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Smt. Chandrawati Tewari and ors. Vs. Uttar Pradesh Government - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberExecution Decree Appeal No. 1 of 1957
Judge
Reported inAIR1961All183
ActsCode of Civil Procedure (CPC) , 1908 - Sections 60(1)
AppellantSmt. Chandrawati Tewari and ors.
RespondentUttar Pradesh Government
Appellant AdvocateP.S. Dwivedi, ;G.S. Trivedi and ;G.P. Bajpai, Advs.
Respondent AdvocateStanding Counsel
Excerpt:
civil - nature of occupation - section 60 (1) proviso (c) of code of civil procedure, 1908 - 'agriculturist' - meaning - held, if engages in agriculture for livelihood and not as a hobby will be entitled to be termed as an 'agriculturist'. - - ' 8. supposing a rich man engages in agriculture without any regard as to whether his pursuit of agriculture brings him any return or not. from the very fact that the area is large and that he utilises modern machines like tractors, it is impossible for him to till any part of the land himself or even physically gather any produce of the land. but in some year there may be a failure of the crop due to lack of rain and irrigation facilities or even due to pests. it cannot be that he is an agriculturist for five years and ceases to be an.....nigam, j.1. the state of uttar pradesh obtained a decree for costs in a proceeding under the land acquisition act against inder dutt tewari. in execution proceedings this case was registered as execution. case no. 13 of 1954. it was prayed that the house in question be sold. thereupon inder dutt tewari filed an objection under section 47 of the code of civil procedure. this was registered as miscellaneous case no. 128 of 1956. the objector urged that he was an agriculturist within the meaning of section 60 of the code of civil procedure and that the house attached and put to sale was his residential house and he was in actual occupation as such.he, therefore, prayed that the house be released from attachment and sale under section 60 of the code of civil procedure, the state government.....
Judgment:

Nigam, J.

1. The State of Uttar Pradesh obtained a decree for costs in a proceeding under the Land Acquisition Act against Inder Dutt Tewari. In execution proceedings this case was registered as Execution. Case No. 13 of 1954. It was prayed that the house in question be sold. Thereupon Inder Dutt Tewari filed an objection under Section 47 of the Code of Civil Procedure. This was registered as Miscellaneous Case No. 128 of 1956. The objector urged that he was an agriculturist within the meaning of Section 60 of the Code of Civil Procedure and that the house attached and put to sale was his residential house and he was in actual occupation as such.

He, therefore, prayed that the house be released from attachment and sale under Section 60 of the Code of Civil Procedure, The State Government filed an objection pointing out that the objector was not an agriculturist as agriculture was not his main source of income and he did not personally till the land. It was pointed out that he owned many buildings. Two other objections were taken urging that the objector had previously mortgaged the house and that he was in possession only of a portion of the building.

2. On this objection the learned District Judge framed three issues :

1. Whether the objector is an agriculturist as contemplated by Clause (c) of the proviso to Sub-section (1) of Section 60 C. P. C. ?

2. Whether he occupies the building in dispute?.

3. Whether the Clause (c) of the proviso to Sub-section (1) of Section 60 C. P. C. is not applicable to the case because he has mortgaged the house to Sardar Sadhu Singh?.

The learned District Judge held that mortgage was not in favour of the decree-holder and that agriculture was not the judgment-debtor's main source of living and he did not till the soil with his own hand but got it tilled through servants. The learned District Judge pointed out that, according to the objector himself, his annual income from agriculture was only 150/- a year, whereas his income from the house properties was Rs. 181/- per month, i.e., Rs. 2172/- a year.

It was admitted before the learned District Judge that the objector was not the only person in occupation of his house. The learned District Judge, accordingly, dismissed the objection with costs. Against that decision, this first execution of decree appeal has been preferred by the five legal representatives of Inder Dutt Tewari. The appeal came up before a learned single Judge. He has made a reference to a Full Bench. That is how the case has come up before us.

3. The learned single Judge has referred to the case of Tirloki Prasad v. Kunj Behari Lal : AIR1935All448 and the case of Shiamlal v. Smt. Sahodra Devi : AIR1960All429 and has suggested that the difference of opinion expressed in the two decisions be reconciled. He has further stated:

'But even so the authorities of other High Courts are not to be given effect to by a learned Single Judge of this Court when there are Division Bench cases of this Court to follow and to the contrary. Mr. Justice Dhavan's reasoning however cannot be brushed aside........It has to be considered whether a person, because he carries on agriculture while at the same time he is possessed of other substantial income should nonetheless be put in a protected position when other persons who have substantial income not derived from agriculture are not......... I think it is necessary that a Full Bench should be constituted to consider whether Triloki Prasad's case : AIR1935All448 has been properly decided or whether Shiamlal's case : AIR1960All429 is the correct decision.' Section 60 of the Code of Civil Procedure so far as it is relevant for our purposes reads :

60(1) The following property is liable to attachment and sale in execution of a decree, namely, ........houses or other buildings...... .and, save as hereinafter mentioned all other saleable property, movable or immovable, belonging to the judgment-debtor.......... . Provided that the following particulars shall not be liable to such attachment or sale, namely:

(a)............................

(b) tools of artizans, and, where the judgment-debtor is an agriculturist, his implements of husbandry and such cattle and seedgrain as may, in the opinion of the Court be necessary to enable him to earn his livelihood as such..............

(c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist and occupied by him.'

It is clear that under Sub-clause (c) the 'particulars' which has been exempted from liability to attachment and sale should be :

(1) a house or other building;

(2) It should belong to an agriculturist and

(3) It should be occupied by him. There is no doubt that the 'particular' attached is a house. In this reference we are not concerned with the question whether the house is occupied by the agriculturist or not and, therefore, it is not necessary to enter into the question whether the house should be occupied by the agriculturist 'as such'. The question raised before us is merely as to who is an agriculturist and it is not necessary to state that in this reference we will concern ourselves only with that question.

4. The word 'agriculturist' is not defined in the Civil Procedure Code. The definitions in other Acts may also not be very helpful. The definition given in the Agriculturists' Relief Act (U. P. Act XXVII of 1934) and the definition given in the Debt Redemption Act (U. P. Act XIII of 1940) do not appear to be of any help to us in deciding this question. The definition given in the Dekkhan Agriculturists' Relief Act is mentioned in Aiyer's. Law Lexicon and will be considered a little later. Our attention has not been drawn to any other definition of the word 'agriculturist' given in any other Act.

5. As the word 'Agriculturist' is not defined in the Code of Civil Procedure, we have to take it that the word has been used in its every day connotation or its dictionary meaning. Dhavan, J. has referred to the meaning given in Murray's Dictionary as 'a professed cultivator of the land, a farmer.' and the meaning given in the Chambers' 20th Century Dictionary according to which an agriculturist is a person skilled in agriculture that is, in the art or practice of cultivating the land. The same dictionary also defines it as a farmer.

The Shorter Oxford Dictionary defines agriculturist as one engaged in agriculture and defines agriculture as the science and art of cultivating the soil including the gathering in of the crops and the rearing of live-stock; farming (in the widest sense). Ramanatha Aiyar's Law Lexicon refers to the definition of agriculturist given in the Dekkhan Agriculturists' Relief Act (XVII of 1879) as a person who by himself or by his servants or by his tenants earns his livelihood wholly or principally by agriculture or who ordinarily engages personally to agricultural labour within those limits.

We are not here concerned with the other meaning of agriculturist, that is, a student of the science of agriculture. We are concerned with the meaning as one who engages himself in the occupation of agriculture. Thus, it is clear that so far as the dictionary meaning is concerned, the emphasis is on the work done by the person. A person, who engages in the tilling of the soil would normally be called an agriculturist.

6. In considering what meaning is to be attached to this word, we must bear in mind the fact that this Clause (c) is an exception to the general rule laid down in Sub-section (1) of Section 60, The learned counsel for the objectors has urged that the word 'agriculturist' must be given a wide meaning. It is not possible to agree with his contention. As this word occurs not in the general Clause but in an exception to the general rule, it has, in our opinion, to be interpreted strictly. Again, the word 'agriculturist' occurs at more than one place in Section 60 and in interpreting the word 'agriculturist' we are of opinion that the whole section must be read together.

We are, therefore, unable to accept the contention of the learned counsel for the objectors that Clause (b) should not be considered at all when interpreting the word 'agriculturist' occurring in Clause (c). In the authorities to which reference will be made later both the clauses, i.e., Clause (b) and Clause (c) have been read together and we are also of opinion that the two clauses must be taken together in deciding what meaning is to be attached to the word 'agriculturist.' Reading Clause (b), it appears that the intention was to preserve the means of livelihood of artizans and agriculturists.

Thus it is not the product of art that is exempt from attachment but only the tools of the artizans. Similarly, in the case of an agriculturist what is exempt from attachment is his implements of husbandry, such as cattle and seedgrain as are necessary to enable him to earn his livelihood and such other portion of agricultural produce as may have been exempted by a notification. If on the basis of this clause it is suggested that the house which is to be exempted under Clause (c) must be the house which is occupied by an agriculturist for the purpose of agriculture, it would be a meaning consistent with the intention of the Legislature as expressed in Clause (b).

But as indicated earlier, that question is not before us. We do not wish to be understood to have said anything on that point. We have made a reference to Clause (b) only in order to indicate that in defining the word 'agriculturist' we must exclude the person who only studies the science of agriculture and does not draw his livelihood from agriculture. It appears to us that the intention was to save the economy and to avoid ruining the judgment-debtor. It was not the intention that he should not be made to hand over everything he could without affecting his future in satisfaction of the decree against him. The intention appears to have been to safeguard against his permanent ruin and also to ensure that his furture livelihood was not endangered in any manner.

7. Before referring to the authorities, we will take up a few assumed cases to clarify the meaning of the word 'agriculturist.'

8. Supposing a rich man engages in agriculture without any regard as to whether his pursuit of agriculture brings him any return or not. He may be interested, in cross-breeding the plants. He may be devoting the whole of his time to agriculture but as he does so regardless of the income he draws from it or the amount it costs him, it remains a hobby and not a source of livelihood. We are of opinion that such a person could not be termed an agriculturist within the meaning of the term as used in Section 60 of the Code of Civil Procedure. This, to our mind, makes it clear that the engagement in agriculture must be with a view that it should be a source of income and livelihood to the person who engages in agriculture.

9. Again, a person may be owner of a large area of land. He may be residing in the city and may be getting his servants to carry on agriculture in that land and it may be that he lives on the income of that land. In our opinion this person could not be said to be an agriculturist because he does not personally engage in agriculture. All that he does is that he owns a piece of land and his servants work on the land giving the profits to him. It thus follows that it is necessary that the person in order to justify his claim of being an agriculturist must personally engage in agriculture.

10. Further, a person may be owning a large farm. He may be devoting all his time and attention to agriculture. From the very fact that the area is large and that he utilises modern machines like tractors, it is impossible for him to till any part of the land himself or even physically gather any produce of the land. We are of opinion that this man would nevertheless be entitled to be termed an agriculturist, The crux of the matter, therefore, is not that the man must personally plough the land. He must, however, actively engage in the process of agriculture either by personally tilling the land or by immediately supervising the various processes of agriculture.

11. Let us now take another assumed case. A person with a large income from other sources may have a small piece of land under his cultivation. He may engage labourers to perform the actual processes but may be supervising them personally every day. However, due to the fact that the area is only small, he may be devoting only a short period every day and for the rest of the day he may be engaged in no other occupation, Thus agriculture may be his sole occupation yet we do not think that such a person could be termed an agriculturist within the meaning of section 60 of the Code of Civil Procedure. We are, therefore, of opinion that one of the conditions necessary for being termed an agriculturist is that the person concerned must devote a substantial portion of his time and attention in order to qualify for being an agriculturist.

12. Again, a man, who does very little and engages in cultivation, say, for an hour or so every day and does nothing else could, in our opinion, not be termed an agriculturist. The agriculture then though his sole engagement, does not engage him for sufficiently long as to be called his occupation or profession.

13. Again, there may be a person who has more than one source of livelihood. He may carry on a business along with agriculture or carry on agriculture along with his business. The question will then arise as to whether the business or agriculture was his profession. We are of opinion that in order to lead to the conclusion that the person concerned is an agriculturist he must devote a major part of his time, labour and attention to agriculture. The occupation, which occupies the smaller part, would normally be considered to be a side-business.

In some of the reported cases it has been held that the main source of the income of an agriculturist must be agriculture. In some cases it has even been held that the agriculturist should not be able to maintain himself without the income accruing from agriculture. While we agree that all these decisions are indicative of certain things that must not be lost sight of, we are nevertheless of the view that they lay down an inflexible rule which may be difficult to justify.

We all know that agriculture in India is what may be called a gamble in the Monsoon. Let us take the case of a person who owns about 100 acres of land. He, in a normal year, gets an income of Rs. 10,000/- from this land. Out of this money he saves and invests either in Government securities or in shares in Textile Mills. He gradually builds up an annual income of say Rs. 4,000/-from these investments. Since the man spends all his time, labour and attention OH his farm, he must, in our view, be considered an agriculturist.

Even, according to the yardstick prescribed by these decisions, the man is entitled to the designation of the agriculturist. But in some year there may be a failure of the Crop due to lack of rain and irrigation facilities or even due to pests. His agricultural income in that particular year may not be even sufficient to pay for the expenses incurred on the farm, yet we do not think that any reasonable person would deny him the status of an agriculturist merely because in one particular year he did not draw a major portion of his livelihood from agriculture.

It cannot be that he is an agriculturist for five years and ceases to be an agriculturist in the sixth on account of crop failure or in a subsequent year due to a glut in the market leading to a sudden fall in agricultural prices. Thus, in our opinion, the emphasis is on occupation and not on source of income. It is not necessary to go so far and say that without the income from agriculture the man should not be able to subsist or maintain himself and his family nor do we think it reasonable in the modern context, when even a flourishing agriculturist may be an industrialist in the sense that he may own a few shares in a manufacturing concern, to insist on this yardstick.

We are of opinion that the emphasis should be on occupation and not on source of livelihood. It would, in our opinion, be sufficient if the man secures the substantial portion of the means of his livelihood from agriculture, the income in a normal year from agriculture being such as without it the person concerned should be unable to maintain his ordinary standard of living. Thus engaging in agriculture should be essentially for his living in his accustomed manner. In our manner (sic) thus both the concept of the main source of income and the view that he must not be able to live without this income require modification and in our opinion it would be sufficient if the agriculture provides the substantial part of the means of livelihood, i.e. it is essential for maintaining his standard of life according to the manner in which he is normally living.

14. We will now consider the cases to which we have been referred in order to indicate the view that has been taken in earlier decisions, The case Jamna Prasad v. Raghunath Prasad, ILR 35 All 307, is the earliest case of this court to which we have been referred. This was a Division Bench case. This case was decided on the theory of 'main source of income.' It was stated:

'The burden of proof lay on him, and it was for him to show to the court that his main source of income was cultivation and not zamindari and that he was in the strict sense of the term an agriculturist. He produced two witnesses, and in our opinion their evidence is not sufficient to prove that his main source of income is agriculture and that he is an agriculturist within the strict sense of the term.'

Next we have been referred to a single Judge decision in the case of Shafian v. Hamidullah, AIR 1916 All 332. In this case the question whether the objector was an agriculturist or not was actually not raised as there was no dispute on that point. It was, however, stated:

'The evidence shows that the judgment-debtor is an agriculturist and that agriculture is his chief occupation and the chief means of livelihood and that his zamindari is infinitesimal in amount.'

Thus, it appears that the emphasis was laid on the 'chief occupation' and 'chief means of livelihood' as distinguished from sole occupation and absolutely essential means of livelihood.

15. Again in the case of Bachan Singh v. Bhika Singh : AIR1927All601 , Iqbal Ahmad J. held:

'An agriculturist whose house is protected from attachment and sale by Section 60(c) of the Civil P. C. must be an agriculturist belonging to the class of persons who are ordinarily designated as agriculturists, that is, whose principal source of livelihood is by cultivation.'

It is clear that the learned Judge was not referring to any castes or communities but to the class of persons 'ordinarily designated' as agriculturists which, he defined as persons whose principal source of livelihood was by cultivation. Next we have been referred to the case of Girwar Dayal v. Narain Singh : AIR1928All211 . The question whether the objector was an agriculturist was not raised in the memorandum of appeal. The learned Judge referred to the case of ILR 35 All 307 (supra) in the following terms:

'In any case, I feel great doubts as to the correctness of the decision relied upon, if it is to be construed to mean that, wherever a person is both a Cultivator of land and a zamindar, he can only be called an agriculturist if his main source of income is derived from agriculture. Where a person cultivates and has only one house it seems to me that if cultivation occupies a substantial portion of his time and activities he must be deemed to be an agriculturist .................'

Though the question was not raised, the learned Judge was inclined to adopt the standard of 'cultivation occupying a substantial portion of the objector's time and activities for adjudging whether he was an agriculturist.'

16. In the case of Dharam Singh v. Shah Mal Singh : AIR1931All20 , Niamatullah, J. stated:

'It may be that an enterprising zamindar who carries on a prosperous farm, on a large scale, leaving no lands which could be let to tenants and be a source of additional income to him, cannot be considered to be an agriculturist for the obvious reason that, though agriculture may be a source of income to him, it is not his source of livelihood. If he discontinues cultivation his income derived from the land let to tenant will be a sufficient source of livelihood for him'.

He, however, further stated :

'Each case must depend upon its own circumstances. The fact that he cultivates his own land and thereby maintains himself and his family will not necessarily make him any the less an agriculturist. On the other hand, if land which he cultivates, if let to tenants may be considered to be sufficient for his maintenance, he will not be considered to be an agriculturist only because he cultivates the whole of what he owns'.

With all respect to the learned Judge we do not find it possible to agree with his views. The learned Judge appears to have gone to the extreme in judging whether the income from agriculture was the main source of the objector's livelihood. Apparently he went so far as to suggest that the actual occupation of the objector must be disregarded and he must be held not to be an agriculturist if he could derive sufficient income for his maintenance by letting out the land to the tenants.

What may be sufficient for maintenance is another elusive standard. An ordinary poor villager may be quite happy if he is able to earn something like Rs. 50/- a month. Yet a substantial tenant may consider that amount a mere pittance. A large farmer may be able to earn an income of, say, Rs. 2000/-by letting out his land to betai tenants. He may be able to get Rs. 3,000/- if he gives a theka of his whole farm to one person. Yet he may not consider this income as sufficient and may engage in actual cultivation to earn an income of Rs. 5000/-a year. Judged by the standard laid down by Niamatullah J. this person should never be an agriculturist even if there was nothing let out merely because he could earn more than Rs. 50/- per month by letting out his land to tenants.

That, we must respectfully say, could never have been the intention of the legislature and is not the meaning that can reasonably be attached to the word 'agriculturist.' We must respectfully emphasise that in judging whether a man is an agriculturist or not the main focus must be on what he does with his time, energies and skill. If he does devote himself actively to cultivation, there must be some good reason for holding that he is not substantially an agriculturist.

17. The Division Bench case of Sampat v. Ram Prasad : AIR1932All499 is really not of much help in deciding the point before us. In the case of Habibul Razzaq v. Shiam Bahadur : AIR1935All292 , Bennet, J. held:

'I understand that an agriculturist refers to an occupation and that a man is an agriculturist who engages in the cultivation of land, that is, who ploughs land, sows the crop and attends to it'.

The case of : AIR1935All448 (supra) is the case referred to by the learned single Judge in his referring order and this is the principal case which we have to consider as against the view taken by Dhavan J. in Shiamlal's case : AIR1960All429 (supra). This is a Division Bench case of this Court of which Niamatullah J. was, a member and it held:-

'The term 'agriculturist' used in Clause (c) Section 60, Civil P, C is used in the sense of a person who is an agriculturist by profession that is, a person whose main source of livelihood is cultivation'.

In an earlier part of this judgment we have indicated our reasons why much emphasis should not be laid on the words 'main source of livelihood'. We are however of opinion that this yardstick of main source of livelihood does provide a rough and ready measure which may, however, not apply to all the cases. Normally a person is bound to spend more of his time and energy to an occupation which brings him a better return. Viewed in that light, the main source of livelihood would also normally be his main occupation. But there may be cases and circumstances in which this yardstick strictly applied may lead to obvious injustice.

18. The case of Dwarka Prasad v. Municipal Board, Meerut : AIR1958All561 mainly considered implements of husbandry. The last case is : AIR1960All429 (supra). This case is also referred to in the judgment of the learned single Judge and is the reason for making this reference. Dhavan J. held:

'I am of the view that the source of a person's income from agriculture or its ratio to other sources of income cannot be an essential criterion, for a person's income from his land may depend upon a number of factors which have no connection with his status as an agriculturist or his intention to remain an agriculturist. As indicated above a cultivator with a small holding will normally be compelled to look to additional sources of livelihood. On the other hand, a prosperous tenant may derive income from investment or rent and still remain an agriculturist. With profound respect I agree with the view taken by a Full Bench of the Madras High Court in Lakshmayya v. Official Receiver, AIR 1937 Mad 551 that there is no reason for depriving an agriculturist of the exemption under Section 60(c) because he may have invested his money in a business and may derive some income therefrom or do coolie work and add to his earning in bad times.'

As indicated by us earlier, the focus has to be on the engagement. If agriculture is the main and substantial engagement of the person concerned, he should be considered to be an agriculturist but the main source o income is really a rough and ready measure and indication of what is the main engagement. We are of opinion that the learned Judge should not have completely disregarded the sources of livelihood available to the person concerned,

19. We will now refer to a few cases of the other High Courts. The case of Nihal Singh v. Siri Ram, AIR 1939 Lah 388 held that the word 'agriculturist' means a person who personally engages himself in tilling the soil and whose livelihood depends upon the proceeds derived from the tilling of that soil. The learned Judges were then distinguishing between a person who was a mere receiver of rents and a person who is personally engaged in agriculture. They also emphasised that the profession was to be distinguished from hobby and also from a side business which provides only an. additional income.

To be an agriculturist the person must depend essentially on it for his livelihood. The tests afforded by the main source of income and the sole source of income were held not to be absolutely correct and it was stated that the true test was whether the person personally engages in tilling and whether this was essential to his maintenance. The only amendment that we suggest is that the occupation must be necessary not for the bare sustenance but maintenance of the standard of life of the person concerned.

20. The Full Bench case of AIR 1937 Mad 551 emphasises the engagement and stated:

'After a consideration of the authorities referred to, we have come to the conclusion that the test is not 'main source of income' neither is it 'sole source of income'. We think that having regard to the scheme of the section exempting from attachment as it does tools of artizans, and where the judgment-debtor is an agriculturist his implements of husbandry, and such cattle and seedgrain as may in the opinion of the Court be necessary to enable him to earn his livelihood, and his houses and other buildings occupied by him protection is intended to be given to those who are real tillers of the land and that an agriculturist in the section is a person who is really dependent for his living on tilling the soil and unable to maintain himself otherwise. Main, chief or principal sources of income are not, in our view, the proper tests. A man's main source of income may be from tilling the soil but his other source or sources of income may be more than sufficient to maintain him. The fact that a man's income from tilling the soil may be larger than his income from his ownership of land or other sources does not seem to us to make him an agriculturist within the meaning of the section. At the same time we see no reason for depriving an agriculturist of the exemption under the section because he may have invested money in a business or businesses as alleged in the present case and may derive some income therefrom or do coolie work and add to his earning in bad times. The test of sole source of income if applied would deprive him of the benefit of the section and we prefer the test which we have already laid down, viz., that he must be a tiller of the soil really dependent for his living on tilling the soil and unable to maintain himself otherwise'.

It is not necessary for us to state that Dhavan J. did not quote the whole passage and took one sentence from this passage as correctly indicating the view accepted by the Madras High Court. It appears to us that actually the qualification laid down was that a man must be really a tiller of the soil and must be really dependent on agriculture, i.e., unable to maintain himself otherwise. As we have said earlier, this is really a very stiff test and to some extent vague inasmuch as when a man is really unable to maintain himself otherwise is difficult to state for standards of life may vary so much,

The case of Subbarayudu v. Venkatasubbamma, AIR 1942 Mad 375 (1) does not really take the matters any further as the earlier decision mentioned above was followed. In Pattabhi Ramarao v. Venkata Subbama : AIR1952Mad807 , Rajagopalan, J. also adopted the criterion of dependence for living upon cultivation of the land and inability to maintain himself otherwise for judging, whether the objector was or was not an agriculturist.

21. The question for determination in Udharam Dalumal v. Rozi Shambe, AIR 1939 Sind 96 turned on the meaning of the words 'implements of husbandry' and it was stated that these words must be interpreted in a reasonable and generous spirit.

22. The last case, to which we have been referred is the Division Bench case of Nagpur High Court, Gowardhandas Surajmal v. Mohanlal Surajmal, AIR 1938 Nag 366. Their Lordships stated:-

'Our conclusions from the above cases and a consideration of the words used in Section 60 and generally may be stated as follows:-

1. Whether a person is an agriculturist or not is not a question turning on source of income but on nature of occupation.

2. A person may have many occupations.......

3. A person who owns land and lets it out reserving either money or produce is not an agriculturist but a landlord.

4. A person who cultivates the land as a labourer, though neither a landowner nor a tenant, is an agriculturist.

5. If a man cultivates the land with his own hands or by means of labourers whose activities he directs he is an agriculturist whether he operates on a large or a small scale. If he has no connection with the land except that he owns it and people work for him, he may or may not be an agriculturist according to circumstances'.

23. To sum up we are of opinion that:-

1. The question whether a person is an agriculturist or not is a question of fact to be determined on the circumstances of each case,

2. No inflexible rule or yardstick can be laid down and the question must be decided essentially on the circumstances of each case for we are of the opinion that there may be so many variations in the circumstances of each case that no inflexible rule could be laid down.

3. Ordinarily whether a person is an agriculturist or not is not a question turning on the sources of his income but on the nature of his occupation. If he engages personally in agriculture in order to earn his livelihood i.e., not as a hobby and devotes most of his time, energy and skill to agriculture then he would normally be entitled to be classed an agriculturist.

4. He must actively take part in the process of cultivation either by tilling or actively directing and supervising on the spot the process of agriculture. A person who merely owns the land and either lets it out to others or engages in agriculture through servants and labourers without taking any active part himself in the day-to-day work of the agriculture, would not be an agriculturist even though the proceeds of this land are the main source of his income and he is unable to maintain his normal standard of life without the income from this land.

5. Cultivation must be engaged in with the intention of securing a really substantial portion of the means of livelihood. It is not necessary that it should be the main source of his income but the income in a normal year must be such as without it the person concerned would be unable to maintain his standard of living. Thus, the engagement in agriculture should be essential for his living in his accustomed manner.

6. The person concerned must, in order to qualify as an agriculturist, devote the major part of his time, labour, attention and skill to cultivation of land. Otherwise agriculture would not be his occupation and he would not be said to be an agriculturist.

24. We accordingly hold that the Division Bench case of : AIR1935All448 (supra) was not quite correctly decided inasmuch as it laid too much emphasis on the main source of income and the views expressed by Dhavan J. in Shiamlal's case : AIR1960All429 (supra) do not take sufficient account of the fact that in order to be an agriculturist a man must devote the major part of his time and energies to agriculture and must normally draw such a substantial part of his income from agriculture as would be essential for him to maintain his normal standard of life.

25. We direct that this answer be returned to the learned single Judge. We would again like to emphasize that we have not considered the case of the house, i.e., whether it is occupied by the objector and whether it is necessary in law that ha should occupy it for purposes of agriculture.

26. The case will now be laid before the learned single Judge.

Mukerji, J.

27. I have had the advantage of reading the opinion of my brother Nigam, J. and I may say with respect, that I am in general agreement with what has been said by him and concurred with by Misra, J. I have, however, thought it desirable to say a few words of my own inasmuch as the question as to who can be an 'agriculturist' within the meaning of the word in Section 60 of the Code of Civil Procedure, has often caused difficulty.

28. The word 'agriculturist' has nowhere been defined in the Code of Civil Procedure. Section 60(1) of the Code provides that 'lands, houses or other buildings, goods, money, bank-notes, cheques, bills of exchange, hundis, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, moveable or immoveable belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for is own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf' may be sold or taken in execution.

Later this section provides for exceptions, namely, it lays down that certain types of property which could fall in the aforementioned list of attachable and saleable properties are not liable to such sale and attachment. This provision of Section 60, therefore, was in the nature of an exception to the general rule, the general rule being that all the properties of the judgment-debtor which were capable of being sold or taken in execution, to liquidate a judgment-debtor's liability, were liable to attachment and sale.

29. Sub-section (1) (c) of Section 60 of the Code is in these words :

'houses and other buildings with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment, belonging to an agriculturist and occupied by him.'

The question that the execution court in the case before us had to determine was whether the property that was put up for attachment and sale could be exempt under the aforequoted provision of Section 60 of the Code.

30. Webster's New International Dictionary of the English language, Vol. I, Second Edition, gives the meaning of the word 'agriculture', from which Word 'agriculturist' has evolved, as follows:

'The art or science of cultivating the ground, and raising and harvesting crops often including also feeding, breeding, and management of livestock; tillage; husbandry; farming; in a broader sense, the science and art of the production of plants and animals useful to man, including to a variable extent the preparation of these products for man's use and their disposal by marketing or otherwise. In this broad use it includes farming, horticulture, forestry, dairying, sugar making, etc.

'Agriculturist' has been given the following meaning:

'a. One versed in the theory of agriculture.

b. A farmer, esp, one trained in agriculture.'

31. The Shorter Oxford English Dictionary, Vol. I Second Edition, gives the meaning of 'agriculture' as :

'The science and art of cultivating the soil including the gathering in of the crops and the rearing of live stock; farming (in the widest sense) tillage'.

'Agriculturist' is said to be one engaged in agriculture.' 'Agriculturist' has also been given this meaning ;

'At first, A student of the science of agriculture; later, A farmer'.

32. A New English Dictionary on Historical Principles by James A.H. Murray, Vol. I (1888 Edition), gives the meaning 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).'

According to Murray's Dictionary the early meaning of the word 'agriculturist' was 'A student of the science of agriculture', but later it has come to mean 'A professed cultivator of the land, a farmer.'

33. Certain cases have laid down what the word 'agriculturist' means in Section 60 of the Code. Several cases have been cited in the opinion of Nigam, J. and I do not consider it necessary to refer to all the cases but I shall confine my attention to only three cases; those cases which have, according to Gurtu, J., necessitated his making a reference to the Full Bench.

34. In : AIR1935All448 , Niamatullah and Allsop, JJ. held that the test to be applied in deciding whether a person is an agriculturist, is whether his main source of income is derived from cultivation or not. For their view they relied on the decision of : AIR1932All499 . This decision pointed out that the 'term' 'agriculturist' used in Clause (c) of Section 60, Civil Procedure Code is used in the sense of a person who is an agriculturist by profession, that is, a person whose main source of livelihood is cultivation.' The learned Judges appear to have referred to the source of livelihood as one of the means for discovering what was the profession of a person.

In the setting in which the word 'agriculturist' appears, it is obvious to me, that in order to be an agriculturist a man must be by profession an agriculturist, that is, he must be engaged in any of the well recognised occupations connected with agriculture e. g. tilling of the soil and all that a tiller of the soil has to do, and this must occupy the man's main attention and energies. The return that the person gets from his labours spent on the soil in tilling it and in attempting to raise crops, etc. on it, is really not always the determining factor, though in a large number of cases this may provide a very' important and useful test for determining whether a particular individual was an agriculturist or not.

Therefore it is not correct to say that 'source of income' can never enter into the picture in determining whether a person was an agriculturist or not. It is not possible and I think it is not desirable either, to lay down any hard and fast rule, by which to test whether a particular individual fell within the category of an agriculturist, in order to be able to reap the benefit conferred on such persons by Section 60(1)(b) or (c) of the Code of Civil Procedure : Each case has to be determined on its own facts and circumstances, for the question, whether a person is an agriculturist or not, must be and is invariably a question of fact.

35. In the case of : AIR1960All429 , Mr. Justice Dhavan said that it was not necessary 'that a person, in order to qualify as an agriculturist within the meaning of Section 60(1)(c) must show that agriculture !s the main source of livelihood 'nor is he under any obligation to prove that he is a prosperous or successful agriculturist. Mr. Justice Dhavan further went on to say that in his view the source of a person's income from agriculture or its ratio to other sources of income could not be an essential criterion fur judging whether he was an agriculturist within the meaning of the Code or not. In my view--and I am expressing it with great respect--it was not necessary for Mr. Justice Dhavan to state the proposition as widely as he did, for what he had to consider in Shiamlal's case : AIR1960All429 was, whether the receipt of a pension of Rs. 75/9/- by the judgmentdebtor deprived him of the status of an agriculturist.

36. In Tirloki Prasad's case : AIR1935All448 what the learned Judges said was that the 'means test', if I may put it that way, was a proper test to apply in order, to find out whether a person was an agriculturist by profession or not. In my opinion, no exception could be taken to the above opinion expressed by the learned Judges, for they did not say that the 'means test' was the only test.

37. In AIR 1937 Mad 551 a Full Bench of the Madras High Court held:

'the protection is intended to he given to those who are real tillers of the land and that an 'agriculturist' in the section is a person who is really dependent for his living on tilling the soil and unable to maintain himself otherwise.'

The learned Judges however went on to say that 'main, chief or principal sources of income are not the proper tests', and yet further on they said:

'A man's main source of income may be from, tilling the soil but his other source or sources of income may be more than sufficient to maintain him. The fact that a man's income from tilling the soil may be larger than his income from his ownership of land or other sources does not make him an agriculturist within the meaning of the section. At the same time there is no reason for depriving an agriculturist of the exemption under the section because he may have invested money in a business or businesses and may derive some income thereform or do coolie work and add to his earnings in bad times.'

The real crux of the matter, if I may say so, lay, according to me, in the following sentence:

'The test of sole source of income if applied would deprive him of the benefit of the section and we prefer the test which we have already laid down viz., that he must be a tiller of the soil really dependent for his living on tilling the soil and unable to maintain himself otherwise'.

Speaking for myself, I have seen no real conflict between the view expressed in the Madras Full Bench decision in Lakshmayya's case, AIR 1937 Mad 551 and the Bench decision of this Court in Tirloki Prasad's case : AIR1935All448 .

38. The question, whether a person was an agriculturist or not, was a question of fact and had to be determined, like other questions of fact, on the evidence and circumstances of each case. It may be that in certain cases in order to bring out the real intention of the legislature, which was to protect a person who was really an agriculturist and not one who took to agriculture as a side business or as a hobby and in whose case, agriculture did not engage either his main attention or his entire energies, the return that he got from his agricultural activities may have to be taken into account, while in other cases this test may not be of value. Therefore, in my opinion, it was not possible to say that Shiamlal's case : AIR1960All429 decided by Mr. Justice Dhavan laid down the correct law.

39. Before parting with this matter I wish to draw attention to the circumstance to which attention was also drawn by Mr. Justice Gurtu in his referring order, namely, that a Bench decision was binding on a single Judge. Recently their Lordships of the Supreme Court have emphasised this in Mahadeolal Kanodia v. The Administrator General of West Bengal, Civil Appeal No. 303 of 1956 decided on 20th April, 1960, by the Supreme Court an appeal against a decision of the Calcutta High Court not reported so far, (since reported in AIR 1960 SC 986).

40. I would answer the question thus :

Tirloki Prasad's case : AIR1935All448 has been properly decided.

41. BY THE COURT : Let the opinions given in this case be laid before Hon. Gurtu, J.


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