1. Plaintiff is the transferee of a mortgage of certain immoveable properties situate at Brahmapuri in the Pandharpur taluka of the Sholapur District which was executed by defendant No. 1, as manager of a joint Hindu family, for Rs. 4,917-10-0, and has brought this suit against the defendants to enforce the mortgage security. Plaintiff prays (a) for a decree for the amount and the interest due thereon and the costs of the suit, (b) in default of payment, for sale of the mortgaged properties, and (c) for a personal decree in the event of a deficiency. Defendant No. 1 has put in his written statement contending that he is an agriculturist, and that the Court has no jurisdiction in respect of prayers (a) and (c) of the plaint. By an order dated March 18, 1931, the suit was ordered to be placed on board for trial of issues whether defendant No. 1 is an agriculturist within the meaning of Section 2(1) of the Dekkhan Agriculturists' Relief Act. Section 2(7) provides that an agriculturist shall be taken to mean a person who by himself or by his servants or tenants earns his livelihood wholly or principally by agriculture within the limits of the district to which the Act applies, or who ordinarily engages personally in agricultural labour within those limits. Defendant No. 1 contends that he comes under both the branches of the definition, viz., that his principal income is from agricultural sources, and also that he ordinarily engages personally in agricultural labour. It is generally left to the Commissioner of this Court for taking Accounts to determine whether a person's income is derived principally from agricultural sources, and that is generally done by ascertaining whether his income from agricultural sources exceeds his income from non-agricultural sources for a period of three years before the date of the suit. But it is for the Court to determine whether the person who claims to be an agriculturist under the second branch of the definition is a person who ordinarily engages personally in agricultural labour within the limits of the district to which the Act applies.
2. The word 'ordinarily' which occurs in Section 2(1) shows that it is only a bona fide agriculturist who comes within the definition, and as has been held by Mr. Justice Madgavkar in Sahoo v. Narayanshastri (1930) 33 Bom. L.R. 476 the word 'ordinarily' there means 'regularly' and 'habitually' and not casually, whether it be for a longer or a smaller portion of the day. The word does not, however, mean 'solely.' The definition does not cover the case of a person who leaves his usual avocation and only temporarily engages personally in agricultural labour. It was pointed out by West J. in Tulsidas Dhunjee v. Virbussapa I.L.R. (1880) Bom. 624 that 'the status of agriculturist and of trader is not to be taken up and laid aside momentarily in order to embarrass a creditor.' At the same time it is plain that any person who satisfies the condition imposed by the latter portion of the definition is an agriculturist irrespective of the proportion which his strictly agricultural income may bear to any other income accruing to him, whatever that proportion may be. If he ordinarily engages personally in agricultural labour within the defined limits, he is an agriculturist within the second part of the statutory definition : see Bhikha v. Raichand (1912) 15 Bom. L.R. 68
3. The onus of proof, however, is on the person who sets himself up as an agriculturist. Defendant No. 1 had three witnesses examined on commission. His cousin Ramchandra Dasrath, who was joint with him along with his own brother until a partition which took place in or about 1925 or 1926, was examined in Court before me. Defendant No. 1 himself also gave evidence. Defendant No. 1 stays at Pandharpur, and has a cloth shop there which he has been carrying on for the last twenty-three to twenty-four years. His son Namdev, defendant No. 2, has another shop also, but it is alleged by defendant No. 1 that defendant No. 2 is separate from him. The lands in question on which according to him he ordinarily engages personally in agricultural labour are two plots Nos. 99/1, 99/2, situate at Gopalpura, which is about one and a quarter to one and a half miles away from Pandharpur, and the area admeasures about twenty-six acres. These plots of land were mortgaged in or about 1920-1921 to defendant No. 1 and his cousin Ramchandra by one Balu Babaji Pavar, and possession was given of the said lands to the mortgagees. It is alleged to be a self-redeeming mortgage given for sixteen years. In or about 1925-1926 defendant No. 1 separated from Ramchandra, and an arrangement was arrived at under which defendant No. 1 was to cultivate the lands for two years and Ramchandra for one year in rotation. It is in evidence that from about April 1929 till about March 1931, roughly, defendant No. 1 cultivated these lands, and it is his turn again to cultivate them since about March or April of this year. The work of cultivation is spread over a period of about eight months in the year beginning roughly from the month of Shravan and going up to Fagan, that is to say, from about August to March. During the remaining four months of the year no agricultural work is done. The work of agriculture consists of ploughing the land, harrowing it, sowing seeds, weeding the land, watching the crops grow, harvesting, then taking out the stalks of the crops from the land, cutting the stalks, making bundles of them and heaping them in circular form, then cutting off the ears of the corn from the stalks, and lastly thrashing out the corn from the ears and separating it from the chaff. Out of all this work defendant No. 1 does the work of weeding out superfluous plants from the land, watching the crops grow and protecting them from destruction by stray cattle, cutting the stalks, and making bundles of them, all by himself. During the three months of the harvesting, that is, during the months of Posh, Magh and Fagan, defendant No. 1 has also got to stay in the fields. It is not, however, clear whether he has got to stay there day and night, but it does not seem to be necessary for him to do so, considering that the place where he lives in Pandharpur is only about a mile or a mile and a half away from these lands. The work of weeding out superfluous grass, taking out the stalks from the land, and thrashing the corn from the ears is also done by defendant No. 1, but with the help of labourers engaged by him. The work of ploughing, harrowing and sewing is entirely done by engaging labourers. But even that work, according to defendant No. 1, is done under his supervision and instruction. The extracts from the Record of Rights for 1929-1931 show that defendant No. 1 worked personally either through or with the help of labourers. These extracts have not been officially translated, but I had the benefit of the interpretation by the Head Marathi Translator of this Court who said that the words contained in the extracts which were relied upon meant that the work was done by the defendant No. 1 personally either through or with the help of labourers. Out of the three witnesses examined on commission, one of them Hari Parasharam Patil, who is the officiating Police and Mulki Patil of the place for ten to twelve years, said that he owned lands quite adjacent to those of defendant No. 1. He, however, stated that defendant No. 1 had no bullocks nor agricultural implements of his own. The other witness is Digambar Eknath Thathe, the officiating Kulkarni of the place for about twenty years. These are, in my opinion, independent witnesses, and have substantially corroborated the evidence given by defendant No. 1 and Ramchandra in Court which I believe. They both say that they have personally seen defendant No. 1 work on the lands. There is the evidence of a third witness, Tatya Bhujanga, who also corroborates defendant No. 1 to some extent. He stated that he harrowed the lands during one season on hire from defendant No. 1. As against this evidence the only evidence on which the plaintiff relies is the evidence of one witness, Dattatraya Narayan Phukte, who stated in one place that it was not a fact that defendant No. 1 did agricultural work personally, and ended his cross-examination by saying that he did not actually know whether defendant No. 1 personally cultivated his lands at Gopalpura. These are inconsistent statements, and they do not in any way support the plaintiff.
4. It is really difficult for the Court to lay down any rules for determining the exact nature and quantity or extent of the work required to be done by an agriculturist to bring himself within the second branch of the definition. It may, however, be stated generally, first, that it is not necessary for the agriculturist to engage personally in agricultural labour throughout the day; it is enough if he is engaged for a larger or a smaller portion of the day. It must, however, be an appreciable amount of work which he engages in, and not merely some casual or desultory work in the fields. Secondly, the agriculturist cannot be said to engage personally in agricultural labour if he gets the work done only through labourers, but he can still be said to be engaged personally, if he himself works side by side with the labourers employed by him. He need not. cultivate the lands all by himself. In fact defendant No. 1 could not be expected to cultivate twenty-six acres of land all alone. As I have already stated, the extracts from the Record of Rights for 1929-1931 shows that he worked personally by employing labourers or also with their help. Even before that period, according to the Record of Rights, one of these plots was in 1928-1929 cultivated by him and one by Ramchandra though it was the turn of Ramchandra to cultivate both during that year. Thirdly, even if the principal income of the agriculturist is from non-agricultural sources, as for instance, from a shop or from money-lending, he would still be an agriculturist, if he does an appreciable amount of agricultural work for a portion of a day. If he does engage himself in that manner, his attending to some other work during another portion of the day, such as, writing books of account, or carrying on correspondence, cannot necessarily deprive him of the status of an agriculturist under the second part of the definition. It was contended that in several suits filed by defendant No. 1 on promissory notes he had actually described himself as a trader, but it has been laid down in Kadappa v. Martanda I.L.R. (1892) Bom. 227 that a person who describes himself as a trader is not thereby estopped from showing that he is an agriculturist, unless by representing himself as a trader he has induced the plaintiff' to act upon that representation, There is no evidence of any such inducement here. It may also be stated that the defence of 'agriculturist' has nothing to do with a man's wealth or social position in life. A difficulty may sometimes arise if a person follows two occupations wide by side and at the same time, for then the question will be, which of these two occupations he ordinarily follows : see Savalpuri v. Bala : (1912)14BOMLR566 . In that case, however, it was not suggested that the agriculturists who were all 'Bairagis' or mendicants came within the first branch of the definition, and the appeal Court held that they could not take advantage of the second part, because they followed two distinct occupations, and the question was which was the occupation they ordinarily followed. In my opinion that statement, as it stands, is much too wide, and in any event it is not consistent with the judgment of the appeal Court in Bhikha v. Raichand and the judgment of Mr. Justice Madgavkar in Sahoo v. Narayanshastri, to both of which I have referred above. Even if a person follows another occupation during some portion of the day, he may still be an agriculturist if during another portion of the day he engages ordinarily, that is, habitually and regularly, in agricultural labour. He cannot follow two occupations at the same time of the day. Fourthly, whether a person who claims to be an agriculturist has or has not any bullocks or agricultural implements of his own is a matter to be considered. But the mere want of possession of these is not conclusive against him. In this case the first witness examined on commission stated that defendant No. 1 had no bullocks nor implements, but that statement cannot be correct, because defendant No. 1, as I believe him, does the work of weeding out the superfluous plants and cutting the stalks and separating the ears from the stalks, and for that purpose he must have some implements. Fifthly, it is not necessary that the agriculturist should be engaged in agricultural labour personally throughout the year, as there are months when no agricultural work is done at all. It was held in Tulsidas Dhunjee v. Virbussapa I.L.R. (1880) Bom. 624 that an agriculturist must have earned his livelihood by farming for at least one full agricultural season before the suit, and similarly I would say that he should have been engaged personally in agricultural labour for at least one agricultural season before the date of the suit, and he should also be so engaged at the date of the suit. This is the minimum period. It is not necessary that during the agricultural season the agriculturist should work from day to day. His omission to work on a day or some days here and there will not matter, provided he has engaged personally in agricultural labour for the substantial portion of the agricultural season. Defendant No. 1 was not only engaged personally in 1929-1931, and also from April of this year, but he has stated that even before these two plots of land were mortgaged to him and Ramchandra in 1920-21 he had cultivated lands in Gopalpura taken on lease from the Jamkhandi State, though with the help of labourers.
5. I have mentioned some of the important rules for guidance in determining whether a person comes within the second branch of the definition of 'agriculturist'. Applying these rules to the evidence that has been led in the case, and considering the evidence led on either side substantially, I am of opinion that defendant No. 1 has proved satisfactorily that he is a person who ordinarily engages in agricultural labour. I would, therefore, answer the issue in the affirmative. I also order that the plaintiff should pay defendant No. 1's costs of and incidental to the trial of the issue.