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Ganpat Chandrabhan Vs. Tulsi Ramchandra - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberAppeal from Order No. 70 of 1922
Judge
Reported inAIR1924Bom219; (1924)26BOMLR118
AppellantGanpat Chandrabhan
RespondentTulsi Ramchandra
DispositionAppeal dismissed
Excerpt:
dekkhan agriculturists' relief act (xvii of 1879), sections 2, 10 a, 20--agriculturist--who is--extension of the whole or parts of the act in a district.;by the full bench. the extension of sections 2 and 20 of the dekkhan agriculturists' relief act 1879 to a district is sufficient to make a person an agriculturist within the meaning of section 2, if that person by himself or by his servants or by his tenants earns his livelihood wholly or principally by agriculture carried on within the limits of the district or ordinarily engages personally in agricultural labour within those limits.;chanbasayya v. chennapgavda (1919) i.l.r. 44 bom. 217 : s.c. 22 bom. l.r. 44, overruled.;by shah and crump jj. section 0a of the dekkhan agriculturists' relief act applies to a transaction entered into by..........or in part' may for the time being extend. in the present case, government have purported to extend sections 2 and 20 to the district in question. in my opinion they have validly done so; and it is unnecessary for us to add to the difficulties of an already difficult act by holding that the purported extension is nugatory, unless the court should find that it is a substantial part of the act which is extended. indeed it is hardly surprising that in the courts below the learned judges arrived at different conclusions as to whether a substantial part of the act had been extended to the district.13. i have thought it right to state my own conclusions in my own words, as we are differing from the decision in chanbasayya's case. but my opinion is more happily and concisely expressed in.....
Judgment:

Marten, J.

1. In this case the following questions have been referred to us as a Full Bench for decision, viz:--

(1) Whether the extension of Sections 2 and 20 of the Dekkhan Agriculturists' Relief Act to the District of Khandesh is sufficient to make a person an agriculturist within the meaning of Section 2, if that person by himself or by his servants or by his tenants earns his livelihood wholly or principally by agriculture carried on within the limits of the District or ordinarily engages personally in agricultural labour within those limits?

(2) If not, whether the further extension of the provisions of Chapters V, VI and VII so far as they relate to Village Munsiff's and Conciliators is sufficient to constitute such a person an agriculturist within the meaning of Section 2?

2. The Act, as now in force, after reciting in the preamble that 'it is expedient to relieve the agricultural classes in certain parts of the Dekkhan from indebtedness,' enacts in Section 1 as follows:--

This Act may be cited as the Dekkhan Agriculturists' Belief Act, 1879:

and it shall come into force on the first day of November, 1879.

This section and Sections 11, 5(j, 60 and 62 extend to the whole of British India. The rest of this Act extends only to the districts of Poona, Satara, Sholapur and Ahmednagar, but may, from time to time, be extended wholly or in part by the Local Government, with the previous sanction of the Governor General in Council, to any other district or districts in the Presidency of Bombay or to any part or parts of any other such district or districts.

3. Then Section 2 runs:--

In construing this Act, unless there ia something repugnant in the subject or context, the following rules shall be observed, namely:--1st--'Agriculturist' shall be taken to mean a person who by himself or by his servants or by his tenants earns his livelihood wholly or principally by agriculture carried on within the limits of a district or part of a district to which this Act may for the time being extend; or who ordinarily engages personally in agricultural labour within those limits.

3. The remaining rules in Section 2 i need not set out.

4. As regards those sections which are directed by Section 1 to extend to the whole of British India, namely, Sections 11, 50, 60 and 62, they are shortly to the following effect. Section 11 provides that an agriculturist is to be sued where he resides. Sections 56 and 62 provide that mortgages, conveyances and other documents are to be executed before a Village Registrar if one has been appointed, except in cases where a Government Officer is a party, in which event registration is unnecessary. Then under Section 60 registration under the Act is to be equivalent to registration under the Indian Registration Act.

5. As regards Sections 2 and 20, which are mentioned in the first question referred to us, I have already quoted the more material portion of Section 2. Section 20 enables the Court to direct that a decree against an agriculturist is to be paid by instalments with or without interest. It will be seen that as regards Section 20, it is an amplification of the powers given to the Court by the Civil Procedure Code, Order XX, Rule 11.

6. The answers to the questions referred to us depend on the meaning of the words 'this Act 'in Section 2(1). Three different constructions of these words may be advanced, namely, (1) that they necessitate the whole of the Act being extended to the district in question; (2) that it suffices if the whole or a substantial part of the Act is so extended; and (3) that the words 'this Act' mean 'this Act wholly or in part.'

7. Taking the first of these three constructions, it is important to observe that practically the whole Act depends on the definition of 'Agriculturist' in Section 2. Therefore, it is no use saying in Section 1 that you may extend certain sections only of the Act to the rest of the Presidency, if when you do so you are to be left without a definition of an agriculturist because the whole Act has not been so extended. In other words, you render the powers of part extension given to Government under Section 1 nugatory in that event. Consequently, this literal construction of the words 'this Act' must, I think, be rejected, as it was by the learned Judges who decided Chanbasayya v. Chennapgavda. (1919) 22 Bom. L.R. 44: I.L.R. 44 Bom. 217.

8. The second construction was that adopted in the latter case, namely, that the words mean 'this Act or a substantial portion thereof.' But this construction has the demerits that it is not the literal construction, nor one necessitated by implication by the remaining provisions of the Act, nor is it even a convenient construction in practice. The Act nowhere speaks of a substantial portion; nor have we been referred to any other Act here or in England, where a qualification of so remarkable a character as this has been adopted by the Court.

9. The argument in its favour depends on Section 1. It is said that if the worda 'in part' are to be inserted in Section 2, then the defini-tion of 'Agriculturist' will apply to all India, and consequently as. 11, 56, 60 and 62 will apply all over India. With great respect to the learned Judges who decided that case, I do not think that this necessarily follows. Section 1 is the dominating section, and contemplates that outside the four original districts of Poona, Satara, Sholapur and Ahmednagar, the Act shall be applied and extended section by section from time to time. But Section 2 is not one of those sections mentioned in Section 1 as extending to the whole of British India. Therefore before it is applicable in any District, it must be expressly extended to that District.

10. As regards Poona, Satara, Sholapur and Admednagar, it applied from the beginning because Section 2 would clearly fall within the worda 'the rest of this Act' in Section 1. As regards other districts, it would be applicable when a. 2 was extended, to that district as in the present case of the District of Khandesh. In this way, therefore, I think Sections 1 and 2 can be harmonised.

11. Alternatively it may be said that the reference in Section 1 to Sections 11 56, 60 and (32 extending to the whole of British India is intended to make it clear that, say, a Poona agriculturist cannot be sued in the Madras Courts. In this respect Section 74 of the Dekkhan Agriculturists' Relief Act would, I think, prevent the Civil Procedure Code from overriding the provisions of the Dekkhan Agriculturists' Relief Act. On the other hand, if the Act had been drafted as extending only to the districts, say, of Poona, Satara, Sholapur and Ahmednagar, it might have been argued that the legislature did not intend to oust the right of a party to sue this Poona agriculturist in Madras, supposing such party was entitled to do so, apart from the provisions of the Dekkhan Agriculturists' Relief Act. It is further to be observed, as pointed out by my brother Pratt, that it is usual in Acts of the Central Legislature to provide in the opening sections that they extend to the whole of British India, or otherwise as the case may be.

12. It follows, therefore, that in the view I take, the second of the above constructions cannot be supported and that the third construction is the one which I think correct, namely, that the definition of an agriculturist refers to a person of the requisite agricultural qualifications within the limits of a district or a part thereof to which the Act 'wholly or in part' may for the time being extend. In the present case, Government have purported to extend Sections 2 and 20 to the district in question. In my opinion they have validly done so; and it is unnecessary for us to add to the difficulties of an already difficult Act by holding that the purported extension is nugatory, unless the Court should find that it is a substantial part of the Act which is extended. Indeed it is hardly surprising that in the Courts below the learned Judges arrived at different conclusions as to whether a substantial part of the Act had been extended to the district.

13. I have thought it right to state my own conclusions in my own words, as we are differing from the decision in Chanbasayya's case. But my opinion is more happily and concisely expressed in the following passage from the referring judgment of Mr. Justice Crump where the learned Judge says:--

I can see no warrant for reading the words 'this Act' as though the words were ' a substantial portion of this Act. ' It seems to mo that those words either contemplate the extension of the Act pro tanto, or that they contemplate the extension of the Act as a whole. I can read them literally, or I can qualify them as I have indicated, hut I find it difficult to adopt any third course, and I should be much embarrassed were I called upon to decide in any given case whether any portion of the Act is or is not 'substantial'.

14. In the result, therefore, I respectfully agree with the referring judgments of the Acting Chief Justice and Mr. Justice Crump that the words 'this Act' in Section 2 mean 'this Act wholly or in part': and that the decision to the contrary effect in Chanbasayya v. Chennapgavda cannot be upheld.

15. As regards the precise question put to us, it is necessary, having regard to the arguments of the appellant before us, that some qualification should be put on our answer. Mr. Kelkar took three main points, first, that the words 'this Act' meant the whole Act and nothing but the whole Act. Alternatively, that they meant the whole Act or a substantial part of the Act; and that there was no extension of a substantial part of the Act in the present case. Lastly, he argued that if the first two points were decided against him, he would still contend that the respondent could not claim the benefit of Section 10(A) of the Act, because that section was not in force at the date of the transaction in suit, namely, April 27, 1005. He contended that under the Full Bench decision in Sawantrava v. Giriappa Fakirappa I.L.R. (1913) 38 Bom. 18 : 15 Bom. L.R. 778, F. B the material date for the application of the Act is the date of the transaction, and that the respondent would not be entitled to the benefit of the provisions of Section 10(A), unless he belonged to the favoured class, as defined by the Statute, who were entitled to the benefit of that particular section at the date of the transaction. That is because the policy of the Act was to extend it by different stages at different times.

16. If that view is correct, it would put the respondent out of Court, for Section 10(A) was not paused until 1907 and it was not extended to this particular district until 1911. It does not appear, however, that this point of law was raised in the arguments before the learned referring Judges. There is no express mention of it in their judgments, nor are we asked any express question with reference to it. As we understand the referring questions they are only intended to deal with the first two points raised by Mr. Kelkar, and with the difficulty caused by the decision in Chanbasayya's case.

17. Under these circumstances, we think the proper course is to express no opinion on this point with reference to Section 10(A), and to qualify our answers accordingly. We, therefore, stopped the appellant from developing his argument on that point, and we did not hear the respondents' pleader in answer to it.

18. I would, therefore, answer question No. 1 as follows: Yes. But the Court gives no opinion on the question whether such an agriculturist could claim the benefit of Section 10(A), if that section was not in operation at the date of the transaction in suit.

19. Question No. 2 does not arise.

20. I would leave all questions of costs to be decided by the referring Court. In conclusion I would like to express my appreciations of the assistance given to the Court by the able arguments of Mr. Kelkar and Mr. Shingne for their respective clients.

Pratt, J.

21. I concur.

22. The effect of Section 11 is to apply Section 2 to districts outside the local area in which the Act is in force---to this extent that a person who was an agriculturist within that area could not be sued without it: see Tulsidas Dhunjee v. Virbussappa (1880) I.L.H. 4 Bom 624 Accordingly if Section 20 alone were extended to Khandesh that same person who may be called for convenience the original agriculturist could in Khandesh claim the privilege of instalments in execution assuming that he could be sued there.

23. The effect of extending both Sections 2 and 20 must be something more than this. It cannot be to protect the original agriculturist for he is either exempt from suit or would be sufficiently protected by the extension of Section 20 alone. The effect must, therefore, be to create a privileged class of agriculturists within the district of Khandesh itself.

24. But this effect would be prevented if the words in Section 2 'District to which this Act may for the time being extend' are read as meaning district to which the whole of this Act may for the time being extend.

25. The phrase must either be construed strictly as meaning the whole Act or liberally as including any part of the Act. I know of no principle or authority for the intermediate construction that found favour in Chanbasayya v. Chennapgavda which read 'this Act' as meaning a substantial part of this Act. The only effect of that construction is to introduce fresh complications. The liberal construction is necessary to make the Act sensible.

26. It was objected in Chanbasayya v. Chennapgavda that this construction would create a privileged class all over India where Sections 11, 50, 60 and 02 extend. But I think it clear from the context that the definition refers to local extensions of what is purely a local Act.

Coyajee, J.

27. The first question referred to us is:

Whether the extension of Sections 2 and 20 of the Dekkhan Agriculturists' Belief Act to the District of Khandesh is sufficient to make a person an agriculturist within the meaning of Section 2, if that porson by himself or by his servants or by his tenants earns his livelihood wholly or principally by agriculture carried on with -in the limits of the District or ordinarily engages principally in agricultural labour within those limits.

28. Its solution depends upon the real meaning of the words 'District to which this Act may for the time being extend' occurring in Section 2 of the Dekkhan Agriculturists' Belief Act, 1879. The material portion of that section is this: ''Agriculturist' shall be taken to mean a person who ... earns his livelihood ... by agriculture carried on within the limits of a District or part of a District to which this Act may for the time being extend.'

29. Now, 'every clause of a statute should be construed with reference to the context and the other clauses of the Act, so as, so far as possible, to make a consistent enactment of the whole statute' (per Lord Davey in Canada Sugar Refining Co. v. Reg. [1898] A.C. 735.) Section 1 of the Act empowers the Local Government (with the sanction of the Governor-General in Council) to extend the Act 'wholly or in part' to any District in the Presidency of Bombay, or to any part or parts of any such District; the intention being to leave it to the discretion of that Government to extend either the whole Act or any particular portion of it to any such District or to any part of such District according to local needs and conditions. It was, therefore, competent to that Government to extend Sections 2 and 20 of the Act to the District of Khandesh, without extending the whole of the statute to that District. The question now is, whether a person, who earns his livelihood by agriculture carried on within the limits of the District of Khandesh, to which the said two sections extend, is an 'agriculturist' within the meaning of the definition clause, Section 2.

30. It is contended on behalf of the appellant that such a person is not an agriculturist within the meaning of Section 2.Vor, it is urged, 'this Act' cannot be said to be extended to Khandesh unless either (1) the whole of the Act, or alternatively (2) a substantial portion of it is extended to that District.

31. In my opinion the first construction, although it is the literal construction of the matorial words, is not admissible. It renders the extension of the said two sections to Khandesh nugatory and of no effect, notwithstanding the fact that the statute (Section 1) expressly provides for it and allows it. That is a result which, if it is possible to avoid, must be avoided. This literal construction of the words 'this Act' was not accepted by the learned Judges who decided the ease of Chanbasayya v. Chennapgavda I.L.R. (1920) 44 Bom. 217, 22 Bom. L.R. 44. The object and intention of the legislature in passing this Act was, as stated in the preamble, to relieve the agricultural classes in certain parts of the country from indebtedness. To that end the Local Government is empowered by the Act to extend either the whole or any part of it to any particular District or part of a District. In exercise of the power so conferred, they extended Sections 2 and 20 to Khandesh. The class of persons for whom this benefit was intended could claim it only if the words 'this Act' in Section 2 meant 'this Act wholly or in part'; upon any other construction of those words the extension can have no effect. I prefer that construction which makes the statutory extension effective and not nugatory. Moreover, as the whole includes a part, this meaning does much less violence to the language of the statute than the other construction does to the declared intention of the legislature. In this connection, I would express my agreement with the following observations made by Crump J. in his referring judgment:-

I should find it easier to read the words 'this Act may for the time being extend' as meaning any portion of this Act than to construe them as meaning 'the whole of this Act.' The former gives effect to the intontion of the legislature, while the latter...renders the intention of the legislature nugatory, in so far as they purported to give powers to the Local Government to extend the Act in part. As to the argument based on Sections 1, 11, 56, 60 and 62 I would point out that these extend proprio vigore to the whole of British India and stand on a different footing to those sections which are 'from time to time extended' in virtue of the power Conferred by Section 1. It is no doubt difficult to construe the Act logically in this mattor but I would apply the principle ut res magis valeat, quam pereat.

32. As regards the argument based on the application of Sections 1, 11, 56, 60 and G2 to the whole of British India, it may be useful to compare the provisions of Sections 1 and 2 as they now are with what they wore in 1879. For, 'the true meaning of any passage, it is said, if to be found not merely in the words of that passage, but in comparing it with every other part of the law, ascertaining also the circumstances with reference to which the words were used, and what was the object appearing from those circumstances, which the legislature had in view' (Maxwell on the Interpretation of Statutes, 6th Edn., p. 32). The first section of the Act as originally enacted was in these terms: 'Sections 11, 56, 60 and 62 extend to the whole of British India. The rest of the Act extends only to the districts of Poona, Satara, Sholapur and Ahmednagar.' The material portion of the original second section was this: ''Agriculturist' means a person who earns his livelihood...by agriculture carried on within the limits of the said districts.' Subsequently amendments and alterations were made in Section 1 in the manner following: (1) By Act XXIII of 1881 the words 'This section and' were inserted before the word 'sections,' and those words were to be deemed to have always been there; (2) by Act XXIII of 1886 the provision empowering the Local Government to extend the Act wholly or in part to any other districts in the Presidency of Bombay was inserted; (3) by Act VI of 1895, the last thirteen words, namely, 'or to any part or parts of any other such district or districts' were added. These alterations in Section 1 necessitated a change in Section 2; for the Act was intended for the benefit of an 'agriculturist', and he was to be found-if at all-in the definition clause, Section 2. Accordingly, by the said last enactment, namely Act VI of 1895, the original second section was replaced by the present second section which includes (inter alia) the words 'this Act for the time being extended.' It would thus appear that these words have reference to the extension of the Act to districts or parts of districts in the Presidency of Bombay, and not to the original application of Sections 1, 11, 56, 60 and 62 to the whole of British India. The application of those sections to the whole of British India was mainly intended to prevent agriculturists residing in the favoured districts within the Presidency of Bombay from being sued, for instance, in the Calcutta, or Madras Courts: see Tulsidas Dhunjee v. Virbussapppa. (1880) I.T.R. 4 624.

33. The second of the two constructions offered on behalf of the appellant is that the expression 'this Act' means, if not the whole Act, then at any rate 'a substantial portion of this Act.' This line of reasoning derives support from the decision of this Court in Chanbasayya v. Chennapgavda : (1920)22BOMLR44 and on that account deserves to be examined with due care. With all deference, however, I find a real difficulty in accepting this interpretation of the enactment. It concedes that 'this Act' means 'this Act wholly or in part.' But it introduces into the question an element of uncertainty as to which particular portion of the Act constitutes its 'substantial portion.' The legislature has given us no guidance whatever in the matter; and it is not to be expected that those who are called upon to administer the Act can easily agree as to how much or how little will suffice for the purpose.

34. My answer then to this first question which, it must be confessed, is not easy to solve, is as is indicated above. The second question does not survive.

35. I have had the advantage of seeing the judgment of my learned brother Marten. I concur in the answer proposed by him. We are not asked by the learned referring Judges to express our opinion as to the contention raised before us on the appellant's behalf, namely, that even if the two questions referred to us were answered against him, it was still open to him to urge that the respondent could not claim the benefit of Section 10(A) of the Act. After the above expression of opinion by the full bench, the appeal was finally argued before the division bench consisting of Shah and Crump JJ., on December 10, 1928, when their Lordships, after hearing further arguments, delivered the following judgments.

Shah, J.

36. In accordance with the judgments of the Full Bench with reference to the first question referred to that Bench, we hold that Ramsing was an agriculturist as defined by the Dekkhan Agriculturists' Relief Act at the date of the transaction in question. It would, therefore, appear that under a 10A of the Dekkhan Agriculturists' Relief Act, the plaintiff would be entitled to adduce evidence to show that the transaction was not a sale, but a mortgage.

37. It is urged on behalf of the appellants as against this view, that Section 10A really applies to transactions which are entered into after the date on which Section 10A came into force in this district. The contention is that the benefit of Section 10A extends to a transaction entered into after the enactment of the section, or after its application to the particular district. I am unable to accept this contention. The words of the section are clear, and do not limit its application to transactions which are entered into after the section was enacted or applied to a particular district. The section refers to 'any transaction' in issue entered into by an agriculturist or any person through whom such an agriculturist claims. The words 'any transaction' are indicative of the wider application of this Section It is also opposed to what I may call the necessary implication of the ratio decidendi of the Full Bench judgment in Sawantrava v. Giriappa Fakirappa. I.L.R. (1913) 38 Bom. 18, Sectionc. 15 Bom. L.R. 778 It is a matter of common knowledge that during all these years after Section 10A was enacted and extended to the whole presidency, it has been applied to all transactions, whether entered into after that date or before that date, provided the party to the transaction was an agriculturist as defined by the Act, subject of course to the other provisions of the section, without any objection having been raised. I have, therefore, no hesitation in rejecting the argument which has been urged on behalf of the appellants in support of the view that Section 10A must be applied only to transactions which are entered into after the date on which that section was enacted or extended to this particular district. The result is that the order appealed from is confirmed and the appeal dismissed with all costs in this Court.

Crump, J.

38. I entirely agree. As to the point now raised before us, I have no doubt whatever that Section 10A of the Dekkhan Agriculturists' Relief Act is intended to be retrospective in its application, and that the only test is that which the section itself lays down, viz., whether a person seeking the benefit of that section was an agriculturist at the time of such transaction. The word 'agriculturist' necessarily means an agriculturist as defined by the Act, and the answer to the question which we referred to the Full Bench shows that the extension of Section 2 and Section 20 is sufficient to make a person an agriculturist within the meaning of the Act. It follows plainly on the facts of the present case that Ramsing was an agriculturist for the purposes of Section 10A, and that evidence is admissible as to the real nature of the transaction. Not only is this clear from the words of the section, but it is equally clear from the well-known object of the legislature in enacting that Section It is owing to the decision of this Court in A baji v. Laxmnan I.L.R. (1906) 30 Bom. 426 : 8 Bom. L.R. 553, that Section 10A was enacted, and it would be idle to suggest that the evils which this Court pointed out could have been in any way met by a section which is not retrospective in its operation. With all respect to the learned pleader who has raised this point, it is not, in my opinion, arguable.


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