JUDGMENT Malik, C.J.
1. This is a defendant's appeal, and the plaintiffs have filed a cross-objection.
2. On 30th April 1935, a mortgage was executed by the defendants in favour of Joshi Damodar Ji, the ancestor of the plaintiffs. The mortgage was for a lac of rupees and the amount was payable with interest at 10 annas per cent. per mensem according to the Hindi calendar. A sum of Rs. 15,690 was paid towards interest and the suit was filed for recovery of Rs. 1,30,080/13/4.
3. The defence was that the defendants were agriculturists and the plaintiffs were creditors and the defendants were, therefore, entitled to the benefits given under the Agriculturists' Relief Act. It was further pleaded that the plaintiffs had not maintained proper accounts as required, nor had they sent the accounts to the defendants and the plaintiffs were, therefore, not entitled to claim interest and costs. The plaintiffs filed a replication in which it was denied that the defendants were agriculturists or were entitled to the benefits of the Agriculturists' Relief Act.
4. The lower Court has found that the defendants were agriculturists on the date of the loan, that is, 30th April 1935, and also on the date of the suit, i. e., 1st April 1941. The learned Judge has mentioned that it was admitted that the plaintiffs were creditors. The plaintiffs did not maintain accounts, nor did they send any copies of accounts, as required by Section 32. The result was the lower Court disallowed all interest and cost and decreed the plaintiffs' suit for the recovery of Rs. 1,00,000 with pendente life and future interest at Rs. 3/4 per cent, per annum. The defendants filed this appeal and on behalf of the defendants it was claimed that the amount should be further reduced. The appeal was valued at Rs. 15,690, the amount that had been paid by the appellants towards interest. The lower Court has held that under Section 34, U. P. Agriculturists' Relief Act the defendants are not entitled to claim a refund. All that the Court can do, if accounts have not been properly maintained and copies of accounts have not been sent to the defendants, under the Act is to disallow interest due upon the loan, and, if interest has been paid and therefore is not due, Section 34 does not enable the Court to read just the account and credit the amount towards the principal. Section 34, Sub-section. (b) is as follows :
"If the Court finds that the provisions of Clause (a) of Section 32 (1) have not been complied with by the creditor, it may, if the creditor's claim is established in whole or in part, disallow the whole or a portion of the interest found due, as it may deem reasonable in the circumstances of the case, and shall disallow the creditors' costs,"
The amount of interest that was due on the date of the suit was Rs. 30,080-13-4 and the whole of this was disallowed by the learned Judge.
5. Argument of learned counsel for the appellant is that under Section 30, Sub-section (4) if any amount has been received as interest in excess of interest due when calculated in accordance with the provisions of Section 30, the amount shall be credited towards the principal. He has urged that the rate at which the interest should have been calculated under Section 30, Agriculturists' Relief Act, was 61/2 per cent, simple, and Rs. 16,690 the amount paid by him, should be deemed to be payment towards two years interest as the interest at the rate given in the mortgage deed came to Rs. 7,500 per annum. He has, therefore, said that the difference should be taken towards the principal. Learned counsel was not, however, able to give us the date or dates on which the sum of Rs. 15,690 was paid, and, in the absence of further information about the dates of payments, it is not possible for us to hold that at the time when the amount was paid the amount due as interest must have been calculated at the rate given in the Agriculturists' Relief Act and must have been less than Rs. 15,690. The lower Court has disallowed the whole of the interest due under Section 34 and also costs. We do not see how the defendant can claim any thing more.
6. Learned counsel has relied on certain single Judge decisions of this Court, Chhaddami Lal v. Har Sarup, 1943 A. L. J. 374 : (A. I. R. (30) 1943 ALL. 305) and the case of Abdul Rahman v. Chakkan Lal, civil Revn. No. 133 of 1946, decided by Seth J. on 6th May 1949. These decisions are under Section 39 of the Act and stress is laid on the language of Section 39, that no interest shall accrue on a loan taken after the Agriculturists' Relief Act came into force but not evidenced by a written document and of which a copy had not been given to the debtor. It is said that if no interest had accrued due, then the payments must be taken to be payments towards the principal. We are not concerned with the interpretation of Section 39 of the Act and it is not, therefore, necessary for us to express any opinion. Apart from the fact that, in our view, the interpretation placed by the lower Court on Section 34 is correct, the point is covered by a Bench decision of this Court in Tula Ram Chaudhari v. Debi Datt Chaudhari, A. I. R. (36) 1949 ALL. 498, in which it was held that Section 34 (o) would entitle the Court to disallow interest for the year in which the provisions of Section 32 (1) (b) had not been complied with only if the interest had not already been paid and was due. There is, therefore, no force in this contention and we are of the opinion that the decision of the lower Court on this point is correct.
7. Learned counsel has asked for instalments and has urged that, the lower Court having held that he is an agriculturist, the amount should have been made payable by instalments. The case was filed as far back as 1st April 1941 and was decided by the lower Court on 7th April 1943. Six years have already elapsed and no sufficient reason for granting fresh instalments are made out.
8. The plaintiffs have filed a cross-objection which they have valued at Rs. 30,000 and it is claimed that the defendant was not an agriculturist on the date of, the loan and he was, therefore, not entitled to the benefits given under the U. P. Agriculturists' Relief Act. Learned counsel has further urged that the plaintiffs were not creditors. No such ground was, however, taken, and, in view of the statement contained in the judgment that it was admitted before the lower Court that the plaintiffs were creditors, we cannot allow learned counsel to raise this point.
9. Coming to the question whether the defendant is an agriculturist, learned counsel has filed before us an account and has urged that in paper No. 244C, at page 28, the defendant has in. eluded in the chart the local rate payable not only by himself but by certain other co-sharers. The amount, which it is said, is payable for the share belonging to other co-sharers comes to Rs. 21-14-9. The paper was handed over to us and to the learned counsel for the appellants during the course of the arguments and, there, fore, learned counsel had no opportunity to check the figures. The argument has, however, mainly centred round one village Sanjhauli. In a Khewat of the year 1342 Fasli, the defendant is said to be a mortgagee of 8 annas and a thekedar of the other 8 annas. The Khewats are divided into 4 parts, the main Khewat being Khewat No. 1. The other three are very small areas probably in the possession of plot proprietors. In the application filed on behalf of the plaintiffs, paper No. 213C dated 2lst January 1943, it is mentioned that the defendants own a half share and are the thekedars of the remaining half. Learned counsel for the parties were-not able to make it clear how and when the defendants became hissedars of half when their names were recorded in 1342 Fasli merely as mortgagees. Learned counsel for the plaintiffs has urged that the BS 43 shown as the local rate payable for Sanjhauli Mahal 61 is for the whole 16 annas, while the defendant being a thekedar of only half, he should have mentioned the local rate payable for the portion of which he was the thekedar. Our attention has been drawn to the definition of the word "agriculturist" in Section 2, Sub-section (2)(b), U. P. Agriculturists' Relief Act, which is to the effect that a person who in the districts subject to the Benares Permanent Settlement Regulation, 1795, pays a local rate under Section 109, District Boards Act, 1922, not exceeding Rs. 120 per annum. There are, however, several provisos to the sub-section and the first proviso is to the effect :
"that in Sections 2 (10) (a), 3, 4, 5, 8 and Chaps. IV and V an agriculturist means also a person who would belong to a class of persona mentioned in parts (a) to (g) of this sub section, it the limits of land revenue, local rates, rent and area mentioned in these parts were omitted."
The limit of Rs. 120 per annum local rate mentioned in Clause (b) of Sub-section (2) of Section 2 for the purposes of this case is, therefore, not applicable, Reliance is placed on the second proviso which lays down that "no person shall be deemed to be an agriculturist if he is assessed to income-tax, which, if he belongs to any of the classes (a) to (e) above, exceeds the local rate payable on the land which he holds."
The defendants were assessed to income-tax on 20th September 1935, and the amount payable by them as income-tax was Rs. 336-10-0. The lower Court has found that the local rate payable in that year was Rs. 362-14-0. There is thus a difference of Rs. 26-4-0. Mr. Gopi Nath Kunzru, on behalf of the plaintiffs, has stated that for villages other than Sanjhauli the local rate payable on this amount of Rs. 21-14-9 is, therefore, deducted, it would make no difference in the result unless we could hold that the defendants were not entitled to include the whole of the Rs. 43 as local rate payable by them for village Sanjhauli.
10. It has been urged by learned counsel for the defendant that the amount of local rate payable by them, even as mortgagees, can be taken into consideration in coming to a conclusion whether the local rate payable by them is more or less than the amount of income-tax assessed. In Sub-section (2) of Section 2, where an "agriculturist" is defined, all that is said is that a person who pays land revenue or pays local rate. The capacity in which such payment is made is not made clear. In Clause (e), however, it is provided that a thekedar who holds a theka of land the revenue of which does not exceed Rs. 1,000 per annum, is an agriculturist. Prom the fact that a thekedar is especially provided for and not a mortgagee, some inference can be drawn that the Legislature did not want to give the benefit of the Act to a mortgagee as such. This is made further clear by the provisions of Section 8, which are to this effect:
"that, if a person had a subsisting interest in land, but, by reason of a temporary transfer or for any other similar reason, does not for the time being pay any rent or revenue in respect thereof, be will not merely by reason of such non-payment cease to be an agriculturist."
A mortgagor executing a possessory mortgage of his property could, therefore, continue to claim to be an agriculturist, even though he had made a temporary transfer of possession of the property. If it had been intended that a mortgagee should also be entitled to claim the benefit of the Act, some provision "would have been made to that effect. Apart from that, a mortgagee does not pay land revenue or local rate on his own behalf bat merely as an agent of the mortgagor. Under Section 76, T. P. Act, Act IV [4] of 1882, a mortgagee in possession, in the absence of a contract to the contrary, is liable to pay Government revenue and all other charges of a public nature out of the income of the property in his possession. The payment is, therefore made on behalf of the real owner of the property and the mortgagee is entitled, in the absence of a contract to the contrary, to have the amount adjusted in the account and paid by the mortgagor. We are, therefore, of the opinion that the amount of local rate, if any, paid by the defendant as mortgagees of Sanjhauli should not be included in the amount of local rate payable by them. Neither counsel was able to place any evidence before us from which we could find whether the sum of Rs. 43 was paid for the whole 16 annas, that is 8 annas held by the defendants as mortgagees and the other 8 annas as thekedars, or the Rs. 43 was payable by them only as thekedars.
11. One more argument was advanced and it was suggested that a mortgagee is included in the word "thekedar" in Clause (e) of Sub-section (2) of Section 2, U. P. Agriculturists' Relief Act. A "thekedar" is denned in Sub-section (13) of Section 2 as having the same meaning as in the Agra Tenancy Act, 1926, i. e., a lessee of proprietary rights. In the U. P. Tenancy Act of 1939 a "thekedar" is defined as including a thekedar from a mortgagee. Section 8, U. P. General Clauses Act, 1904 (I [I] of 1904) provides that :
"Where any United Provinces Act repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construted as references to the provision so re enacted."
12. If the interpretation that we have put on the relevant provisions of the U. P. Agriculturists' Relief Act is correct, then a mortgagee by reason of his paying local rate as mortgagee would not be entitled to claim the benefit of the U. P. Agriculturists' Belief Act. According to Section 199, Agra Tenancy Act of 1926, a thekedar is a farmer or other lessee of the proprietary rights in land. This definition would not include a mortgagee or a lessee of mortgagee rights. The Legislature, therefore, could not have intended, at the time when the U. P. Agriculturists' Relief Act was passed in 1934 or when it came into force in 1936, to include a mortgagee in the word "thekedar". It will give rise to great anomaly if a mortgagee cannot claim to be an agriculturist by reason of payment of local rate for land mortgaged to him but a lessee from him could claim the benefit of the Act on the ground that he is a "thekedar" as defined in the U. P, Tenancy Act of 1939. We are, therefore, of the opinion that a reference to the Agra Tenancy Act of 1926 could not be cons, trued as a reference to the provisions of the U, P. Tenancy Act of 1939.
13. As the papers on the record do not enable us to come to definite conclusions we propose to remit the following issues to the lower Court for findings: (1) "Whether the account filed by the defendants, paper No. 244C, showing the assessment of local rate previous to 1842 and 1343 Fasli, includes items payable by them not only for their share but for the share of other co-sharers? And, if so, how much is payable by the defendants for the share of the property owned by them or of which they may be thekedars as defined above. (2) Whether the local rate of RS. 43 mentioned in this account, paper No. 244 C, is for the whole of the village Sanjhauli or for the 8 annas share in the possession of the defendants as thekedars? (3) Whether the statement of fact contained in the application, No. 213C filed on behalf of the plaintiffs on 21st January 1943, that the defendants were hissedars to the extent of half and thekedars of the remaining half, is correct: or the defendants were merely mortgagees of half and thekedars of the other half on the date of the mortgage, i. e. 30th April 1935?
14. Mr. Shankar Sahai Verma to-day wishes to argue that his clients were not paying any income-tax on the date of the mortgage. That matter will be considered after the return of the findings.
15. The lower Court will return its findings within three months from this date. The parties will have ten days to file objections. The lower Court may allow the parties to file fresh documentary evidence if it considers it necessary for the decision of the issues remitted.