Singh, J. - (1.) THESE two appeals have been heard together, as the matters involved in these two appeals ate more of less common and the parties to the appeals are also the same. These appeals arise out of two suits, one instituted by the plaintiffs -appellants under Section 33 of the U.P. Agriculturist's Relief Act and the other instituted by the respondents on the basis of a mortgage deed dated the 2nd September, 1933.
(2.) IT appears that Debi Prasad, since deceased, and the appellants, who are his sons and grandson, executed a mortgage on the 2nd September, 1933, in favour of one Sahib Din Tewari, the deceased predecessor of the respondents. On the 16th July, 1946, the appellants instituted a suit for accounting under Section 33 of the Agriculturist's Relief Act and this was suit No. 24 of 1946. A few days later on the 30th July 1946, the respondents, who are the successors in interests of Sahib Din Tewari mortgagee also instituted a suit for the recovery of the amount due on the mortgage. Both these suits were heard together by the Civil Judge Sultanpur. The main questions which arose for consideration in these two suits were if the plaintiffs in the suit under Section 33 of the Agriculturist's belief Act were agriculturists within the meaning of the Act and as such entitled to relief under the act and whether the appellants were entitled to get my relief after a declaration under Section 4 of the Debt Redemption Act had been made by the mortgages in the suit instituted by them. It was not disputed that the mortgagees who are the respondents in the two appeals, before us had made a declaration under Section 4 of the Debt Redemption Act. The learned Civil Judge found that of the four mortgagors it has not been established that Krishnadas mortgagor No. 4, was an agriculturist and as such the other executants of the mortgage, although they were agriculturists, had become disentitled to the relief under the Agriculturist's Relief Act. He also held that as a result of the declaration made by the mortgagees under Section 4 of the Debt Redemption Act, the appellants could not get relief under the Debt Redemption Act also. He, therefore, decreed the claim of the mortgagees for Rs. 10,000/ - with costs and dismissed the suit under Section 33 of the Agriculturist's Relief Act. Against both these decrees the present appellants have come up in appeal.
(3.) THE first point which arises for determination in these two appeals is whether Krishna Das, who was one of the mortgagors who joined in executing the mortgage dated the 2nd September, 1933, was an agriculturist. The learned counsel for the appellants urged that as Debi Prasad was an agriculturist and Krishna Das was the grandson of Debi Prasad, he should also be deemed to be an agriculturist. It is not known whether the property which was mortgaged or held by Debi Prasad was the ancestral property of Debi Prasad or had been acquired by him. If the property had been acquired by Debi Prasad, his grandson would not get any interest in this property in the lifetime of Debi Prasad and as such he would not be an agriculturist. There is nothing on the record to establish that Krishna Das was an agriculturist and it is laid down in the proviso to Section 2(2) of the Agriculturists' Relief Act that in any transaction of loan, save for the purpose of adding his name as security, the agriculturist shall not be considered as such for the purpose of that transaction. The plaintiffs in the suit under Section 33 of the Agriculturists' Relief Act could not, therefore, be held to be agriculturists in order to get relief as agriculturists under the Act.;