M. SUNDARESAN CHERTIAR Vs. A. MUTHUVELAVENDAN NADAR

JUDGEMENT

(1.) THE plaintiff in O.S. 299 of 1968 on the file of the Court of the Subordinate Judge, Coimbatore, is the appellant herein. The appellant instituted the suit against the defendant for recovery of the sum due under Ex. A -1, promissory note, dated 17 -4 -1964, for Rs. 10,000, executed by the respondent in favour of the appellant. The suit was decreed as prayed for with costs, but with interest as per the Madras Act IV of 1938. In the appeal the only question that is raised is whether the respondent was entitled to the benefits of the Madras Act IV of 1938. This question has been dealt with by the learned Subordinate Judge, in paragraph 10 of his judgment under additional issue. This question was raised by the respondent by way of an additional written statement filed by him. The learned counsel for the appellant relies on an affidavit filed by the respondent herein on 26 -8 -1969, wherein he stated that he had been given notice of assessment in which the income from his wife's property was included and that he had appealed against the same and he was likely to succeed.

(2.) THE learned counsel for the appellant contends that in the light of this admission of the respondent he was not an agriculturist within the meaning of Madras Act IV of 1938, and he was not entitled to the benefits of the Act. I am unable to accept this argument. The definition of the term 'agriculturist' is to be found in Section 3 (ii) of the Act. Under Section 3 (ii) (a) a person having a saleable interest in any agricultural or horticultural land in this State will be an agriculturist. It is not disputed in this case that the respondent had a saleable interest in agricultural land in the State. However, the question is whether the respondent falls within the scope of Proviso (A) to Section 3 (ii) of the Act and therefore he was not entitled to the benefits of the Act.

(3.) I have appealed against the same and I am likely to succeed. Thus, the above averment in paragraph 3 of the affidavit of the respondent would not bring the case within the scope of the proviso to Section 3(ii) of the Act. It is not disputed that there is another evidence to show that the respondent came within one or other of the provisos to Section 3 (ii). It has been settled by the Privy Council as well as by this Court that the burden of proving that a person who has a saleable interest in agricultural land comes within the scope of one or the other of the provisions is on the creditor. The Privy Council in Veerayya v. Sivagami Achi. AIR 1949 PC 319, stated as follows: -