1. The plaintiff sued to redeem a mortgage dated July 15, 1919, contending that, though in form the document is a sale-deed, it was treated as a mortgage under a contemporaneous oral agreement. In respect of this contention, he claimed to be entitled to the benefit of Section 10A of the Dekkhan Agriculturists' Relief Act. An issue was, accordingly, raised in the trial Court 'whether the plaintiff is an agriculturist as defined by law'. Upon this, the Subordinate Judge held that he was not an agriculturist at the date of the suit, but was one at the date of the suit transaction. On this finding he held that the plaintiff was entitled to the benefit of Section 10A. On the merits he passed a decree for redemption in favour of the plaintiff.
2. The defendant appealed, one of the grounds urged being that the trial Court erred in holding that the plaintiff was an agriculturist at the date of the suit transaction. The District Judge, however, agreed with the finding of the lower Court on this point, and confirmed the decree for redemption.
3. In this second appeal, it is contended that the plaintiff is not entitled to the benefit of Section 10A, because to invoke the aid of that section he must be an agriculturist both at the date of the suit and at the date of the transaction.
4. The section, no doubt, requires that the suit or proceeding, in which Section 10A is sought to be availed of, should be one 'to which an agriculturist is a party'. But the definition of 'agriculturist', contained in Section 2 of the Act as amended in 1895, covers not only the case of a person actually earning a livelihood by agriculture, but also (when used with reference to any suit or proceeding in Chapter III, of which Section 10A is a part) 'a person who, when any part of the liability which forms the subject of the suit or proceeding was incurred, was an agriculturist within the meaning of that word as then defined by law'. As pointed out in Damodar Nandram v. Manubai I.L.R. (1909) 34 Bom. 65 this latter part of the definition is intended for a special purpose. It has the advantage of obviating all questions that may arise as to a change of status since the date of the transaction, or even during the pendency of a suit, such as arose in Shamlal v. Hirachand I.L.R. (1885) 10 Bom. 367 and Padgaya, Somshetti v. Baji Babaji I.L.R. (1887) 11 Bom. 469. It is a part of the definition, which was first introduced by Act XXII of 1882 and which has, therefore, governed suits under the Dekkhan Agriculturists' Relief Act for over forty years. It must, in my opinion, be taken to apply to Section 10A, as much as Section 12 or any other provision in Chapter III of the Dekkhan Agriculturists' Belief Act, unless it can be shown that to do so would be repugnant to something in the subject or context, so as to fall within the saving clause at the beginning of Section 2. The mere fact that Section 10A was enacted subsequently to Section 2 does not- make any difference. In amending an Act, the legislature must, of course, be taken to have due regard to the existing provisions of the Act, which is being amended.
5. Mr. Thakor for the appellant contends that the first proviso to the section shows that the word 'agriculturist', where it first occurs in the section, means an agriculturist (as defined in the first clause of the definition) at the date of, or during the pendency of, a suit. This proviso requires the agriculturist, or the person through whom he claims, to have been an agriculturist at the time of the suit transaction. He says it qualifies what is otherwise enacted by the main part of the section, and that consequently the word 'agriculturist' in that main part must be taken to mean only a person who is an agriculturist at the time of the suit, as opposed to what he is required to be by the proviso. I do not think this is a sound argument. The object of the proviso is quite clear. If there had been no such provision, the person claiming the benefit of Section 10A might be a person who was not an agriculturist at the date of the transaction, but merely became one afterwards, or a person who, though himself an agriculturist, had merely acquired the rights of a non-agriculturist transferor. In such cases the transaction would not bo one entered into by an agriculturist; and to prevent the section covering such a case, the proviso was enacted. It limits the benefit of the section to a person who was himself an agriculturist, when he entered into the transaction, or who claims through such an agriculturist; but that does not prevent him from being an 'agriculturist' within the meaning of the first part of Section 10A by virtue of the second clause of the definition in Section 2, if he falls under it. On the contrary, this accords with the intention of the section that he must have been an agriculturist at the date of the transaction (cf. Sawantrava v. Giriappa Fakirappa I.L.R. (1913) 38 Bom. 18. If the legislature had intended that the person claiming the benefit of Section 10A must bo both (a) an agriculturist within the meaning of the, first part of the definition at the time of the suit, and (6) an agriculturist at the time of the transaction, or claiming through such an agriculturist, they should have used words to make this clear.
6. Put in simple language, the case may be stated thus. The definition of 'agriculturist' in Section 2 says he may be A or B. Section 10A says the agriculturist party (i, e. A or B) must be B to get the benefit of the section. This requires that he must be B, and he can also be A; but it does not require that he must be A as well as B.
7. It is just a case of the ordinary principle that 'a proviso excepts out of a previous section, or out of the earlier part of the section which contains it, something which but for it would have been within the enacting part'. (Halsbury's Laws of England, Vol. XXVII, Art. 247, at p. 137). It excepts the case of the agriculturist being merely A, without also being B, or claiming through an agriculturist, who is B. But the limitation on the rights of A does not imply an additional corresponding limitation on the rights of B. To say that, because A must also be B, B must also be A, is an obvious non sequitur.
8. We were referred by Mr. Thakor to Martand v. Amritrao : AIR1925Bom501 as a decision binding us to take the view he advocated. In that case the original plaintiff Raghoji was an agriculturist both at the time of the suit transaction and at the time of the suit. He died during its pendency, and his son Amritrao was brought on the record in his place. An issue was then raised whether Amritrao was an agriculturist, and it was found that he was an agriculturist, when the suit was filed, but not when he was put on the record as a party. This Court held that the first condition in Section 10A was not satisfied, inasmuch as 'when Raghoji died there was no longer an agriculturist party to the suit. Amritrao was not an agriculturist. He was brought on the record in Raghoji's place, and Section 10A could not be applied in his favour.'
9. It is not clear whether Amritrao was found to be an agriculturist at the date of the transaction. In the note of Mr. Thakor's arguments at p. 954 of the report in the Bombay Law Reporter, it is said that he was so found. But no reference is made to this circumstance in the judgment. Nor is the definition of 'agriculturist' in Section 2 referred to. The decision can, I think, only be treated as one where either Amritrao was not an agriculturist at the time of the transaction of 1885 (possibly he was not even in existence then), or the definition in the second clause of Section 2 was overlooked. In either view, it is not a decision which prevents us from holding that the second part of the definition applies to a case under a 10A, as well as to any other part of Chapter III, .
10. A decision, which can be cited as indirectly supporting this view, is Dagdu v. Mirasaheb(1). This also related to Section 10A. The suit transaction was one entered into by an agriculturist in 1893. The plaintiffs were his sons, who were minors living with and dependent upon their father in 1893. They were found not to be agriculturists at the time of the suit. It was objected, accordingly, that the suit was not one to which 'an agriculturist is a party.' The report of the case in 14 Bom. L.R. 386 shows that the District Judge held that Section 10A must be read with Section 2, Clause 2, which says that 'agriculturist' shall include a person who was an agriculturist when the liability in suit was incurred. On this basis he held that the plaintiffs being minors, depending for support on their father, who was an agriculturist, were also agriculturists in 1893. This decision was upset 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'. But it would have been entirely unnecessary to go into this question, if in any ease a party claiming the benefit of Section 10A must be an agriculturist at the time of the suit. It seems clear that such a contention was never even suggested in that case.
11. I, therefore, hold that the only point of law raised before us fails, and would dismiss the appeal with costs.
12. I agree.