Gowardhandas Surajmal Marwadi Decree-Holder v. Mohanlal Surajmal Marwadi Judgment-Debtor .

1. This is an appeal by the decree-holder against an order passed on an objection made by the judgment-debtor objecting that a certain house should not be taken in execution as it was a house occupied by him as an agriculturist and accordingly was protected by Sec. 60(1), Proviso (c). One question arises in the result, viz., is the objector an agriculturist? The other questions, viz. (2) has the house, to be protected, to be occupied by the agriculturist as such? and (3) if so, was it so occupied? do not arise, for the answer to the first question is in the negative. The general trend of opinion as expressed by the Judicial Commissioner's Court is in favour of the view that whether or not a person is an agriculturist depends upon whether he receives a substantial portion of his income from agriculture. Thus, in 26 NLR 295 (1931) 18 AIR Nag 8 , 130 IC 81 , 26 NLR 295 Macnair A.J.C decided that the term “agriculturist” includes all persons who gain a substantial portion of their livelihood by agriculture. He also decided that proviso (c) to sub-section (1), Section 60 of the CPC, refers only to those houses which are occupied for the purposes of agriculture. He laid stress on S. 60(1), proviso (b) and posed the case of an agriculturist who was also an artisan. If a man has to gain his whole living from agriculture to be an agriculturist then by parity of reasoning he would have to gain his whole living, from handicraft to be an artisan, which is absurd.

2. This apparent absurdity however over, looks the fact that whether a man follows this or that art, mystery of occupation does not depend upon the source of his livelihood but the nature of his employment which in some cases, may be very, arduous and yet not bring in any money. An example is to hand in the life of Cezanne, another in the life of Fantin Latour.

3. These starving geniuses were artists. Their slender resources were derived from house property. No one would deny that they were artists simply because their works, now each worth a fortune, would not sell. No one would class them as land owners-because their few francs were derived from the rent of some small property. They were artists because they devoted their time and thought to art. They would still have been classed as artists if they had been bad instead of good at painting pictures. Bo an artisan is a person who follows some mystery or craft. In that case the trial Judge found that the person in question was a timber merchant, factory owner, and agriculturist and therefore not an agriculturist within the meaning of S. 60 because agriculture was not his sole means of livelihood. The facts on which it was decided that he was an agriculturist do not appear. On appeal it was remitted for consideration whether the appellant derived a substantial part of his livelihood from agriculture. The actual decision we agree with. A man may be an agriculturist if he is engaged in cultivating fields though he has other employments or other sources of income. In 15 NLR 83 (1919) 6 AIR Nag 54 , 51 IC 129 , 15 NLR 83 the person claiming protection was clearly a farmer, that is an agriculturist. All that case decided (and we respectfully agree with the decision) was that if buildings are occupied by a farmer when he is farming a big farm they do not cease to be occupied by him as an agriculturist, simply because his farm shrinks to more modest proportions, if the various parts are in actual use for agricultural purposes. He need not crowd all his produce, implements and cattle into a few barns in order to clear other barns, hitherto used for the farm purposes, and thus render them attachable.

4. In 16 NLR 89, (1920) 7 AIR Nag 45 , 55 IC 481 , 16 NLR 89 Kotval A.J.C held that an agriculturist who transfers his land by mortgage or lease so as to be unable to cultivate it himself does not cease to be an agriculturist. It is a little difficult to follow the judgment, but assuming that a farmer does not cease to be a farmer simply because he has no farm yet it would Page: 368appear difficult for a person so situate to be occupying a house for the purpose of an occupation, farming, which he is not carrying on. We are not in agreement with this decision, which we overrule. In AIR 1927 Nag 374 (1927) 14 AIR Nag 374 , 102 IC 712 it was indicated by Hallifax A.J.C, that S. 60(1), proviso (c) must be read as though it ended “…… belonging to an agriculturist and occupied by the agriculturist as such.” With this we respectfully agree. He then held that a widow who has been left land which she does not cultivate but lets out is an agriculturist and occupies her house as such because it is necessary for her to live in that house to look after the subletting of the holding, that is, for the purposes of agriculture.

5. We do not agree with this and overrule it. In 29 NLR 106 (1933) 20 AIR Nag 80 , 141 IC 824 , 29 NLR 106 the learned Judicial Commissioner following 15 Nag LR 83 (1919) 6 AIR Nag 54 , 51 IC 129 , 15 NLR 83 held that an agriculturist who is employed solely in cultivating land is not to be regarded as not occupying buildings for the purposes of agriculture simply because they are more numerous than are necessary. It is little difficult to ascertain the ratio decidendi, but it would seem that it turns on the fact that all the buildings were being used by an agriculturist as such and though he could have crowded his implements, etc. into some only of the buildings the principle enunciated in 15 Nag LR 83 (1919) 6 AIR Nag 54 , 51 IC 129 , 15 NLR 83 applied. If this is so, we respectfully agree. In AIR 1935 Nag 59, (1935) 22 AIR Nag 59 Gruer A.J.C (as he then was) decided that the house or building must be proved by the judgment-debtor to be occupied or required for agricultural purposes. He had not to consider what constitutes an agriculturist. The above appear to exhaust the Nagpur decisions which are all of single Judges. In Madras the matter was considered by a Bench in 49 Mad 227. South Arcot, (1926) 13 AIR Mad 350 , 92 IC 398 , 49 Mad 227 , 50 MLJ 90 It is quite obvious that Waller, J. regarded occupation, not income, as the test. We do not know where Devadoss, J. got his etymological meaning from, but we would prefer to follow Webster and define an agriculturist as one engaged or skilled in agriculture or a husbandman or (according to the Oxford Dictionary) a farmer (not being a stock or dairy farmer): In short, one who is engaged in or skilled in cultivating fields. Such a person may do the work through others. But he must either engage himself in such work or direct others in the doing of it.

6. That case supports the view (for which 7 Bom 530 (1883) 7 Bom 530 is relied upon) that the house or building must be occupied by the agriculturist as such. We respectfully agree with the view expressed by Waller, J., in that case. We are not able to agree with the restriction of the term ‘agriculturist’ to small holders and manual cultivators. A farmer in a large way of business is, in our view, no less an agriculturist than a peasant proprietor. A zamindar who owns land and lives by rent is not an agriculturist not because his lands are wide but because he is a man who owns, as distinct from a man who cultivates, land. One does not cultivate land if one lets lands. The mere fact of letting precludes the lessor from having any say in the mode of cultivation. He can, but rarely in India does, make provision in the lease for certain things to be done, but after the lease is executed he has no right whatever to interfere. In AIR 1916 Cal 891 (1916) 3 AIR Cal 891 , 35 IC 343 , 20 CWN 874 it was indicated that by ‘agriculturist’ is meant “the common agriculturist such as lives in (this country), that is, the raiyat who tills the field.”

7. There the persons claiming protection were engaged in the jute business and as middlemen and “had a small cultivation in land.” Apparently the learned Judges relied on 12 Bom 363 (1888) 12 Bom 863 which was also relied on in 49 Mad 227 South Arcot, (1926) 13 AIR Mad 350 , 92 IC 398 , 49 Mad 227 , 50 MLJ 90 at p. 229, where it was observed that this protection was designed for agriculturists in the strictest sense. The Calcutta case (which is very scantily reported) appears to have gone on the view that the person must be a raiyat to be protected. With this we are unable to agree. In 41 Bom 475 (1917) 4 AIR Bom 263 , 39 IC 639 , 19 Bom LR 281 , 41 Bom 475 it was held that a person who has become a mere labourer is, being a person engaged in cultivating the soil, an agriculturist though he owns no land and is not a tenant. We respect-fully agree. Such a person is engaged in agriculture.

8. There are a group of cases from Allahabad, viz. AIR 1935 All 292, (1935) 22 AIR All 292 , 153 IC 511 , 1935 ALJ 306 AIR 1928 All 211 (1928) 16 AIR All 211 , 116 IC 20 and AIR 1927 All 214. (1927) 14 AIR All 214 , 99 IC 376 The last case, which decides that “occupation” is a wider word than “residence” does not touch this case. AIR 1928 All 211 (1928) 16 AIR All 211 , 116 IC 20 doubted 35 All 307 (1913) 35 All 307 , 19 IC 125 , 11 ALJ 437 where it was decided that if id is a zamindar letting lands and a farmer cultivating lands, the question whether he was an agriculturist depends upon whether he got most from his letting or his cultivating. With respect, we share this doubt. In the case put A would be an agriculturist, in our opinion, but whether a house occupied by him was protected or not would depend on whether he was occupying it as agriculturist or as zamindar or otherwise. In AIR 1935 All 292 (1935) 22 AIR All 292 , 153 IC 511 , 1935 ALJ 306 the facts were that the person claiming protection was employed as a steward. He had some land which was cultivated by hired labourers. It does not appear from the report whether the steward directed the labourers' activities or not. It was held he was not an agriculturist.

9. The various cases from Lahore are referred to in AIR 1936 Lah 737, (1936) 23 AIR Lah 737 , 164 IC 690 , 38 PLR 333 AIR 1928 Lah 132 (1928) 15 AIR Lah 132 , 106 IC 45 and AIR 1930 Lah 1034. (1930) 17 AIR Lah 1034 , 130 IC 419 , 12 Lah 367 , 31 PLR 842 In the first named, Coldstream, J. held that an agriculturist is a professed cultivator of land, a farmer or husband, man. He further held that the term does not exclude a large land-owner or a person who does not depend solely or mainly on cultivation but that a person who does not himself till land and earn his living thereby, wholly or partly, is not an agriculturist. Broadly speaking, we are in accord with this. We would however respectfully vary it by making employment and not income the sole test and by adding that the tilling may be done by employed, persons so long as the person claiming protection directs their activities, i.e is a farmer. That case also decided, and with this also we respectfully agree, that a landowner having khudkast (home farm) land is not a cultivator if he lets those lands to tenants and cultivates nothing himself. In AIR 1928 Lah 132 (1928) 15 AIR Lah 132 , 106 IC 45 it was held that a person who owns lands and lets it out on the batai system is not an agriculturist. Again we agree, for it seems to us that the only difference between that and letting on the usual lease is that in the former case the rent is paid in produce and in the latter case in money. If that produce, is stored in a shed, that does not cause the shed to be used for agricultural purposes. The land would get on the same if instead of storing his produce the land-owner sold it as market and banked the proceeds. In AIR 1930 Lah 1034, (1930) 17 AIR Lah 1034 , 130 IC 419 , 12 Lah 367 , 31 PLR 842 a Bench decision, it was observed as follows:

It is settled law that in order to claim exemption from attachment or sale under Section 60(1)(b) of the CPC, it is not sufficient merely to show that the house or the site in question belonged to an agriculturist, but it must be established further that it was being used or occupied bone fide for purposes of agriculture’: see, 7 Bom 530, (1883) 7 Bom 530 12 Bom 363, (1888) 12 Bom 863 47 PR 1897 (1897) 47 PR 1897 and 65 PR 1909. (1909) 65 PR 1909 , 2 IC 983 , 104 PWR 1909 It is also beyond dispute that the onus to prove this essential fact lies on the debtor: 28 Bom 125, (1904) 28 Bom 125 , 5 Bom LR 799 35 All 307, (1930) 17 AIR Lah 1034 , 130 IC 419 , 12 Lah 367 , 31 PLR 842 AIR 1927 Lah 810. (1927) 14 AIR Lah 810 , 100 IC 104.

10. Our conclusions from the above cases and a consideration of the words used in S. 60 and generally may be stated as follows: 1. Whether a person is an agriculturist or not is not a question turning on source of income but on nature of occupation. 2. A person may have many occupations. If one of them is agriculture and for that purpose a house or building is occupied, protection can be claimed. 3. A person who owns land and lets it reserving either money or produce is not an agriculturist but a landlord. 4. A person who cultivates the land as a labourer, though neither a landowner nor a tenant, is an agriculturist. 5. If a man cultivates the land with his own hands or by means of labourers whose activities he directs he is an agriculturist whether he operates on a large or a small scale. If he has no connexion with the land except that he owns it and people work for him, he may or may not be an agriculturist according to circumstances. Applying the above to this case, it is clear Page: 370that the judgment-debtor was not an agriculturist. He owns land which he let out on batai (reserving share of produce instead of money rent). He did not cultivate any lands. The appeal is accordingly allowed with costs.

D.S/R.K

11. Appeal allowed.