1. The plaintiff's suit under the Dekkhan Agriculturists' Relief Act was dismissed in both the lower Courts which held that she was not an agriculturist within the meaning of Section 2 of the Dekkhan Agriculturists' Belief Act. She applies in revision.
2. The facts as found by both the lower Courts are that the plaintiff is a Maratha woman and that she was left a widow at an early age and returned to her parent's house and assisted in the cultivation of her brother's lands, which are situated close to the town of Satara, She has also been in the habit, for many years past, of taking her own milk along with that purchased from others, for selling it at a profit in the town. From the profits of the sale of milk she had purchased, and on the date of the institution of the suit was in possession of, some small lands of her own. The profit from these lands is, however, less than her profit from the sale of milk. It also appears not only from her own evidence but also from that of the defendant-opponent that on her return to her village she assists her brothers in the cultivation of their lands in the afternoon, and also takes some part personally in the cultivation of her own lands, even though her own part may be confined to work more suitable to a woman such as weeding. On these facts both the Courts held, firstly, that her agricultural income was less than the income derived from of the sale of milk, and secondly, that her personal labour in her own field or in those of her brothers did not suffice to cause her 'ordinarily' to engage personally in agricultural labour.
3. On the question of jurisdiction, under Section 115, Civil Procedure Code, this Court is reluctant to interfere in cases under the Dekkhan Agriculturists' Belief Act, where the revisional powers of the District Judge suffice: Gurubasaya v. Chanmalappa ILR (1894) 19 Bom. 286. On the other hand, it is argued for the petitioner that the case now in question is one which repeatedly occurs in different parts of the Presidency and an authoritative decision is therefore a matter of some importance. As this application has been admitted, it must, I think, be disposed of on the merits.
4. On the merits the finding on the first point in regard to the income cannot be challenged. The second point is, however, more doubtful. If, by the word 'ordinarily' is meant solely or in the main, so that, her livelihood is derived from her engagement in agricultural labour, the conclusion of the lower Courts would be correct. But, as pointed out by this Court in Bhikha v. Raichand (1912) 15 Bom. L.R. 68, the meaning of 'ordinarily' cannot thus be limited. It only means regularly and habitually, not casually, whether it be for a larger or a smaller portion of the day. The facts in the present case, as found by the lower Courts, indicate the daily life of the plaintiff. She obtains milk from her own animals and those of others early in the morning and goes to Satara to sell it, not in a shop or a place of her own but by the road-side or to ordinary customers; and having disposed of it returns at an hour which necessarily cannot be fixed, as it would depend on how quickly she sells off her milk. On her return she supervises and regularly engages personally in agricultural labour, whether weeding or other, either in her own fields or in those of her brothers. Even if the number of hours she thus engages personally in agricultural labour varies and may sometimes be small, it is impossible to deny that she is a person who ordinarily engages personally in agricultural labour in her own fields or in those of her brothers. And even if the income from the sale of milk exceeds her income from her own lands, or what she might or might not obtain by her personal labour, she falls within the latter part of the definition of ' agriculturist' under the first clause of Section 2 of the Dekkhan Agriculturists' Relief Act. The case, as I have said, is not uncommon. Nor is there any reason to suppose that when an agriculturist woman such as the plaintiff, who has lands of her own and who ordinarily engages herself in agricultural labour, finds that labour does not occupy the whole of her day and supplements it usefully by the sale of milk, that therefore the legislature intended that she should be penalised by being taken out of the scope of the definition of 'agriculturist', when but for such additional work by the sale of milk, she would undoubtedly fall within that definition, Bhika v. Raichand was a case of Bharvads who were also sellers of milk and it has some analogy to this case. On the facts of this particular case, though the actual hours of personal engagement in agricultural labour may vary and be small, she ordinarily engages personally in agricultural labour and is therefore an agriculturist.
5. The application is allowed, the decrees of the lower Courts set aside, and the suit remanded to the trial Court for trial on the merits.
6. The petitioner will obtain her costs in this Court and in the District Court. Costs in the trial Court to be costs in the cause.