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Tarabai Tukaram Shelatkar Vs. Kamalakant Govind Dalal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 1052 of 1953
Judge
Reported in(1955)57BOMLR1101
AppellantTarabai Tukaram Shelatkar
RespondentKamalakant Govind Dalal
Excerpt:
.....word 'agriculture'' used in b.a.d.b. act-whether application for adjustment of debts comprises a suit for redemption of mortgage-whether transfer by person whose debts are being adjusted and others is transfer by such person.;the raising of cocoanuts or the raising of fruit trees or betel leaves is included in the word 'agriculture as used in the bombay agricultural debtors relief act, 1947.;gilchrist v. lanarkshire (1834-1840) 35 sc. l.r. 663 referred to.;even though the effect of any award which may be passed upon an application for adjustment of debts of a debtor made under the bombay agricultural debtors relief act, 1947, may be that the mortgage might go upon the passing of the award, the application for adjustment of debts does not comprise a suit for redemption of a mortgage...........the trial court, that is, that this application could not be proceeded with because it comprises a suit for redemption of a mortgage and the other mortgagors, namely, the sons of the applicant had not been made parties i to the application.5. now, the co-mortgagors would be necessary parties to the suit only in case the application is regarded as in some manner comprising a redemption suit. the application could not be said to be not a redemption suit only because it comprises matters which will not be decided in a redemption suit, that is, the adjustment of debts. but mr. adarkar says that the debts are adjusted after determining what is the amount due upon the mortgage and scaling them down as provided by the act. as a result of the award which would be made the possession would be.....
Judgment:

Bavdekar, J.

1. This is an application for revision arising from an application for adjustment of debts made by the applicant, who claimed that she was a debtor. The debt sought to be adjusted was supposed to be due upon a transaction of mortgage couched in the form of a sale, and the sale deed was executed by the applicant and her two sons, and upon a question being raised before the learned trial Judge as to whether the applicant was a debtor, the learned trial Judge held that she was not. In order to prove the contention that she was a debtor, the applicant had to prove under the provisions of Section 2(5)(a)(ii), that she held the land for agricultural purposes, and under Clause (in) she had been cultivating land personally for the cultivating seasons in the two years immediately preceding the date of the coming into operation of the Act, The applicant said that she had got 15 cocoanut trees, 4 mango grafts, 12 betel nut trees and she used to water them and take their fruit. The learned trial Judge even though he found that the applicant was rearing these trees said that this did not fall within the definition of 'cultivates land', and secondly he said that in any case her income from non -agricultural sources exceeded Rs. 1, 500. He, therefore, held that the applicant was not a debtor an is raissed her application. In appeal the learned appellate Judge held that the applicant was not cultivating land, and finding that she was consequently not a debtor, dimissed her appeal.

2. The applicant has come in revision, and the first point which arises for determination is whether it could be said that the applicant held land used for agricultural purposes, and secondly whether she had been cultivating land personally. So far as the question of seasons is concerned, it is not in dispute that the conditions have been satisfied.

3. Now, 'agriculture' has not been defined by the Act; but Murray gives the definition of Agriculture' as the

science and art of cultivating the soil; including the allied pursuits of gathering in the crops and rearing live stock; tillage, husbandry, farming in the widest sense.

Now, land may be cultivated in various ways. One may, for example, grow in it dry crops. One may grow in it by means of water from a river, canal or well, vegetables, fruit, sugarcane or betel leaves or other things. It is impossible to say that it is not cultivating land to grow in it either betel leaves or vegetables or for the matter of that cocoanuts. It is said however that the word 'agriculture' is to be distinguished from horticulture, which the Shorter Oxford Dictionary defines as:

the cultivation of a garden; the art or science of cultivating or managing gardens, including the growing of flowers, fruit and vegetables.

and in support of this contention reliance is placed upon a remark in a Scottish case referred to in Stroud's Judicial Dictionary, Vol. I, Third edn. namely, Gil-christ v. Lanarkshire (1834) 35 Sc. L.R. 663.

There are three main methods of utilising the soil, i.e. agriculture, horticulture, and forestry. These three things are entirely distinguishable, and any one of them is not to be held, as including any other without special provision to that effect.

The case was under the Land Valuation (Scotland) Amendment Act, 1895, and the question which arose for interpretation was the meaning of the words 'for agricultural purposes' in that Act. Now, one can understand that one may use the word 'agriculture' as distinguished from 'horticulture'; but all the same it is not possible to say that the word 'agriculture' will not in chide the growing of fruit trees or vegetables. If regard is had to the definition of Murray that agriculture is the science and art of cultivating the soil, any way in which one cultivates the soil would be included in the dictionary meaning of the word 'agriculture'. This is especially so when agriculture includes the allied pursuit of stock breeding and means husbandry or farming in the widest sense.

4. It is contended however that even though it could be said that the applicant was cultivating the land personally when we are considering the question under Clause (ii) of Section 2(5)(a), it must be taken that agriculture does not include horticulture, because to Section 2(5)(6) there is added an Explanation, and that is

For the purposes of this clause 'agriculture' includes horticulture, the raising of crops or garden produce, dairy farming, poultry farming, stock breeding and grassing, but does not include leasing of land or cutting only of wood.

It is said that in case the word 'agriculture' wherever it was used in Act was intended to include horticulture, there would be no reason for the Legislature to say in Explanation I to Section 2(5)(b) that in that particular clause agriculture would include it. It has got to be remembered however that it is not as if Explanation I to Section 2(5)(b) says 'for the purpose of this clause 'agriculture' includes horticulture'. If the Explanation had stopped there, one could have understood the argument that the Explanation precluded agriculture in other parts of the statute being given a meaning which included horticulture. But it is obvious that the Legislature enacted Explanation I because it wanted to include in the word 'agriculture', which was used in Section 2(5)(b) several things, for example, dairy farming, grazing and so on. In the second instance, the explanation seems to indicate a desire to use abundant caution. For example, after using the word 'horticulture' it includes in the definition 'raising of garden produce'. Now, horticulture by definition is an art or science of cultivating or managing gardens, including the growing of flowers, fruit and vegetables, Similarly, it includes raising of crops, That is, by definition of agriculture in the dictionary, part of it. So is stock breeding. It is obvious, therefore, that the Legislature wanted to exercise abundant- caution in regard to the interpretation of the word 'agriculture' as used in Section 2(5)(b), and it may have included the word 'horticulture' in that explanation by way of abundant caution. No inference arises from the fact that it is included in the word 'agriculture' for the purposes of Clause (b) of Section 2(5) that the raising of cocoanuts or the raising of fruit trees or betel leaves is not included in the word 'agriculture' as used in other parts of the statute. It was enacted to relieve agricultural indebtedness and it is impossible to accept a meaning of the word 'agriculture' which would exclude from its purview a large number of cultivators. In my view, therefore, the applicant was a debtor, and the case will consequently have to be remanded to the learned appellate Judge for disposing of the appeal in accordance with the law. But Mr. Adarkar, who appears on behalf of the opponent, has raised before me two questions, one of which was raised even before the trial Court, that is, that this application could not be proceeded with because it comprises a suit for redemption of a mortgage and the other mortgagors, namely, the sons of the applicant had not been made parties I to the application.

5. Now, the co-mortgagors would be necessary parties to the suit only in case the application is regarded as in some manner comprising a redemption suit. The application could not be said to be not a redemption suit only because it comprises matters which will not be decided in a redemption suit, that is, the adjustment of debts. But Mr. Adarkar says that the debts are adjusted after determining what is the amount due upon the mortgage and scaling them down as provided by the Act. As a result of the award which would be made the possession would be handed over to the debtor; instalments would be given to him, and in case of failure to pay instalments, Sufficient portion of the mortgaged property would be sold for recovery of the instalments. The mortgage must be taken to have gone, and consequently the application comprises a suit for redemption of a mortgage.

6. Now it cannot be denied that, so far as the applicant debtor is concerned the effect of the award would be the redemption of the mortgage. Section 32(2) directs that when the debts have been scaled down as provided for by the Act, the amount which is finally held to be payable by the debtor is to be charged by the award upon the property which had been mortgaged. Then the Court is empowered to direct that possession should be handed over to the debtor and to grant him instalments for payment of the debt, and it is only when there is a failure to pay instalments that the award would be executed an sufficient portion of the mortgaged property would be sold. If the debtor pays all the instalments, the result undoubtedly would be that he would get, the property free of the mortgage. Even though therefore the result of the award would, be that the mortgage would go, it is not possible to say that the application for adjustment of debts does comprise in some manner a redemption suit. It may frequently happen that only some of the persons who claim that the transaction was a mortgage would be debtors (while others may not. The others would not be entitled to make an application for adjustment of their debts. They would be precluded from contending that the nature of the transaction was a mortgage. It is argued that that is because Section 24 permits only a person whose debts are being adjusted to prove that a transaction which is in the form of a sale was in reality a mortgage. But even if we take the case of a mortgage, there could be no doubt that whereas the debtor would be entitled to make an application for the adjustment of his debts, any of the co-mortgagors who are not debtors will not be entitled to make such an application. The debtor may make them parties to his application. But if the debtor seeks to withdraw le application, it is obvious that, the other mortgagors cannot do anything. In mortgage suit if the person who had tiled a suit for redemption says that he wants to withdraw the suit, the others would be entitled to pray that they should be transposed as plaintiffs, and should be allowed to carry on the suit for redemption. This obviously could not be done where the application is an application for adjustment of debts, as persons who are not debtors could not be allowed to be transposed as applicants. Then again in a redemption suit the mortgage will continue until as a matter of fact the redemption takes place. There could be no question of either a preliminary decree or a final decree in the redemption suit creating a charge upon the property. In an application for adjustment of debts under the Bombay Agricultural Debtors Relief Act the award directs that the property which has been mortgaged is charged for the debts scaled down, and if any of the instalments which the award may give are not paid, then the property which is to be regarded as charged by the award thereafter might be sold in execution. Supposing the debtor failed to pay instalments, it is obviously not permissible for the co-mortgagors to say that they would redeem the property; they might come to an arrangement with the debtor and hand over to him the money necessary for the purpose of paying off the instalments. But supposing the debtor had come to terms with the mortgagee, it would be open to the mortgagee to say that in as much as the debtor is not paying oil the instalments, he is not required to allow the redemption of the property by persons who though parties to the application are not debtors, though they may be entitled to file a suit for the redemption of the property. Even the argument which Mr. Adarkar advances that the object of Order XXXIV.r. 1, which is the avoiding of the mortgagee being faced with more than one suit at the hands of the mortgagors, would be frustrated in case it is held that the application for adjustment of debts does not comprise a suit for redemption is without force, because even though it is open to a debtor to make an application for adjustment of debts, there is nothing to prevent the co-mortgagors, who are not entitled to make an application for adjustment of debts, from filing a suit for redemption of the property, even though they might have been made parties for an application for adjustment of debts made by the debtor; so that it appears that in such a case at any rate if I were to accept the contention of Mr. Adarkar that application for adjustment of debts involves suits for redemption, the mortgagee will have to face two redemption suits, one, at the hands of the debtor in his application for adjustment of debts, and the other at the hands of the co-mortgagors who are entitled to sue for redemption of the mortgage in an ordinary Court of law.

7. In my opinion in the circumstances the best view to take seems to be that even though the effect of any award which may be passed upon an application for adjustment of debts of a debtor may be that the mortgage might go upon the passing of the award, the application for adjustment of debts does not comprise a suit for redemption of a mortgage. Consequently Order XXXIV, Rule 1, has no application, and it is not necsssary to make the other transferors parties to the application.

8. If the other transferors are also debtors, they may be entitled to make an application for adjustment of their debts, and the credit is may also be entitled to make applications for adjustment of their debt. But if such applications are made, they can all be consolidated. There could be no difficulty on that account.

9. The last point which Mr. Adarkar makes is that Section 24(1) empowers the Court to declare a transfer to be in the nature of a mortgage though it is not couched in the form of a mortgage deed only when the transfer is by a person whose debts are being adjusted under the Act. Mr. Adarkar says that where land is transferred among others by a person whose debts are not being adjusted, on the ground that he is not a debtor, the transfer cannot be said to be a transfer of land by a person whose dsbts are being adjusted under the Act. The contention is that the transfer of land by a person whose debts are being adjusted means where there is only ore transferor transfer by a debtor, and where the transferors are two or more, transfer by persons all of whom are debtors. I fail to understand that that is the meaning of those words. It may be that those words are capable of bearing the interpretation sought to be placed upon them by Mr. Adarkar but they are capable of bearing the in tarpretation that where there is a transfer by a person whose debts are being adjusted under the Act and others, it is still a transfer by a person whose debts are being adjusted. Now, the Legislature enacted the Bombay Agricultural Debtors Relief Act of 1947 in order to enable debtors to be relieved of their debts, and if both the interpretations are possible, I fail to understand why it should be given an interpretation which will prevent redress to a number of persons who would be excluded by the interpretation of those words which Mr. Adarkar wants me to accept.

10. In the result, the rule will be made absolute, and the application remanded to the lower appellate Court for disposing of the appeal further in accordance with the law. The opponent will pay the applicant's costs of this application.


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