1. The only question involved in this appeal is whether the Court below was right in its view that the suit was governed by the Dekkhan Agriculturists' Relief Act on the footing that the plaintiff is an agriculturist. Upon the title of the suit itself it is brought by ' The Collector of Nasik District representing the Court of Wards for the estate of Gopalrao Shivdevrao Rajebahadur.'
2. Mr. Kelkar's first argument is that the real plaintiff is the Court of Wards, and it is that Court's status which should be regarded, and not the status of Gopalrao Shivdevrao. It is, says the learned pleader, the same case as if a person being himself an agriculturist assigned his property to a non-agriculturist stranger. The assignee could not claim the benefit of the special Act. It appears to us, however, that the Court of Wards bears no resemblance to the assignee in the case put. As appears quite clear from the Court of Wards Act (Bom. Act I of 1905) passim, and especially from Sections 2, 4 and 32 thereof, the property remains the property of the ward, and the only manner in which the Court of Wards intervenes is to assume the superintendence of it.
3. The reason why this suit is brought in the name of the Court of Wards is explained by Section 32 of the Act which lays down that in such a case as this ' the Court of Wards having the superintendence of the Government ward's property, shall be named as the next friend or guardian for the suit.' In other words the ward being temporarily disabled from suing on his own behalf sues through the Court of Wards. But the plaintiff is none the less the ward Gopalrao Shivdevrao, and it is his status, therefore, which alone has to be considered.
4. A further argument upon this point was endeavoured to be extracted from Section 25 of the Act. Mr. Kelkar relying on that section has contended that even assuming that the real plaintiff is the ward Gopalrao, he cannot be considered an agriculturist for the purpose of the Dekkhan Agriculturists' Relief Act, because his only means of livelihood is the allowance made to him by the Court of Wards under Section 25. We think, however, that this temporary allowance made for the purposes of maintenance is not conclusive of the ward's status, but that to ascertain what that status is regard must be had to the character of the ward's property from which this allowance is derived.
5. The question, therefore, still remains whether Gopalrao, the plaintiff, is an agriculturist within the meaning of the Dekkhan Agriculturists' Relief Act. In that Act the term ' agriculturist' is defined as ' a person who by himself or by his servants or by his tenants earns his livelihood wholly or principally by agriculture'. It will be seen that the Act countenances no distinction based upon the comparative riches or poverty of the person whose status is being investigated. In other words the rich agriculturist is just as much an agriculturist under this . Act as the petty agriculturist. If that is so, it would certainly be a surprising result if we were to find that the plaintiff in this case who is a landholder, and nothing else, should not be regarded as an agriculturist, within the definition of the Act. We think, however, that the learned Judge below was right in his view that the plaintiff fell within the definition.
6. It may be, as Mr. Kelkar has argued, that the Judge was wrong in allowing the Rs. 1,100, received by the ward's mortgagees, and not by the ward himself, to be counted as if that sum formed part of the ward's agricultural income. We say that it may be so, without deciding definitely, because in the view we take of this case it is not necessary for us to pronounce a decision.
7. Assuming that Mr. Kelkar's argument on this point is correct, it is, however, none the less established in our view that the plaintiff is an agriculturist. On the admitted figures the yearly income accruing to the plaintiff from the lands paid by his occupancy tenants is Rs. 3,793. The total assessment on all the lands involved comes to Rs. 2,382. From this sum of Rs. 2,382 a certain deduction must be made. What that deduction should be was a point of some argument. We agree 4 with Mr. Shah's contention that the deduction should be the total assessment on all the mortgaged property, that is the sum of Rs. 885, and we cannot accept the counter contention that the deduction should be limited only to that part of the assessment which is leviable on the lands exempted. If, therefore, we make this deduction of Rs. 885 from the total assessment of Rs. 2,382 we get as the result Rs. 1,497, which figure will represent the assessment on the non-mortgaged property. This sum of Rs. 1,497 must now be deducted from the sum of Rs. 3,793 to which we have already referred. That leaves us with Rs. 2,296 as the income derivable from the agricultural sources. As against that, the most that we can set on the other side of the account would be a sum of Rs. 1,255, plus something under Rs. 400 as a cash allowance. These two sums would yield only Rs. 1,655 as against Rs. 2,296 derived from agricultural sources. This is the reckoning which, in our opinion, is most favourable to the case for the defendant. And even on this reckoning it is plain that the plaintiff is entitled to be regarded as an agriculturist under the Dekkhan Agriculturists' Relief Act.
7. We are of opinion, therefore, that the learned Judge below was right, and we must dismiss this appeal with costs.
8. As to the scale on which the costs should be allowed the parties should go first to the Taxing Officer.