Malik, C.J. - (1.) This is a judgment-debtor's appeal arising out of an application for amendment of the decree under Section 8, U. P. Debt Redemption Act. The appellant, Hari Har Dut Singh executed a mortgage of joint family properties on the basis of which mortgage a suit was filed by the creditor. Shyam Narain, minor son of the appellant, was also impleaded along with the appellant as a defendant to the suit. The trial Court decreed the suit only against the half share of the property, but the suit was decreed in full by this Court in appeal. The decision of this Court was affirmed by the Privy Council.
(2.) On 9th April 1943, the appellant made an application under Section 8, Debt Redemption Act, praying that as he was an agriculturist within the meaning of that Act, the decree might be amended according to the provisions of Sections 8 and 9 of the Act. The learned Civil Judge dismissed this application on the ground that the appellant was liable to pay only half the amount and that since he was not liable to pay the whole amount due under the decree, he was not entitled to make the application. Hari Har Dut Singh has come up in appeal to this Court against the order of the learned Civil Judge.
(3.) The contention of the appellant is that the learned Civil Judge was wrong in holding that he was not entitled to apply under Section 8 for the reasons given by him. We have perused the application made by the appellant in the lower Court and we find that he applied for the amendment of the whole of the decree. The learned Judge was wrong in thinking that the appellant had applied for amendment of half of the decree only. Even though the appellant may be ultimately liable to pay half of the amount due under the decree and the other half may be payable ultimately by his son, he was certainly jointly and severally liable for the whole of the amount along with his son. The language of Section 8, therefore, did not come in the way of his making the application. Learned counsel appearing for the respondents, however, urges that the appellant was not entitled to make the application inasmuch as ten times the local rate paid by the joint family, of which ho and his son were members, was Rs. 1,700, i. e., more than Rs. 1,000, and as such he was not an agriculturist as defined in Section 2, Sub-section (3) of the Act. It is true that ten times the local rate payable by the joint Hindu family of the appellant was Rs. 1,700. The question is whether the appellant, being one of the two members of the joint Hindu family is entitled to say that notionally he was liable to pay half the amount of ten times the local rate and as such he paid less than Rs. 1,000 and was, therefore, an agriculturist. The matter has to be decided with reference to the definition of 'agriculturist' in Section 2, Sub-section (8) of the Act, read with Section 3 (e) of the Act. Section 2, Sub-section (3) runs as follows: " 'Agriculturist' means a proprietor of a mahal or of a share in or portion of a mahal or a tenant: Provided that no such proprietor or tenant shall be deemed to be an agriculturist if - (a) the aggregate of the rent, if any, and of ten times the local rate, if any, payable by him exceeds one thousand rupees, . . . . " Section 3 (d) provides: "A joint proprietor or a joint tenant shall be deemed to be the proprietor or tenant of so much of the joint property or joint tenancy, not being the property or tenancy, as the case may be of" joint Hindu family, as appertains to his share;" Section 3 (e) lays down: (e) where the aggregate of the rent and ten times the local rate, if any, payable by a joint Hindu family- (i) does not exceed one thousand rupees, such family and every member of it shall be deemed to be an agriculturist; (ii) exceeds one thousand rupees, a member of such family shall be deemed to be an agriculturist only if the aggregate of the rent and ten times the local rate payable in respect of his share and the shares of his male lineal ascendants and descendants in the joint family property does not exceed one thousand rupees . . . ." As we have stated already this is a case in which ten times the local rate payable by the joint family consisting of the appellant and his minor son exceeds one thousand rupees. Clause (d) of Section 3 expressly excludes the case of a joint Hindu family. Clause (e) of Section 3 is the only clause applicable to a joint Hindu family. The present case does not fall under Sub-clause (1) of Clause (e) of Section 8. It falls under Sub-clause (2) of Clause (e) of Section 3. Under that clause the aggregate of the rent and ten times the local rate payable by the individual concerned and his male lineal ascendants and descendants has to be taken together. Since the only other member in the joint family is the appellant's descendant, the land revenue payable by both of them has to be taken into consideration in determining whether any one of them is an agriculturist. In this view of the matter, neither the appellant nor his son can be considered to be an agriculturist. It may be stated that there is no allegation nor proof that the appellant is separate from his son and they do not constitute a joint Hindu family. It mast, therefore, follow that the appellant was not an agriculturist within the meaning of the Debt Redemption Act and as such he could not apply under Section 8 of that Act. In this connection we may refer to a Bench decision of this Court of which one of us was a member--Khusal Kunwar v. Zauki Ram, 1946 A. L. J. 310 : (A. I. R. (34) 1947 ALL. 57).;