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Sadashiv Mahadeo Deshmukh Vs. Jamnadas Lakhanchand - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 527 of 1957
Judge
Reported in(1957)59BOMLR1233
AppellantSadashiv Mahadeo Deshmukh
RespondentJamnadas Lakhanchand
DispositionAppeal dismissed
Excerpt:
.....personally cultivating portion of his lands and leasing remaining lands to tenants-income, from lands leased, derived by heirs of such person after his death-whether such income agricultural income in hands of heirs.; a person who owned certain lands cultivated a part of these lands personally, for the cultivating seasons in the two years preceding the date of the coming into operation of the bombay agricultural debtors relief act, 1947. the remaining lands were leased out to his tenants. he died leaving as his heirs his widow and a minor son. on the question whether the income derived by his heirs from the lands leased to the tenants was agricultural income in their hands:- ; that the income derived by the heirs of the deceased by virtue of the leases in favour of the tenants became..........2, sub-section (5), enacts:- 'debtor' means-(a) an individual-...(iii) who has been cultivating land personally for the cultivating seasons in the two years immediately preceding the date of the coming into operation of this act...; and(iv) whose annual, income from sources other than agriculture and manual labour does not exceed 33 per cent, of his total annual income or does not exceed rs. 500, whichever is greater stopping here for a moment, there are two requirements in order to constitute an individual a debtor. the first is that he must have been cultivating land personally for the cultivating seasons in the two years preceding the date of the coming into operation of this act. the relevant years in this case are the year]s 1945-46 and 1946-47, and it is proved on the record-and.....
Judgment:

Tendolkar, J.

1. This second appeal raises a question of construction of Section 2, Sub-section (5), Explanation II, of the Bombay Agricultural Debtors Belief Act, 1947. The matter arises in this way. The appellants before us, who were the original plaintiff's, filed a suit under the Dekkhan Agriculturists Relief Act in the Court of the Joint Civil Judge at Panvel, being Suit No. 478 of 1950, for a, declaration that certain transactions of sale by plaintiff No. 1's deceased father were in fact mortgages. One of the points raised by way of defence in the said suit was that the plaintiff was a debtor within the meaning of the Bombay Agricultural Debtors Relief Act, 1947; and it is common ground that if he was such a debtor, then his remedy was under the Bombay Agricultural Debtors Relief Act and his suit under the Dekkhan Agriculturists Relief Act was not maintainable. The learned trial Judge held that he was not a debtor within the meaning: of the Bombay Agricultural Debtors Relief Act, but he held on the merits that the transactions were in fact mortgages although in form they were sales and, therefore, decreed the plaintiffs' claim. On appeal, the District Judge, Kolaba, reversed the decision of the learned trial Judge and held that the plaintiff was a debtor within the meaning of that word in the Bombay Agricultural Debtors Belief Act and, therefore, the suit was not maintainable. The learned District Judge also took the view on the merits that the transactions were in fact mortgages, so that there are concurrent findings of fact on the question of merits. The only point is whether the decision of the learned District Judge on appeal, that the plaintiff was. a debtor under the Bombay Agricultural Debtors Relief Act, is correct. Now, turning to the relevant definition, Section 2, Sub-section (5), enacts:-

'debtor' means-(a) an individual-...

(iii) who has been cultivating land personally for the cultivating seasons in the two years immediately preceding the date of the coming into operation of this Act...; and

(iv) whose annual, income from sources other than agriculture and manual labour does not exceed 33 per cent, of his total annual income or does not exceed Rs. 500, whichever is greater

Stopping here for a moment, there are two requirements in order to constitute an individual a debtor. The first is that he must have been cultivating land personally for the cultivating seasons in the two years preceding the date of the coming into operation of this Act. The relevant years in this case are the year]s 1945-46 and 1946-47, and it is proved on the record-and there is no dispute-that during this period 5 acres 29 gunthas of land were cultivated by the plaintiff personally and 94 acres of land had been leased out to tenants. Therefore, the requirement of personal cultivation in the two preceding years was satisfied. 'We then come to the-second requirement and that is that the income from sources other than agriculture and manual labour should not exceed 33 per cent, of his total annual income or Rs. 500, whichever is greater. Now, in determining what his income from agriculture is, one has to take into account Explanation I to this sub-section which, in so far as it is relevant, is in these words:-

For the purposes of this clause 'agriculture'...does not include leasing of land of cutting only of wood;

Therefore, income derived from leasing of lands is not income from agriculture for the purpose of determining whether it exceeds 33 per cent, of the total annual income or Rs. 500 whichever is greater. Now, the position, again on facts proved on the record, is that in the year 1945-46 the income of the plaintiff from personal cultivation was Rs. 500 while the income from lands leased to tenants was Ks. 3,176, whilst in 1946-47 the income from personal cultivation was Rs. 500 and the income from lands leased was Rs. 2,576. If the matter stood there, then since income from lands let out to tenants is not agricultural income, the plaintiff would not have satisfied the second requirement of the definition as the income from sources other than agriculture would have exceeded 33 per cent, of his total income or Rs. 500. But, in this case, the plaintiffs were the widow and minor son of the deceased Mahadeo Deshmukh and there is a provision in Explanation II to Section 2, Sub-section (5), with regard to the heirs of a deceased person and the nature of the income in their hands. Mahadeo had died in 1944, The relevant part of Explanation II is in these words:-

In the case of-

(a) any person who dies leaving as his heir, a widow or a minor or a person who is subject to physical or mental disability, or

(b) an undivided Hindu family, in which there are no adult male co-parceners capable of cultivating the land personally, the income derived by such heir or family by the lease of land for an agricultural purpose shall, notwithstanding anything contained in Explanation I, be deemed to be income from agriculture.

It is urged on behalf of the respondents to this appeal that since the plaintiffs were heirs of the deceased Mahadeo, the income derived by them by lease of land became income derived from agriculture by reason of Explanation II and notwithstanding Explanation I; and this is what the learned District Judge held on an interpretation of Explanation II.

2. Now, Mr. Eege for the appellants before me has urged two contentious with regard to the correct interpretation of Explanation II. His first contention is that the Explanation in so far as Clause (a) is concerned embraces only such land as was cultivated personally by the deceased and has been leased by the heir, owing to the inability of such heir to cultivate the land personally. His second contention is that, in any event, the words ''by the lease of land' should be interpreted as referring to a lease given by the heir and does not include within its scope leases given by the deceased himself.

3. Taking the first of these contentions, prima facie there is nothing in the wording of Explanation II to indicate that the Explanation was to be restricted to lands which were cultivated personally by the deceased person; but Mr. Kege relies upon u corresponding provision in s; 2, Sub-section (14), and suggests that on a parity, of reasoning Explanation II to Sub-section (5) should be interpreted in the same manner as the express provisions of Explanation I to sub-is. (14). Now, Sub-section (14) gives the definition of 'cultivating personally' and that definition is:-

'to cultivate personally' means to cultivate fay one's own labour or by the labour of any member of one's family or by servants or hired labour under one's personal supervision or the personal supervision of any member of one's family.' Explanation I to the sub-section reads:-

If a person who was cultivating personally dies leaving as his heir a widow or a minor or a person who is subject to physical or mental disability, such heir shall be deemed to cultivate the land personally notwithstanding the fact that the land is cultivated on behalf of such heir by servants or hired labour or by tenants.

Mr. Rege's argument is that there are two requirements in the definition of a 'debtor' under the Act. The first is of personal cultivation and the second is as to the percentage of agricultural income in the total income. With regard to personal cultivation, which is the first requirement, there is no doubt that Sub-section (14) provides that, if a dead person was cultivating personally, then alone his heirs under a disability shall be deemed to cultivate the land personally even if the land is cultivated by hired labour or by servants or by tenants. Mr. Kege says, therefore, that in the case of income also, the intention of the Legislature could not have been different. Now, the intention of the Legislature is normally to be gathered from the language used in the Act itself and not from any extraneous sources. It is true that in respect of one requirement of the definition of a 'debtor' the Legislature only conferred on the heir of a deceased person the privilege, if he is under a disability, to consider cultivation on behalf of such heir by servants or hired labour or by tenants as personal cultivation. It would not be right from that fact to infer that the intention in enacting Explanation II to Sub-section (5) was similar in the absence of any words in that sub-section to indicate that such was the intention. The words are 'the income derived by such heir...by the lease of land', and those words do not, in my opinion, in any sense import even remotely the concept that the lands must have been originally personally cultivated by the deceased person. Indeed, this submission of Mr. Rege becomes the more unacceptable because Explanation II not only deals with the heirs of a deceased person who are under disability, but it also deals in Clause (b) with the case of an undivided family in which there are no adult male coparceners capable of cultivating the land personally. In that case, it could not be said that somebody did cultivate the land personally before and it is only when the disability, namely, the non-existence of an adult male coparcener arose, that in respect of such land it was to be considered whether the income derived by the family by the lease of land was or was not agricultural income.

4. Turning next to the second part of the submission of Mr. Eege, Mr. Rege says that the words 'by the lease' do not mean the same thing as 'from the lease' and the word 'by', says Mr. Eege, imports the concept that the lease itself was by the heir who was under a disability. Here again, in the first instance, if 'by the lease' is a correct expression at all, it does not appear to me that it can mean anything different from 'under the lease', and one cannot import into the preposition 'by' the concept that the lease itself must have been by the heir under disability; for here again, when one comes to test this part of the submission of Mr. Rege by reference to the case of an undivided family in which there are no adult male coparceners capable of cultivating the land personally, it is difficult to see who the lease can be by. Indeed, in the case of the heir himself who is under a disability, physical or mental, he has no capacity to lease. It appears to me, therefore, that there is no justification for importing into the words of the Explanation, which prima facie convey the meaning that the income was derived by the heir by virtue of a lease of the land, anything more or less than the Explanation itself says. There is no doubt that the income of Rs. 3,176 in the year 1945-46 and Rs. 2,567 in the year 1946-47 was income derived by virtue of the leases in favour of tenants, and since this income was derived by the heir who was under a disability by virtue of Explanation II and notwithstanding Explanation I, it is agricultural income.

5. The result, therefore, is that the appellant before me has income from agricultural sources only and no other income. He also cultivates land personally and satisfies the requirements of the definition of 'debtor' under the Bombay Agricultural Debtors Relief Act. The learned District Judge, therefore, in my opinion, came to the correct conclusion in holding that the appellant was a debtor and, therefore, the suit was not maintainable.

6. I, therefore, uphold the decision of the learned District Judge and. dismiss this appeal with costs.


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