Full Judgment Text
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PETITIONER:
SHRIMANT APPASAHEB TULJARAM DESAIAND OTHERS
Vs.
RESPONDENT:
BHALCHANDRA VITHALRAO THUBE
DATE OF JUDGMENT:
28/10/1960
BENCH:
IMAM, SYED JAFFER
BENCH:
IMAM, SYED JAFFER
SARKAR, A.K.
DAYAL, RAGHUBAR
CITATION:
1961 AIR 589 1961 SCR (2) 163
ACT:
Watan Property--Building on watan land-- constructions
subsequent to creation of watan-Building, whether watan
property--Building belonging to an agriculturist-Liability
for attachment and sale-" Agriculturist "meaning of Bombay
Hereditary Offices Act, 1874 (Bom 3 of 1874), s. 4 Code of
Civil Procedure, 1908 (Act 5 of 1908), s. 60(1), proviso (b)
(c).
HEADNOTE:
In respect of a decree passed against T, who was the owner
of certain watan properties, a building standing on watan
land comprised in the said properties, was sought to be
attached and sold in execution of the decree. The
appellant, who was the legal representative of T, claimed
that the building:was not liable for attachment and sale
because (1) the building, being part of watan property
within the meaning of s. 4 of the Bombay Hereditary Offices
Act, 1874, was not saleable property under sub-s. (1) of s.
60 of the Code of Civil Procedure, 1908, and (2) in any
case, he was an agriculturist and the building belonging to
and occupied by him was protected from attachment and sale
by cl. (c) of the proviso to sub-s. (i) of s. 60 of the
Code. The facts showed that the building was not in
existence when the watan was first created but had been
built subsequently by one of the watandars and there was no
indication on the record that the building was constructed
for the purpose of providing remuneration for the
performance of the duty appertaining to a hereditary office.
The evidence also showed that the appellant was not entirely
dependent for his livelihood upon the income from the home
farm, that he had substantial income from other lands and
that there was nothing to show that this income derived from
his other lands was the result of cultivation by him.
Held, that the building in question was not an accession to
the land so as to partake of the character of the land on
which it was constructed and did not come within the
definition of watan property in S. 4 of’ the Bombay
Hereditary Offices Act, 1874.
Held, further (per jafer Imam and Raghubar Dayal, jj.
Sarkar, J., dissenting), that the word " agriculturist " in
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cl. (c) of the proviso to sub-s. (1) of s. 60 of the Code of
Civil Procedure, 1908, must carry the same meaning as the
word in cl. (b) and that in order that a person might come
within the meaning of the word in those clauses it must be
shown that, he was really dependent for his living on
tilling the soil and was unable to
164
maintain himself otherwise, though it was not necessary that
he must till the land with his own hands.
That on the facts the appellant was not an agriculturist
within the meaning of the word in s. 60 of the Code.
Case law reviewed.
Per Sarkar, J.-(1) On the plain meaning of the word
agriculturist " in cls. (b) and (c) of the proviso to sub-s.
(1) of s. 60 of the Code an agriculturist is any person who
occupies himself with agriculture. There is nothing in cl.
(c) to indicate that the agriculturist there mentioned must
be one who depends for his living on agriculture. A person
occupying himself with agriculture would be an agriculturist
though he did not cultivate with his own hands and carried
on, agriculture in a very large scale. He would still be an
agriculturist even if he had other means of livelihood
besides agriculture.
(2) Under cl. (c) in order that houses and buildings
belonging to an agriculturist might be protected from
attachment and sale they must be occupied by him for the
purpose of agriculture.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 716 of 1957.
Appeal from the judgment and decree dated July 29, 1955, of
the former Bombay High Court in Appeal No. 50 of 1953 under
the Letters Patent against the judgment and decree dated
September 3, 1953, of the said High Court in First Appeal
No. 547 of 1952.
H. N. Sanyal, Additional Solicitor-General of India, T. V.
R. Tatachari and M. S. K. Sastri, for the appellants.
Purshottam Trikamdas, H. R. Gokhale and R. Gopalakrishnan,
for the respondent.
1960. October 28. The Judgment of Jafer Imam and Raghubar
Dayal, JJ., was delivered by Jafer Imam, J. A. K. Sarkar,
J., delivered a separate judgment.
IMAM J.-This is an appeal against the judgment of a Division
Bench of the Bombay High Court in Letters Patent Appeal No.
50 of 1953, reversing the decision of Shah, J. and restoring
the order passed by the executing court which had been set
aside by him.
Two Questions arise for decision in this appeal (1) whether
the Wada (house) ordered to be attached by the executing
court is Watan property, and if so, can
165
it be attached in execution of a decree ? (2) If the Wada is
not Watan property, is it exempted from attachment by
virtue of the provisions of s. 60 of the Code of Civil
Procedure ?
It is necessary now to state a few facts. One Rao Ba.
Vithalrao Laxmanrao Thube, hereinafter referred to as
Laxmanrao, brought Civil Suit No. 313 of 1943 against
Tuljaramarao Narainrao Desai, hereinafter referred to as
Tuljaramarao, to recover Rs. 80,000 which had been borrowed
by him from the plaintiff. Laxmanrao’s suit was decreed on
December 20, 1943. Tuljaramarao having died his legal
representatives, the present appellants, were brought on the
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record on September 21, 1944. In April, 1949, Laxmanrao
filed an application for the execution of the decree. He
sought the attachment, with a view to their subsequent sale,
of certain properties including the Wada which is the
subject-matter of this appeal. The appellants objected to
the proposed attachment on various grounds. The executing
court on December 17, 1951, issued a warrant of attachment
only against the Wada in question. The appellants appealed
to the Bombay High Court. Their appeal was heard by Shah,
J., who by his order dated September 23, 1953, set aside the
order of attachment relying on the decision of Chagla, J.,
in second Appeal No. 760 of 1942. He, however, gave no
decision on the question whether s. 60 of the Code of Civil
Procedure gave protection to the Wada from attachment.
Against the decision of Shah, J., there was an appeal under
the Letters Patent of the High Court which was heard by a
Division Bench. The Division Bench, as already stated,
reversed the decision of Shah, J. and restored the order
made by the executing court. Subsequently, the High Court
gave a certificate that the case was a fit one for appeal to
this Court.
It is undisputed that the whole of village Nandi had been
granted as inam to the ancestor of Tuljaramarao and his
descendants as per Sanad, Ext. 54, and the Inam Patrak, Ext.
57. In that Sanad there is no mention of any Wada existing
on the Inam land. According to the executing court the Wada
166
appears to have been built after the grant. It appears
that- the opinion of the Division Bench of the High Court
was also to the same effect. There is no finding of Shah,
J., to the contrary. We must, therefore, proceed on the
basis that the Wada in question was not the subject of
the original grant. This Wada came to be constructed on the
land in the inam village of Nandi sometime subsequent to the
grant.
"What has to be decided is, do the attributes of Watan
Property " accrue to the Wada which was constructed after
the grant on land which was admittedly " Watan Property " as
defined by the Bombay Hereditary Offices Act, 1874 (Bombay
Act No. III of 1874), hereinafter referred to as the Act.
In appeal No. 760 of 1942, Chagla, J., took the view that
the house in that case was an accession to the site on which
it stood. Accordingly, it must partake of the character of
the land on which it stood. The learned Judge stated that
the question which he had to determine was whether the house
was immovable property held for the performance of the duty
appertaining to an hereditary office within the meaning of
s. 4 of the Act. Having regard to the definition of "
immoveable property " in the Bombay General Clauses Act he
was of the opinion that the house certainly formed part of
the immoveable property which was held for the performance
of the duty appertaining to the hereditary office of the
Watan and that the only answer to the question " what is the
immoveable property which is held for the performance of the
duty under section 4?" can be both the land and the house.
If the house forms part of the immoveable property it is not
possible to sever the two and to say that it is only the
land which is Watan property and not the house which is
permanently fastened to it. Shah, J., relied upon the
decision of Chagla, J., and held that the land on which the
Wada in the present case stood, being Watan property, the
Wada must also be deemed to have acquired that character.
The Division Bench which heard the appeal against the
decision of Shah, J., was of the opinion that although a
house
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167
built on land must be regarded as immoveable property it did
not follow that like the land on which it was built the
house became Watan property. The fact that a house
subsequently built became immoveable property would have no
material bearing on the question whether it was Watan
property or not. In order that the house may be regarded as
Watan property it must satisfy the test laid down by the
definition of the word " Watan Property " in s. 4 of the Act
and that if the word " held " was construed in the way in
which the learned Judges of the Division Bench thought it
should be, it would be difficult to accept the view that a
house subsequently built by a watandar on a part of the
Watan land could be said to be held by him for the
performance of his duties of a hereditary office. The
learned Judges of the Division Bench accordingly were of the
opinion that Shah, J., erred in so holding.
" Watan Property " has been defined in the Act to mean:
" The moveable or immoveable property held, acquired, or
assigned for providing remuneration for the performance of
the duty appertaining to an hereditary office. It includes
a right to levy customary fees or perquisites, in money or
in kind, whether at fixed times or otherwise.
It includes cash payments in addition to the original watan
property made voluntarily by the State Government and
subject periodically to modification or withdrawal."
The inam lands of Nandi were undoubtedly held as
remuneration for the performance of the duty appertaining to
an hereditary office and therefore were Watan properties.
On the findings of the courts below the Wada in question was
not the subject of the grant. In our opinion, therefore, at
no time was it held for providing remuneration for the
performance of the duty appertaining to a hereditary office.
Nor could it be said to have been acquired for performance
of any such duty. It had been constructed some time
subsequent to the grant either by the grantee or his
descendants and there is no indication on the record
168
that it was constructed for the purpose of providing
remuneration for the performance of the duty appertaining to
a hereditary office. To that extent at least it appears
to be clear that the Wada in question does not come within
the definition of Watan property as defined in the Act.
The only question is whether having been constructed on
land which is Watan property and being immovable property
within the meaning of the Bombay General Clauses Act, does
it partake of the character of the land on which it stood ?
On behalf of the appellants it was argued that the Wada is
an accession to the Watan property, namely, the land of
village Nandi. It seems to us, however, that construction of
a Wada on land which is Watan property is not an accession
to it, as accession to the land would suggest that over a
course of years imperceptible accretion to the land has
taken place and it was impossible to distinguish the
original land from the accreted land. In such a case the
accreted land may possibly partake of the character of the
original land. Adjacent lands to the original land which
have been acquired and can be distinguished cannot partake
of the character of the original land.
On behalf of the appellants it was argued that the right,
title and interest of the grantor had to be looked at first
in construing a grant and if it appeared from the terms
thereof that it did not contain any reservation or exception
then all the rights, title and interest of the grantor which
he was capable of granting would pass to the grantee. The
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grantor in this case was the Government which could have
built a construction on the land granted or dug tube wells
on it. The grantee, therefore, could also build a house
or any other structure on the land. On the other hand, it
was contended on behalf of the respondent that the position
of a watandar was not that of an absolute owner of the
land. He held the land on certain conditions. The land
was liable to forfeiture if he was guilty of certain acts
mentioned in s. 60 and Schedule 11 of the Act. We will
assume, there being nothing to the contrary in the
Sanad, that the grantee was not restricted from
constructing a building on the land. From that,
169
however, it does not necessarily follow that the building so
constructed became Watan property within the meaning of the
Act. If the Government could have built a construction on
the land it could also have dismantled it and removed the
material with which it was made. Similarly, the grantee
could do so, there being no restriction in that regard in
the terms of the Sanad. It seems to us that on a proper
construction of the Sanad there was no impediment in the way
of the grantee from dismantling the house which he had built
and removing the materials with which it had been
constructed and selling the same. Indeed, unless it is held
that a house constructed on the land partakes of the
character of the land, it is difficult to see how the
grantee is prevented from selling or mortgaging it but not
the land on which it stood. It seems to us, therefore, that
the Wada in the present case although immovable property did
not partake of the character of the land on which it was
constructed because it was severable from the land and was
capable of being dismantled and the materials of which could
be removed and sold without violating any of the provisions
of the Act. In our opinion, the decision of the Division
Bench of the High Court that the Wada was not Watan property
appears to be correct.
The next question for consideration is whether the Wada is
one belonging to an agriculturist and occupied by him within
the meaning of cl. (c) of the proviso to s. 60(1) of the
Code of Civil Procedure. If it is, then it is exempted from
attachment by the provisions of the proviso. It was urged
that as the word " agriculturist " has not been defined in
the Code, the word must be construed according to its
ordinary meaning. According to Shorter Oxford English
Dictionary this word can also mean a farmer. Neither the
extent of the land farmed by him nor the amount of income
derived by him from cultivating the land was a relevant
consideration in construing the word ".agriculturist "Nor
would it be right to restrict the meaning of the word "
agriculturist " to mean that an agriculturist must be a
person who himself or by the aid
170
of the members of his family tills the land and not with the
aid of employed labour. On behalf of the respondent,
however, it was contended that the word "agriculturist " in
el. (c) of the proviso must bear the same meaning as the
word " agriculturist " in cl. (b) of the proviso. It was
necessary, therefore, to construe the provisions of cl. (b)
as well in order to under. stand what the Code intended the
word " agriculturist " to mean in cl. (c). On a proper
construction of el. (b) not only an agriculturist must be
the tiller of the land but he must also be a small
agriculturist. Clause (b) was not intended to refer to a
person who cultivated a large area of land and derived from
it a large income. It was pointed out that in the present
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case the appellant Appasaheb was cultivating a very large
area of land with the aid of employed labour and derived an
income somewhere between Rs. 30,000 to 35,000 a year.
Section 60(1) of the Code states in detail what property of
a judgment debtor is liable to attachment and sale in the
execution of a decree. It was urged that but for the
proviso all the properties of Tuljaramarao other than Watan
property were liable to attachment and sale in execution of
Laxmanrao’s decree. The proviso no doubt exempted from
attachment and sale certain properties mentioned therein but
cl. (b) of the proviso clearly indicated that the object of
the Code was to save in the case of a judgment debtor his
tools as an artisan and, where he was an agriculturist, his
implements of husbandry and such cattle and seed-grains as
may, in the opinion of the court, be necessary to earn his
livelihood. It did not even exempt his agricultural produce
unless there was a notification under s. 61 of the Code
specifying by a general or special order how much of the
agricultural produce was, in the opinion of the State
Government, necessary for the purpose of providing, until
the next harvest, for due cultivation and the support of the
judgment debtor and his family. It was suggested,
therefore, that the Code intended to exempt from attachment
and sale, in the case of an agriculturist, only that much
which was necessary to enable him to earn his livelihood as
such.
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interpreted by various High Courts in India. Reference to
only some of these cases need be made. In the case of
Hanmantrao Annarao v. Dhruvaraj Pandurangrao (1) it was held
by the Bombay High Court that the word " agriculturist " in
cls. (b) and (c) of the proviso to s. 60(1) of the Code of
Civil Procedure denotes persons who are personally engaged
in tilling and cultivating the land and whose livelihood
depends upon the proceeds of such tillage and cultivation of
the soil. It does not include large landed proprietors even
though they may be tilling the land and cultivating it
through their servants. In the case of Parvataneni
Lakshmayya v. The Official Receiver of Kistna (2) a Full
Bench of the Madras High Court arrived at the following
conclusion after considering various decisions of some of
the High Courts in India:-
" We think that, having regard to the scheme of the section
exempting from attachment, as it does, tools of artisans,
and, where the judgment debtor is an " agriculturist " his
implements of husbandry and such cattle and seed-grain as
may in the opinion of the Court be necessary to enable him
to earn his livelihood, and his houses and other buildings
occupied by him, protection is intended to be given to those
who are real tillers of the land, and that an " agricul-
turist " in the section is a person who is really dependent
for his living on tilling the soil and unable to maintain
himself otherwise. Main, chief, or principal sources of
income are not, in our view, the proper tests. A man’s main
source of income may be from tilling the soil but his other
source or sources of income may be more than sufficient to
maintain him. The fact that a man’s income from tilling the
soil may be larger than his income from his ownership of
land or other sources does not seem to us to make him an "
agriculturist" within the meaning of the section. At the
same time we see no reason for depriving an " agriculturist
" of the exemption under the section because he may have
invested money in a business or businesses as alleged in the
present case and may
(1) (1946) 49 B.L.R.867.
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(2) I.L.R. [1937] Mad. 777.
172
derive some income therefrom or do coolie work and add to
his earnings in bad times. The test of sole source of
income if applied would deprive him of the benefit of the
section and we prefer the tests which we have already laid
down, viz., that he must be a tiller of the Boil really
dependent for his living on tilling the soil and unable to
maintain himself otherwise." in the case of Tirloki Prasad
v. Kunj Behari Lal (1) the Allahabad High Court held that
the test to be applied in deciding whether a person is an
agriculturist is whether his main source of income is
derived from cultivation or not. In the case of Dwarka
Prasad v. Municipal Board, Meerut (2) the same High Court
held that there was no reason for holding that cl. (b) of
the proviso to s. 60(1) applied only to the case of very
small farmers and not to the case of large farmers. Clause
(b) aimed at protecting the implements of every farmer so as
to enable him to continue to earn his livelihood in the same
way as he had been doing previously. There was nothing to
indicate that the clause was limited to small farmers. In
the case of Gowardhandas v. Mohanlal (3) the conclusions of
the Nagpur High Court were:
"(i) Whether a person is an agriculturist or not is not a
question turning on source of income but on nature of
occupation.
(ii) 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.
(iii) A person who owns land and lets it reserving
either money or produce is not an agriculturist but a
landlord.
(iv) A person who cultivates the land as a labourer, though
neither a landowner nor a tenant, is an agriculturist.
(v) 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 connection with
(1) A.I.R. 1935 All. 448. (2) A.I.R. 1958 All. 561.
(3) I.L.R. [1938] Nag. 461.
173
the land except that he owns it and people work for him, he
may or may not be an agriculturist according to
circumstances."
In the case of Nihal Singh v. Siri Ram (1) the Lahore High
Court held that the word "agriculturist " means a person who
personally engages in the occupation of tilling the soil and
derives his livelihood from that occupation and cannot (or
does not) maintain himself from other sources. On the facts
of the case that Court held that a man who merely received
rent from tenants or the income of the produce derived by
the employment of servants or partners could not be said to
depend for his livelihood upon the proceeds derived from so
engaging himself in the tillage of the soil. In the case of
Anantalal v. Bibhuti (2) the Patna High Court held that an
agriculturist was one who tilled the soil and thereby earned
his livelihood and was expected to have implements of
husbandry, cattle and seed-grain. This, however, did not
mean that he must till the land with his own hands or that
he must necessarily have his own implements of husbandry.
In any event, cultivation must be his main source of income
though this would not be the sole test. The question
whether a person was an agriculturist or not would have to
be decided with reference to the facts of each particular
case.
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In the present case the evidence of the appellant’s own
witness, Balaji, shows that Tuljaramarao had reserved some
lands for a home farm about 8 years before his death. The
area reserved was about 35 acres and that he maintained
about 12 bullocks and 8 servants. He was getting an income
of Rs. 20,000 to Rs. 25,000 a year from these lands. He
used to keep his cattle in the Wada where his servants also
stayed and his agricultural implements were kept. The pro-
duce of the lands was also stored in the Wada. Tuljaramarao
used to supervise the agricultural operations and his
servants. After his death his son appellant Appasaheb
became the owner. Appasaheb increased the acreage of the
cultivation of the home farm to about 60 acres. He has 14
bullocks and 10
(1) (1939) I.L.R. 21 Lah.23.
(2) (1944) I.L.R. 23 Pat. 348.
174
or 12 servants and the income is Rs. 30,000 to Rs. 35,000 a
year. The cattle and the produce are kept in the Wada where
he also resides. This witness also stated that the
appellant Appasaheb had inams in 4 villages. Furthermore, in
10 or 12 villages he owns lands and he gets about Rs.
35,000 to Rs. 40,000 from his lands. The said Appasabeb and
his brother sometimes worked personally in the fields. It
is clear, from this evidence, that Appasaheb is by no means
entirely dependent for his livelihood upon the income from
the home farm. Apart from the income of the home farm he
has a substantial income from other lands and there is
nothing to show that this income derived from his other
lands is the result of cultivation by him.
It was contended on behalf of the appellants that the Bombay
High Court had taken an extreme view in the case of
Hanmantrao Annarao v. Dhruvaraj Pandurangrao (1). Reliance
was placed on the decision of the Allahabad High Court in
Dwarka Prasad v. Meerut Municipality (2) where it was held
that a tractor was an implement of husbandry and it was not
subject to attachment although it was used for cultivating
an area of about 1,200 bighas of a farm. The decisions of
the Madras High Court in the case of Parvataneni Lakshmayya
v. The Official Receiver of Kistna (3), of the Lahore High
Court in the case of Nihar Singh v. Siri Ram and Others (4)
and of the Nagpur High Court in the case of Gowardhandas v.
Mohanlal (5) were also relied upon on behalf of the
appellants in order to show that to be an agriculturist a
person did not have to personally cultivate the land and
that it was immaterial whether the area cultivated or the
income derived therefrom was large or small. The real test
was, was the cultivation his main source of livelihood ? It
was submitted, on the facts of the present case, that the
appellant Appasaheb depended for his livelihood on the
income derived from the land cultivated by him and that the
Wada
(1) (1946) 49 B.L.R. 867.
(2) A.I.R. 1958 All. 561
(3) I.L.R. [1937] Mad. 777.
(4) (1939) I.L.R. 21 Lah. 23.
(5) I.L.R. [1938] Nag. 461.
175
on the land was occupied by him as an agriculturist for the
purpose of his cultivation. Such being the position the
Wada was occupied by him as an agriculturist and was
therefore exempted from attachment under cl. (c) of the
proviso to s. 60(1) of the Code of Civil Procedure.
Sub-section (1) of s. 60 of the Code of Civil Procedure
makes all saleable property, movable and immovable,
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belonging to the judgment debtor and over which he has a
disposing power liable to attachment and sale in execution
of a decree against him. In this subjection unless the
terms of the proviso came to the rescue of the judgment
debtor, all lands and houses or other buildings, goods and
money, amongst other things, belonging to him would be
liable to be attached. The Legislature, however, recognized
that it would not be expedient to leave the matter at that.
Hence the proviso. The relevant clauses in order to
determine what the word " agriculturist " means are clauses
(b) and (c) of the proviso. Under cl. (b) the tools of an
artisan are exempted from attachment. According to the
Shorter Oxford English Dictionary the word " artisan " means
a mechanic, handicraftsman or an artificer. The object of
the Legislature in exempting from attachment tools of an
artisan was obviously to leave him his tools in order to
enable him to make a living. Without his tools the artisan
would be destitute, a situation which the Legislature
intended to avoid. In the case of a judgment debtor who was
an agriculturist, the Legislature intended that his
implements of husbandry and such cattle and seed-grain as,
in the opinion of the court, were necessary to enable him to
earn his livelihood as an agriculturist should be exempted
from attachment. Here again, the intention of the
Legislature was to leave in the hands of an agriculturist
sufficient means whereby he could earn his livelihood as an
agriculturist. According to Shorter Oxford Dictionary one
of the meanings of the word " husbandry " is the business of
husbandry, that is to say, a person who tills and cultivates
the soil or a farmer. The same dictionary states that one
of the meanings of the word
176
" livelihood " is means of living maintenance. It can also
mean income, revenue, stipend. In the case of an
agriculturist his implements of husbandry must therefore
mean implements with which he tills the soil. These are
saved from attachment. So far as his cattle and seed-grain
are concerned, only that much is exempted which, in the
opinion of the court, would be necessary to enable him to
earn his livelihood and by which he could earn his
maintenance. It is to be noticed that under cl. (b) the
land which an agriculturist tills is not exempted from
attachment. The agricultural produce of the land is
exempted to the extent as notified in the Official Gazette
issued under s. 61 of the Code. On a fair reading of the
provisions of cl. (b), that which is saved to an
agriculturist are his implements with which he tills the
soil and such cattle and seed-grain which, in the opinion of
the court, are necessary for him to use in order to enable
him to maintain himself. The provisions of cl. (b) in the
case of an agriculturist, therefore, suggest a person who
tills the soil in order to maintain himself.
Under cl. (c) houses and other buildings (with the materials
and the sites thereof and the land immediately appurtenant
thereto and necessary for their enjoyment) belonging to an
agriculturist and occupied by him are exempted from
attachment. The word " agriculturist " in this clause must
carry the same meaning as the word " agriculturist " in cl.
(b) and the house must be occupied by him as such. The
object of the exemption in el. (c) apparently is that an
agriculturist should not be left without a roof over his
head. In other words, the Legislature intended by cls. (b)
and (c) to prevent an agriculturist becoming destitute and
homeless. It was, however, argued on behalf of the
appellants that there are no restrictive words in cl. (c).
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So long as it was a house belonging to an agriculturist and
occupied by him, it was exempted from attachment no matter
what other income than agriculture was earned by him. The
Wada in question was clearly occupied by the appellants for
the purpose of tilling the land of the home farm and for
storing the produce thereof, the implements of
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husbandry and tethering of cattle employed in cultivating
the land. It seems to us, on the evidence of the
appellants’ own witness, that they do not themselves till
the land of the home farm which is done by a large number of
labourers employed by them.’ Tuljaramarao did not himself
cultivate the land. He merely supervised the work of
cultivation by the labourers. The witness, however, did
state that sometimes Appasaheb and his brother worked
personally in the fields. This is a vague statement which
does not necessarily mean that they did any act of cultiva-
tion themselves. The Wada in question is a big structure
where the appellants reside but if they are not
agriculturists within the meaning of that word in S. 60, the
Wada cannot be exempted from attachment. It seems to us
that even if it is not necessary that a person must till the
land with his own hands to come within the meaning of the
word " agriculturist " he must at least show that he was
really dependent for his living on tilling the soil and was
unable to maintain himself otherwise. In the present case
it is quite obvious that even if the appellants can be
described as agriculturists in the widest sense of that
term, they are not agriculturists who are really dependent
for their maintenance on tilling the soil and that they are
unable to maintain themselves otherwise. The evidence shows
that Tuljaramarao was getting an income of nearly 20,000 to
25,000 rupees from lands cultivated in the home farm and
that the appellant Appasaheb by extending the acreage of
that farm was receiving an income of Rs. 30,000 to Rs.
35,000. In addition he had lands in 10 or 12 other villages
and his income from the lands was Rs. 35,000 to Rs. 40,000.
Assuming that these figures include the income from the
lands of the home farm, they would show that in addition to
that income he had an additional income of at least Rs.
5,000 from lands in villages other than Nandi. Furthermore,
the appellant Appasaheb is receiving a cash allowance of Rs.
700 to Rs. 800 per annum and Rs. 4,000 to Rs. 5,000 from the
village, officers of the four inam villages. In these
circumstances, it can hardly be said that the appellant
23
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Appasaheb is really dependent for his maintenance by
tilling the soil and unable to maintain himself other.
Wise. From this point of view it seems to us that he cannot
be regarded as an agriculturist within the meaning of that
word in s. 60 of the Code.
In our opinion, the decision of the High Court that the Wada
in question was not Watan property and that it was not
exempted from attachment by virtue of the provisions of s.
60(1) of the Code is correct. The appeal is accordingly
dismissed with costs.
SARKAP. J.-The appellants are the legal representatives of
one Tuljaram Desai. Tuljaram was the owner of certain watan
properties. On his death, his son the appellant Appasaheb
became entitled to them. The other appellants are the widow
and younger son of Tuljaram.
Sometime in 1943 one Vithalrao Thube obtained a decree for
Rs. 80,000 against Tuljaram. By 1949 both Tuljaram and
Vithalrao had died. The respondent is the successor in
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interest of Vithalrao.
The present appeal arises out of the proceedings for the
execution of the decree started by the respondent against
the appellants. In this appeal we are concerned only with a
wada (building) belonging to the appellant Appasaheb,
standing on watan land which the respondent seeks to have
attached and sold in execution. It is not now in dispute
that watan properties are not saleable properties and cannot
therefore be attached and sold in execution. The wada
stands on watan land and the respondent seeks to proceed
against the structure apart from the land.
The appellant Appasaheb contends that he is an agriculturist
and that wada belonging to and occupied by him is protected
from attachment and sale by cl. (c) of the proviso to sub-s.
(1) of s. 60 of the Code of Civil Procedure. He also
contends that the wada itself is watan property and is not
in view of sub-s. (1) of s. 60 liable to attachment and sale
as it is not a saleable property.
Now sub-s. (1) of s. 60 makes all saleable property ,liable
to attachment and sale in execution. The proviso to it so
far as material runs thus :
"Provided that the following particulars shall not be liable
to such attachment or sale, namely:--
(b) tools of artisans and where the judgmentdebtor is an
agriculturist, his implements of husbandry and such cattle
and seed-grain as may, in the opinion of the court be
necessary to enable him to earn his
livelihood as such...
(c) houses and other buildings (with materials and the
sites thereof and land immediately appurtenant thereto and
necessary for their enjoyment) belonging to an agriculturist
and occupied by him."
I propose now to consider the question whether the wada is
saved from execution under el. (c) of the proviso to sub-s.
(1) of s. 60. In order that the clause may apply two
conditions have to be fulfilled. First, the person claiming
benefit under it must be an agriculturist and secondly the
wada must belong to and be occupied by him.
First, then, was the appellant Appasaheb an agriculturist
within the meaning of the clause ? Now the plain meaning of
the word " agriculturist " in the present context, is a
person who occupies himself with agriculture, that is,
cultivation of land for raising crops. Anybody who is
engaged in cultivating land for raising crops would be an
agriculturist. So far there is no difficulty. It appears
however from the reported decisions that the High Courts
have expressed sharply divergent opinions on the question as
to who is an agriculturist within the meaning of the clause.
The difference however is not on the point that an
agriculturist must be one who cultivates but as to whether
the agriculturist contemplated in cls. (b) and (c) is one
who cultivates with his own hands and whether all persons
who carry on agricultural operations are agriculturists
within the clauses. These differences have arisen not
because any difficulty was felt as to the meaning of the
word " agriculturist ", but from the intention of the
legislature to be gathered from the other words used in the
clauses. In this appeal these authorities have been relied
on by the
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parties as it suited the contention of each. It is
necessary therefore to consider the views expressed in these
cases and decide whether the word " agriculturist " is to be
given its plain meaning or has to be qualified in some way.
It is of some significance to state that by and large, the
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view of one High Court has been discarded by another.
One view is that an agriculturist is a person whose main
source of livelihood is agriculture: see Tirloki Prasad v.
Kunj Behari Lal (1). It is said that this is the right view
for an agriculturist must be one who is so by profession.
Now the main source of livelihood of a person may vary from
time to time: therefore at one period of time a person might
be ail agriculturist but not at another. It is not
reasonable to hold that such a result was intended. Again
it would often be difficult to decide which is the main
source of livelihood of a person. Indeed it is not quite
clear as to what is meant by main source of livelihood
unless it means the livelihood producing the largest income.
I find nothing in the clauses to warrant this view: they do
not say anything about agriculture being a person’s main
source of livelihood in any sense of the word " main ".
Furthermore if this view is accepted, a rich farmer who has
income from other sources, which income is smaller than his
income from agriculture, would be protected by these clauses
while a poor peasant who makes a slightly bigger income, say
as a day labourer, than he does from agriculture, would be
deprived of the protection. I am unable to accept a view
which produces such a result. I find no reason why a person
who has a profession besides agriculture, should be
protected if agriculture is his main profession and not
otherwise, particularly when what is protected is
agricultural implements, cattle, seed-grain and house used
for agricultural purposes.
Another view taken is that the agriculturist must be one
whose sole means of livelihood is cultivation of land but
excluding persons carrying on farming in a large way:
Muthuvenkatarama Reddiar v. The Official
181
Receiver of South Arcot (1). This view has been discarded
in a later full bench decision of the same High Court in
Parvataneni Lakshmayya v. The Official Receiver of Kistna
(2) to which reference will be made later. For myself, I
find nothing in the clauses to justify this view. Take the
case of a small cultivator who, in order to maintain
himself, takes up the other work and so supplements his
income. There is nothing in the clauses to indicate that
such a cultivator should be deprived of the protection. It
is well known that agricultural operations do not occupy a
person for the whole year and as the income from agriculture
is for quite a large number not enough to meet their needs,
many small cultivators have to supplement their in. come by
other work when they are not engaged in the fields. There
is nothing in the clauses to lead to the view that these
persons were not intended to get the protection. It seems
to me manifest that there is no reason to deprive these
persons of the benefit of the protection. Neither do I find
any words in the clauses to support the view that big
farmers are not intended to get the protection. This aspect
of the matter will be discussed further later. The view
taken in Muthuvenkatarama Reddiar’s case (1) does not
therefore appear to me to be well founded.
In Nihal Singh v. Siri Ram (3 ) a full bench of the Lahore
High Court held that an agriculturist must be one who
personally tills and not through servants and does not
maintain himself from other sources of income. The reason
given to support this view appears to be as follows: The
word agriculturist must mean the same thing in cls. (b) and
(c). In cl. (b) it is in juxtaposition with the word
artisan. An artisan is one who himself practices a
handicraft and furthermore he must practice the handicraft
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not as a hobby but as a living. So in cl. (b) an
agriculturist must be one who personally tills and not
through servants and maintains himself by agriculture alone.
I am not convinced by this reasoning. If the word
agriculturist means one who must till with his own
(1) (1925) I.L.R. 49 Mad. 227. (2) I.L.R. [1937] Mad. 777.
(3) (1939) I.L.R. 21 Lah. 23.
182
hands, then it is wholly unnecessary to rely on the
juxtaposition of the words artisan and agriculturist in cl.
(b) for reaching the conclusion that the Lahore High Court
did. It is only if the word " agriculturist " as ordinarily
understood includes one who carries on agricultural
operations through persons employed by him that it becomes
necessary to rely on the reasoning based on the
juxtaposition of the two words in the clause. But I am
wholly unable to appreciate the logic of this reasoning.
Assume that an artisan must be one who works with his own
hands. It does not follow that an agriculturist if it does
not mean exclusively one who tills with his own hands, must
be one who tills only with his own hands when that word is
used in juxtaposition with the word artisan. Such
juxtaposition would afford no reason for departing from the
normal meaning of the word agriculturist.
In Hanmantrao v. Dhruvraj (1) also it was said that an
agriculturist within the meaning of the clauses is one who
tills with his own hands. The reason there put is that
since in el. (b) reference is made to implements of
husbandry, cattle and seed-grain necessary for earning a
livelihood as a cultivator, therefore primafacie, only an
agriculturist who cultivates with his own hands is meant.
Again I am unable to follow the reasoning for a person who
lives on cultivation carried on by hired labour would also
require implements of husbandry, cattle and seed-grain.
An agriculturist, as I have said, is one who carries on
cultivation. Now one may carry on cultivation himself or
through hired labour. In the latter case also he would be
an agriculturist within the plain meaning of that word.
Then it seems to me that if we exclude from the clause an
agriculturist who does not till with his own hands, a most
unreasonable situation would ensue. Old and incapacitated
small farmers and most women would have to be denied the
protection of the clauses. Again, it may so happen that a
person carrying on agricultural operations himself becomes
unable to do so through ill health for two or three years
when he gets the cultivation done
(1) I.L.R. [1947] Bom. 687.
183
by employing labour and resumes cultivation when he regains
his health. If the view now under discussion is correct,
then such a person would cease to be an agriculturist during
the period of ill health though before and after that period
he would be an agriculturist. It does not seem to me that
such results could have been intended.
I come now to the view taken in Parvataneni Lakshmayya v.
The Official Receiver of Kistna (1) earlier referred to. It
was there said, "We think that, having regard to the scheme
of the section exempting from attachment, as it does, tools
of artisans, and, where the judgment-debtor is an "
agriculturist ", his implements of husbandry and such cattle
and seedgrain as may in the opinion of the court be neces-
sary to enable him to earn his livelihood and his houses and
other buildings occupied by him, protection is intended to
be given to those who are real tillers of the land, and that
an " agriculturist " in the section is a person who is
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really dependent for his living on tilling the soil and
unable to maintain him otherwise."
I am unable to agree with this view. It leads to obvious
anomalies. Take the case of a person whose sole means of
living is agriculture. Suppose he carries on agriculture on
a large scale and makes a big income out of it. He would
still be dependent on agriculture for his living and unable
to maintain himself otherwise. He would be an agriculturist
for the purpose of the clauses within the meaning of
Parvataneni’s case (1), for that case does not say that a
large scale farmer is not an agriculturist. Such a person
would be entitled to protection under the clauses even
though his income from agriculture is, say Rs. 25,000 a
year. Now take the case of a small farmer whose income from
agriculture is Rs. 1,000 a year but who also makes Rs. 1,500
from other sources and is able to maintain himself from the
latter income. According to Parvataneni’s case (1) such a
person would not be an agriculturist for the purpose of the
clauses and would not be entitled to any protection under
them. I find
(1) I.L.R. [1937] Mad. 777.
184
it impossible that the legislature could have intended such
a result.
Then again I find nothing in the language of the clauses
clearly leading to the view accepted in Parvataneni’s ’case
(1) however. The only reference to a living is in cl. (b)
and it is to be found in the words " such cattle and seed-
grain as may...... be necessary to enable him to earn his
living as such ", that is, as an agriculturist. I do not
think that these words lead to the conclusion that the
agriculturist contemplated must depend for his living on
agriculture. They are intended to define the limit of the
protection which an agriculturist is entitled to for his
cattle and seed-grain. These words must therefore mean such
cattle and seed-grain as are necessary for the agriculturist
to earn his livelihood from agriculture if that was his sole
means of livelihood. If that were not so we would have to
hold that this part of the clause contemplated an
agriculturist whose livelihood depended on agriculture alone
and who had no other source of income. Obviously where a
person earned his livelihood from agriculture and another
source, it could not be decided what cattle and seed-grain
he would require to earn his living as an agriculturist for
the simple reason that he did not earn his living as an
agriculturist only. Parvataneni’s case (1) however accepts
the view that a person may be an agriculturist within the
meaning of the clauses though he may have besides
agriculture another source of income. And with that view,
for the reasons earlier stated, I entirely agree.
There seems to me to be other reasons also why the view
taken in Parvataneni’s case (1) is not the correct one. So
far as the tools of an artisan are concerned, cl. (b) does
not limit the protection to such of them as are necessary to
enable him to earn his living as an artisan. Therefore,
there is no reason to think that an artisan is one who must
be dependent for his living on the handicraft practised by
him. Likewise all implements of husbandry of an
agriculturist are exempt from attachment and sale. The word
" such " occurring before the words I cattle and seed-grain
in cl. (b)
(1) I.L.R. [1937] Mad. 777.
185
shows that these are protected only to the extent indicated
and that there is no limit to the protection afforded to the
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implements of husbandry of an agriculturist. If this is the
correct reading of the clause, as I think it is, then it
seems to me impossible to say that an agriculturist whose
implements of husbandry are intended to be protected must be
one who could not maintain himself apart from agriculture.
Likewise, there is nothing in cl. (c) to indicate that the
agriculturist there mentioned must be one who depends for
his living on agriculture:
There remains one other view to consider. It has been said
that the agriculturist must be a very small farmer;
Muthuvenkatarama Reddiar v. The Official Receiver of South
Arcot (1). For this qualification for an agriculturist
again, I find no warrant in the clauses or indeed anywhere
else in s. 60. The various clauses in the proviso to s. 60,
sub-sec. (1) exempting diverse things from attachment and
sale are no doubt based on public policy, but the
consideration of public policy in each case appears to me to
be different. I find it impossible to say that the central
idea was to protect the poor or to prevent a person being
left destitute. Thus el. (a) protects the necessary wearing
apparel, cooking vessels beds and bedding of the judgment.
debtor. Even a very rich judgment debtor is entitled to
protection under this clause. Clause (d) protects books of
account. Here again it is not a poor man alone that is
contemplated nor would deprivation of books of account leave
one destitute in all cases. Clause (g) protects political
pensions which may be and often are of substantial amounts.
Clause (h) protects wages of labourers and domestic
servants. This clause of course deals with a poor man and
is intended to relieve against poverty. Since however,
there is no one specific central idea running through all
the clauses, each clause has to be construed by itself.
Coming then to cls. (b) and (c), I find no justification for
the view that they deal only with poor people or are
intended to protect against destitution. Thus there
(1) (1925) I.L.R. 49 Mad. 227.
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186
is nothing in el. (b) to indicate that the tools of only
poor artisans are to be protected. The same thing can be
said of an agriculturist. The fact that his cattle and
seed-grain are protected to the extent necessary to enable
him to earn his livelihood does not lead to the view that he
must be a poor agriculturist. On the contrary, the clause
contemplates an agriculturist who has more cattle and seed-
grain than he needs for his livelihood. It clearly
contemplates a rich and large scale agriculturist.
Therefore it seems to me that there is no warrant for
imposing any qualification on the plain meaning of the word
I agriculturist’ in cls. (b) and (c). In my view, an
agriculturist contemplated by the clauses is any person who
occupies himself with agriculture. This is the view taken
in Gowardhandas v. Mohan Lal (1) and with it I agree. A
person occupying himself with agriculture would be an
agriculturist though he does not cultivate with his own
hands and carries on agriculture in a very large scale. He
would still be an agriculturist though he has other means of
livelihood besides agriculture.
I come now to the facts of this case. The question is, is
Appasaheb such an agriculturist as I have indicated ? The
evidence clearly shows that he is. It can be said to have
been established beyond doubt and not questioned in the
Courts below, that Appasaheb was carrying on agricultural
operations under his supervision through labour employed by
him and with his own cattle and agricultural implements on
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fifty to sixty acres of land. The evidence also establishes
that Appasaheb’s income from agriculture came to Rs. 30,000
to Rs. 35,000 per year. It appears that he was in receipt
of cash allowances of Rs. 700 to Rs. 800 per year in respect
of the watan and Rs. 4,000 to Rs. 5,000 per year from
village officers of the watan villages, neither of which was
income from agriculture. These facts in my view make
Appasaheb an agriculturist for the purpose of cls. (b) and
(c) though it may be that he was not dependent for his
living upon agriculture and was a large scale farmer who did
not
187
till with his own hands. I wish however to state that there
is uncontradicted testimony that Appasaheb personally took
part in the agricultural operations.
Now cl. (c) protects from attachment and sale houses and
other buildings with the sites thereof and land immediately
appurtenant thereto and necessary for their enjoyment,
belonging to an agriculturist and occupied by him. I think
it is a fair reading of this clause to say that the houses,
buildings and lands must be occupied by the agriculturist
for the purpose of agriculture for the object of these
clauses is to protect an agriculturist only so far as is
necessary for his agricultural operations. If an
agriculturist occupied a house, say as a holiday resort,
there would be no reason to protect that house from
attachment and sale.
The question then arises whether Appasaheb occupied the wada
for the purposes of his agricultural operations. I think
the evidence makes it perfectly clear that he did so. It
shows that the larger part of the wada was used for storing
crops, keeping agricultural implements, residence of the
farm servants and tethering cattle used for agriculture.
Appasaheb and his family lived in a part of the wada but
that also was clearly occupation for purposes of
agriculture, for it is from there that he supervised the
agricultural operations.
I have therefore come to the conclusion that the wada is
saved from attachment and sale in execution by cl. (c) of
the proviso to sub-s. (1) of s. 60 of the Code of Civil
Procedure.
The other contention of the appellants does not seem to me
to be sustainable. It is said that the maxim accession
credit principali applies and the wada standing on watan
land has acquired the character of watan as an accession to
it. It is not in dispute now that the wada was not in
existence when the watan was first created but had been
built subsequently by one of the watandars. It is also said
that the grant of the watan carried full right of ownership
in the subject of the grant ; that the grantee had the right
to make such use of the land granted as any owner of it
could have
188
done. So it was said that the wada had been put up
rightfully by the watandar and became part of the watan as
an accession to it.
There is no doubt that the wada was rightfully constructed.
It may be that it became on such construction a part of the
land on which it stands and assumed the character of
immovable property. But I am unable to agree that it
thereupon assumed the inalienable character of watan
property and was therefore hot liable to attachment and sale
in execution. I do not think that the maxim accessio cedit
principali applies in giving the wada put up on watan the
character of a watan. Watan is a creation by government
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grant. It is inalienable under a special Act. The
inalienable character attaches under the Act only to the
property granted by the government. This peculiar character
cannot be extended to other property by the application of
the maxim. Therefore it seems to me that the wada is not
inalienable though it stands on land which is inalienable as
a government grant under a special Act. I would for this
reason reject this contention of the appellant.
As however in my view, the wada is protected from attachment
and sale in execution under cl. (c) to the proviso to sub-s.
(1) of s. 60 of the Code of Civil Procedure, I would allow
the appeal.
BY COURT: In view of the majority Judgment, the appeal is
dismissed with costs.
Appeal dismissed.
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