RM. AR. AR. RM. AR. Ramanathan Chettiar vs VT. RM. K. Ramasami Chettiar

S. Padmanabhan, J.—The plaintiff in O.S. No.55 of 1972 on the file of the Subordinate Judge of Devakkottai is the appellant. The plaintiff

filed the suit on the foot of a promissory note for the recovery of a sum of Rs. 11,157,70. The lower Court granted the plaintiff a decree for Rs.

970.00 with interest at 6� per cent per annum from 1st March, 1972.

The facts leading to the institution of the suit may be briefly stated as follows: On 20th November, 1967 the defendant borrowed a sum of Rs.

5,000 from the plaintiff on the foot of Exhibit A-l promissory note. As on 12th June, 1969 the amount due under the promissory note dated 20th

November, 1957 (Exhibit A-l) was Rs. 8,484.95 after giving credit to certain payments made by the defendant evidenced by the endorsements on

the note. On 12th June, 1969 itself the defendant executed a fresh promissory note for the sum of Rs. 8,484.95 due under Exhibit A-l. A copy of

the said promissory note is marked as Exhibit A-8, as the original is stated to be lost. He agreed to pay interest at 14 annas per hundred per month

to the plaintiff. Thereafter no amount was paid by the defendant towards the amount due under Exhibit A-8.

The defendant filed a written statement. He admitted the execution of Exhibit A-8 promissory note. According to him that was executed at a

time when Exhibit A-l was about to get time-barred. He also stated that the suit was not maintainable and the suit was barred by limitation. He filed

an additional written statement. He plended therein that he was entitled to the benefits of the Tamil Nadu Agriculturists Relief Act IV of 1938 as

amended by Act VIII of 1973. He stated that for Exhibit A-l he had paid Rs. 2,000 on 26th August, 1960, Rs. 10 on 18th September, 1960 Rs.

10 on 20th June, 1963, Rs. 10 on 30th April, 1966 and Rs, 2,000 on 12th April 1967. According to him if he is given the benefits of the Act, the

balance due would only be Rs. 1,000.

The plaintiff filed a reply statement in which he stated that the defendant is not an agriculturist and not entitled to the benefits of Act IV of 1938.

The trial Court found on issue No3 that the defendant is an agriculturist and that is entitled to the benefits of the Act. Following the decision of

this Court in Ramanathan Chettiar v. Oomanathan Chettiar (1974) 87 L.W. 103, the trial Court held that the plaintiff is not entitled to claim interest

prior to 1st March, 1972. After giving credit to the payments made by the defendant to the credit of Exhibit A-1, promissory note, the trial Court

passed a decree in favour of the plaintiff for Rs. 970 with interest at 6� per cent per annum from 1st March, 1972.

In this appeal the plaintiff has challenged the finding of the trial Court that the defendant is an agriculturist and is entitled to the benefit of Act IV

of 1938. Mr. Narasimhan for the appellant-plaintiff submits that the defendant has not filed any document of title or patta to show that he has

saleable interest in any agricultural land within the meaning of Act IV of 1938, as amended by Act VIII of 1973. The learned Counsel submits that

the only documents relied upon by the trial Court are the kist receipts for faslis 1376, 1378, 1379 and 1380, Exhibits B-l to B-4. In the submission

of the learned Counsel, kist receipts alone will not be sufficient to prove that the defendant has a saleable interest in an agricultural land. Secondly,

the learned Counsel submits that even assuming that Exhibits B-l to B-4 are taken into consideration by this Court, there is no evidence to show

that the petitioner was an agriculturist either on the date of Exhibit A-l dated 20th November, 1957 or on 12th June, 1969, the date of Exhibit A-

8, the renewed promissory note, even assuming that the date of Exhibit A-8 would be the relevant date for consideration. Equally, there is no

evidence to show that the defendant was an agriculturist on 1st March, 1972 or on the date of the institution of the suit. For this proposition Mr.

Narasimhan, relied upon the Full Bench decision in Pappathi Ammal alias Nallammal Vs. Nallu Pillai, .

Mr. V.S. Ramakrishnan, for the defendant, on the other hand, strenuously contended that there is no reason at all why Exhibits B-l to B-4

should not be accepted, as they contain the patta numbers and the name of the defendant. He further pleaded that the property is part of an inam

estate and, therefore, there could not be any document of title. According to Mr. Ramakrishnan, it is unnecessary for the debtor to show that he

was an agriculturist as on the date of the incurring of the debt which, according to him, in this case was on 12th June, 1969, and that the Full Bench

decision in Pappathi Ammal alias Nallammal Vs. Nallu Pillai, , did not apply to a case under Sections 7 and 8 of the Act but was concerned only

with Section 13 of the Act.

It is assumed for the purpose of this case that the incurring of the debt was on 12th June, 1969 and not 30th November, 1957. Admittedly, no

kist receipt relating to that date has been filed. Therefore, there is no evidence adduced by the defendant that he was an agriculturist on 12th June,

1969. Faced with this situation, Mr. Ramakrishnan contended that it is not necessary for the purpose of Sections 7 and 8 of the Act for a debtor to

show that he was an agriculturist on the date on which the debt was incurred. According to the learned Counsel, it would be sufficient if the debtor

proved that he was an agriculturist on 1st March, 1972. He attempted to distinguish the decision in Pappathi Ammal alias Nallammal Vs. Nallu

Pillai, , on the ground that that case was concerned with an application u/s 13 of the Act. No doubt the case before the Full Bench was one u/s 13

of the Act. There the debtor, who owned agricultural lands outside the Municipal limits of Karur, created two mortgages over them on 19th June,

1947 and 17th November, 1947 to secure two sums of Rs. 3,000 and Rs. 4,000 with interest at 9 per cent per annum on the loans. On the dates

of the mortgages, it was conceded,. that the debtor was an agriculturist entitled to the benefits of the Act as the lands were situate outside the

Municipal limits. But subsequently and before the date of the action, these lands were brought within the Municipal limits. On the question whether

the debtor could still claim to be entitled to the benefits of the Act as he was no longer an agriculturist on the date of the proceedings for the

recovery of the debt. Ramachandra Iyer, C.J., speaking for the majority, held as follows:

In order to entitle a debtor to claim relief u/s 13, he must be an agriculturist as defined in the Act on two crucial dates (1) on the date of the debt,

(as otherwise it will not be a debt incurred by an agriculturist) and (2) on the date of recovery thereof through the process of Court, (as otherwise

there would be no proceedings for recovery of a debt as defined by the Act).

It has to be noted that before the Full Bench it was conceded that the debtor was an agriculturist entitled to the benefits of the Act on the dates of

the mortgages.

The question whether the Full Bench decision in Pappathi Ammal alias Nallammal Vs. Nallu Pillai, , would apply to a case under Sections 7 and

8 of the Act came directly for consideration before Natarajan, J., in Tulasi Ammal and Ors. v. Thasu R. Sami Iyer (1977) 90 L.W. 413 : I.L.R.

(1976)1 Mad. 254. In the case before Natarajan, J., the plaintiff filed a suit for the recovery of a sum of Rs. 4,363 due under a registered

mortgage dated 1st September, 1968. The defendants pleaded that they were agriculturists and were consequently entitled to the benefits of Act

IV of 1938 as amended by Act VIII of 1973. In support of their contention that they were agriculturist, they filed a registered othi deed, Exhibit A-

l dated 20th March, 1969. The trial Court accepted the defence and dismissed the suit. On appeal by the plaintiff, the Subordinate Judge of

Ramanathapuram at Madurai held, following the decision in Pappathi Ammal alias Nallammal Vs. Nallu Pillai, , that if the defendants were not

agriculturists on the date when the debt was incurred, they were not entitled to the benefits of Act IV of 1938 as amended by Act VIII of 1973.

The defendants took up the matter to this Court in second appeal. Before Natarajan, J., on behalf of the defendants it was contended that the

decision in Pappathi Ammal alias Nallammal Vs. Nallu Pillai, , would not be attracted to the facts of the case. It was pleaded that the Full Bench

case was decided with reference to Section 13 of Act IV of 1938, whereas the second appeal had to be decided with reference to Sections 7 and

8 of Act VIII of 1973. Natarajan, J., after considering the Full Bench decisions and also certain other decisions, held that the principle laid down in

the Full Bench case equally applied to the case under Sections 7 and 8. The learned Judge observed as follows:

In such circumstances, I am not persuaded to accept the argument of the appellant''s counsel and hold that the conditions laid down in Pappathi

Ammal alias Nallammal Vs. Nallu Pillai, , 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 lend to ludicrous results. Even a non-agriculturist can, subsequent to incurring the

debt, acquire interest in a small piece of agricultural land and then claim the benefits of exemption under the Act. Surely, the intention of the

Legislature was not to confer 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 agriculturists all through till proceedings were instituted

for recovery of the debt.

Then, after referring to the Explanation to the proviso to Section 13, the learned Judge observes as follows:

From the wording it can be clearly seen that the date of incurment of the debt would be the crucial date for determining whether a person was an

agriculturist or not. It is with reference no 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 agriculturists 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 the date

the debt was incurred. In that view of, the matter also, the contention of the appellants must be held to be an untenable one.

I, therefore, follow the decision of Natarajan J., referred to above and hold 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 date of recovery thereof through process of Court. In this case, admittedly,

there is no evidence that the defendant-debtor was an agriculturist on the date of Exhibit A-8.

After the introduction of the amendment Act VIII of 1975, the defendant has also to prove that he was an agriculturist as on 1st March, 1972.

This is not disputed by Mr. Ramakrishnan. Even for this, there is absolutely no evidence. Exhibits B-l to B-4 do not correspond to this date. In the

circumstances, there is no evidence to prove that the defendant was an agriculturist either on 1st March, 1972 or on the date he filed the suit in the

lower Court.

Mr. Narasimhan, draw my attention to the decision of Balasubrahmanyan, J., in Kunjammal v. M.A. Khader (1978) T.L.N.J. 170, wherein

the learned Judge has held that the kist receipts by themselves cannot be regarded as evidence establishing a saleable interest of the respondent in

the lands for which he had paid kist. In view of the finding that Exhibits B-l to B-4 do not correspond to the relevant dates, with reference to which

will arise the question for consideration whether the defendant is an agriculturist or not, there is no necessity to pursue this question further.

Mr. V.S. Balakrishnan, finding at the close of the argument that no evidence has been let in to show that the defendant was an agriculturists on

the crucial dates to entitle him to have the benefit of Act IV of 1938, as amended by Act VIII of 1973, wanted art opportunity to enable the

defendant to produce the documents to show that he was an agriculturist as on the relevant dates. The suit was filed in 1972. The suit was decided

only on 28th February, 1974. Whatever records the defendant has, to show that he was an agriculturist on 12th June, 1969 and 1st March, 1972

must have been available with him even prior to the institution of the suit. However, he did not care to file those documents into Court during the

trial. The appeal in this Court was filed in 1975. Even during the last two years he did not care to file the documents in the appellate Court. At the

time when the defendant finds that on the basis of the documents which he elected to file in the trial Court and on the basis of which he elected to

take a decision from the Court, below, were not sufficient to sustain the judgment of the trial Court, he cannot be allowed to plead that he has

other documents with him and that he may be allowed to produce the same. The provisions of Order 41, Rule 27, Civil Procedure Code, are not

meant to enable either party to the suit to fill up the gaps in the evidence or to better their case in the appellate Court when once they find that the

evidence which they had chosen to let in the trial Court is found by the appellate Court to be insufficient to justify their case. In the circumstances, I

do not find any merit in the belated plea of the counsel for the defendant either for an opportunity to produce additional documents in this Court or

to remand the case for a fresh finding on the question by the trial Court.

In the result, I hold that the defendant is not an agriculturist entitled to the benefits of Act IV of 1938 as amended by Act VIII of 1973. He is,

therefore, not entitled to have the debt scaled down in terms of the provisions thereof. I, therefore, set aside the judgment and decree of the trial

Court. The appeal is allowed.

In the normal course of evidence the plaintiff would have been entitled to a decree in terms of the plaint. However, in the memo. of valuation of

the appeal he has valued the same at Rs. 12,684-40. This amount is inclusive of interest on principal amount from 1st March, 1972 to 30th June,

1974 which is the date of filing of the appeal. After valuing the appeal at Rs. 12,684.40, he has restricted his claim only to Rs. 7,500 in the appeal.

He has also paid the Court-fee only on the said amount of Rs. 7,500. In the circumstances he will be entitled to a decree only for Rs. 7,500.

Mr. Narasimhan, submitted that he will be entitled to interest on the amount Rs. 7,500 from the date 1st March, 1972. Mr. Ramakrishnan,

counsel for the defendant submitted that the plaintiff will be entitled to interest on Rs. 7,500 only from 30th June, 1974, the date of filing of the

appeal. Mr. Ramakrishnan is right in his submission. In valuing the appeal at Rs. 12,684.40. the plaintiff has taken into account the interest from 1st

March, 1972 to 30th June, 1974 and then restricted his claim to Rs. 7,500. In the circumstances, the plaintiff will be entitled to interest only from

the date of filing of the appeal, 30th June, 1974. Accordingly the suit is decreed, for an amount for Rs. 7,500 with interest at the rate of 6% of per

annum from 30th June, 1974 the date of institution. No order as to costs.

The defendant-respondent has filed a memorandum of cross-objections. It relates to the costs awarded by the trial Court, in that, according to

the defendant, full costs should have been ordered. It was not pressed at the time of the hearing. Hence it is dismissed.