple. The debt must be by an agriculturist. At what
point of tine she has to be an agriculturist is easily discernible. It must be nothing but the date of the incurring of the debt. Therefore this basis
cannot and as of fact is not dispensed with. What about the definition of agriculturist. In my considered view all that under amended Act VIII of
1973 provided for is nothing more than to extend the benefits to few other categories of persons. That is not to say that the basic qualification viz.,
on the date of incurring of the debt one has to be an agriculturist, has been dispensed with. Now we go to Section 7. Section 7 contains the non-
obstante clause but that has nothing to do whatever with the definition of debt. It merely means inspite of the decree of the court there can be a
scaling down. For instance supposing a person has obtained a decree against an agriculturist. Even on the date of the execution of the decree it is
open to that agriculturist to seek the benefit of scaling down. Therefore Section 7 is not helpful. Equally I can say about Section 9A. I am also of
the view that in so far as there is total lack of proof that the Plaintiff is fan agriculturist. I see no scope for applying any one of these provisions. The
reason why I say there is total lack of proof that the Plaintiff Appellant is an agriculturist is because there are only two documents filed on his side.
One is Exhibit A4. That is post litem motem. The suit is filed in 1974. The document is dated 16th September 1974. Rightly, therefore, that has
been rejected by both the Courts below. Then what remains is only exhibit A 6. No doubt that is admitted as an additional evidence by the lower
appellate Court. That has not advanced the case of the Appellant any further for the very simple reason it is a compromise decree in which the
Plaintiff Appellant Was allotted certain properties. Even that does not Show that on the date of incurring of the debt the Plaintiff Appellant was an
agriculturist. Thus the conclusion is inescapable as correctly found by the Courts below, the Plaintiff is not an agriculturist. Hence I have no other
alternative but to dismiss the second appeal. This second appeal is accordingly dismissed. However, since the argument before me is on a question
of law relating to the inter predation of the provisions of Act IV of 1938 as amended by Act VIII of 1973, I make no orders as to costs in this
second Appeal.
