1. This appeal arises from a suit to redeem an alleged mortgage by ostensible sale executed by the plaintiff's father in 1900. The plaintiff desired to rely on the provisions of Section 10A of the Dekkhan Agriculturists' Relief Act, and in order to do so it was necessary to show that he was an agriculturist as defined in the first part of Section 2 of the Act either at the date of the suit or at the date of the transaction (see Sultan Rahim v. Ran-chhod Mulji ILR (1926) 51 Bom. 224, 29 Bom. L.R. 249. It was admitted that at the date of the suit he was not an agriculturist but was earning his living in a tea shop. At the time of the transaction he was a child of two or three years of age maintained by his father who was an agriculturist.
2. The only issue for determination in this appeal is, whether under the circumstances the plaintiff can be described as having been an agriculturist at that time. The definition is ' 'Agriculturist' shall be taken to mean a person who himself or by his servants or by his tenants earns his livelihood wholly or principally by agriculture...or who ordinarily engages personally in agricultural labour.' The trial Judge took the view that the plaintiff was not an agriculturist. The First Class Subordinate Judge in appeal decided that he was.
3. Now prima facie and having regard to the objects of the Dekkhan Agriculturists' Relief Act, it might appear that the infant SOB of an agriculturist should be entitled to rely on the status of his father. But it has been held that the definition of 'agriculturist' under the Act and the other provisions in favour of agriculturists in it are purely personal privileges: Dharamsey v. Balkrishna (1928) 31 Bom. L.R 980. Moreover, there is a decision of this Court in Dagdu v. Mirasaheb ILR (1912) 36 Bom. 496, 14 Bom. L.R. 385, which appears directly to cover the point in issue. It was there held that the minor son of an agriculturist who is depending for his support on his father is not an agriculturist within the meaning of Section 2 of the Act, on the ground that dependence for livelihood upon another who is an agriculturist is not the same thing as earning livelihood for oneself by agriculture. The First Class Subordinate Judge attempted to distinguish this case on the ground that the parties claiming to be agriculturists there were Mahomedans. A Mahomedan while his father is alive may have no property of his own, whereas in a Hindu joint family any coparcener, even though he be a minor, has a share in the joint estate. This line or reasoning has been adopted by Mr., Rele on behalf of the respondent in this case. But if one refers to the judgment in Dagdu v. Mirasaheb it appears that it was not in any way based upon the fact that the parties in question belonged to a Mahomedan family, nor on the fact that they had no property of their own. In fact there is no reference in the judgment to the circumstance that the minors concerned were Mahomedans. The fact can only be inferred from the names given in the heading to the case.
4. The ratio decidendi, as I have already suggested, was that dependence for livelihood upon another person who is an agriculturist is not the same thing as earning livelihood for oneself by agriculture. Chandavarkar J. referred to the case of Dwarkojirav Baburav v. Balkrishna Bhalchandra ILR (1894) 19 Bom. 255, in support of the proposition that (p. 498) 'to earn livelihood by agriculture is to obtain the means of livelihood by it'. What Sargent C.J. in that case actually said was (p. 257): 'The expression 'earns his livelihood' can only mean 'obtains the means of maintaining himself' That is a stronger expression than the one used by Ohandavarkar J. in Dagdu v. Mirasaheb and one that could not possibly be applied to an infant two or three years old.
5. The decision that the minor son of an agriculturist who depends for his support on his father is not an agriculturist appears to me to be based upon the language used in the definition, and the reasoning applies just as much in the case of a Hindu as in the case of a Mahomedan. I may mention that Dagdu v. Mirasaheb has been referred to as a correct statement of the law in Dharamsey v. Balkrishna (1928) 31 Bom. L.R. 984 and in Sultan Rahim v. Ranchhod Mulji ILR (1926) 51 Bom. 224, 29 Bom. L.R. 249. It is conceivable that difficulties might arise from the application of the doctrine that dependence upon an agriculturist is not enough to give the status of an agriculturist, for instance in cases where that dependence is due not to infancy but to old age, or physical incapacity. But any such difficulties must be left to be dealt with when they arise. The Legislature no doubt used the expression 'earns his livelihood' advisedly. To earn is not the same as to derive, and, in my opinion, we are not justified in assuming that the case of a minor coparcener in a joint Hindu family is a casus omissus. I hold that it cannot properly be said that the plaintiff at the time of the transaction in suit was earning his livelihood at all, and further, even if it could be said that he was earning his livehood, he was not earning it either through his servants or his tenants, but through his father. In my opinion the decision of the trial Court on this issue is correct.
6. I allow the appeal with costs in this Court and in the Court of first appeal. The order of the trial Court is restored.