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Shiamlal Vs. Smt. Sahodra Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1501 of 1955
Judge
Reported inAIR1960All429
ActsCode of Civil Procedure (CPC) , 1908 - Sections 60(1)
AppellantShiamlal
RespondentSmt. Sahodra Devi and ors.
Advocates:Ambika Prasad, Adv.
DispositionAppeal allowed
Excerpt:
.....or receipt of pension - not sufficient for categorization - does not deprive a person of the status of an agriculturist. - - such an interpretation is not warranted by the word 'agriculturist' and would result in great injustice to poor agriculturists whose holdings are to small so as to yield an income insufficient to support themselves and their dependants and who are, therefore, compelled to render manual service to more prosperous persons in their own village in order to earn enough to keep body and soul together. residence in the village plus cultivation is strong proof that a person has not abandoned his calling of agriculturist, whatever his other sources of income. 6. similarly, at the other end of the scale, a prosperous agriculturist cannot be deprived of his status as..........yielding an income large than his return from land.7. 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, masulipatam air 1937 mad 551 that there is no.....
Judgment:

S.S. Dhavan, J.

1. This is a judgment-debtor's second appeal against an order of the lower appellate court rejecting his objection against the sale of his house in execution of a decree passed against him. It is not necessary to state the facts which have led up to this appeal as Mr. Amibika Prasad, learned counsel for the appellant, argued only one question of law before me. He contended that the courts below had wrongly deprived the appellant of the status of an agriculturist within the meaning of Section 60(c) C. P. C. merely because he was in receipt of a pension from Government. The appellant is a retired Sub-Inspector getting a pension of Rs. 75/9/-. This fact was taken into account by the courts below in holding that, as the appellants' main income was from this pension, he could not be considered as an agriculturist under Section 60(c). The appellant had contended that, as he was living in the village and cultivating his holdings, he must be regarded as an agriculturist and given protection of Section 60(c), which prohibits the attachment or sale of a house and other buildings belonging to an agriculturist and occupied by him.

2. In my view the view taken by the courts below is erroneous. It is obvious that a receipt of pension does not create in law a profession or calling of the pension-holder. In fact there is no such thing as a profession of a pension-holder. Pension is granted for past services and may be an indication of a man's calling in the past, but it cannot determine his profession after retirement. It is a common knowledge that retired soldiers return to their native villages and settle down as cultivators of their ancestral holdings.

Retired judges are known to have commenced practice at the Bar. The receipt of a pension by a retired soldier or a policeman would not affect his status as an agriculturist any more than the receipt of a pension by a retired judge would affect his status as a lawyer if he reverts to the Bar. A pension-holder can draw his pension and also pursue any profession he likes unless he is prohibited by the terms and conditions of his pension from taking any particular calling.

3. Section 60(1)(c), C. P. C. does not define an agriculturist. It merely says : 'houses and buildings (with materials and the sites thereon and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist and occupied by him' shall not be liable to attachment or sale in execution of a decree. In some decisions the view has been taken that the test of an agriculturist is the proportion or ratio of his income from agriculture to his income from other sources. In 'Bachan Singh v. Bhika Singh' : AIR1927All601 Iqbal Ahmad, J. observed that an agriculturist within the meaning of Section 60(c) is one who is 'ordinarily designated as agriculturists', but he went on to say:

'....... that is, whose principal source of livelihood is by cultivation'. In 'Girwar Dayal v. Narain Singh' : AIR1928All211 , Ashworth, J. observed: 'If cultivation occupies a substantial portion of his (the judgment-debtor's) time and activities he must be deemed to be an agriculturist. .....'

4. With great respect, the word 'agriculturist', in my opinion, provides the key to its own meaning. It means, according to Murrary's dictionary, 'a professed cultivator of the land, a farmer'. According to the Chambers' 20th Century Dictionary, an agriculturist is a person skilled in agriculture, that is, in the art or practice of cultivating the land. It is also defined as a farmer. According to its plain meaning, therefore, the word 'agriculturist' means a person engaged in agriculture, that is, in the practice of cultivating the land.

5. It is not necessary that a person, in order to qualify as an agriculturist within the meaning of Section 60(c) must show that agriculture is the main source of livelihood. He is under no obligation to prove that he is a prosperous or successful agriculturist. Such an interpretation is not warranted by the word 'agriculturist' and would result in great injustice to poor agriculturists whose holdings are to small so as to yield an income insufficient to support themselves and their dependants and who are, therefore, compelled to render manual service to more prosperous persons in their own village in order to earn enough to keep body and soul together.

The income of such persons, including those of their dependants from the land may be a fraction of the income derived from manual services imposed upon them by necessity but this fact alone would not deprive him of his ancestral status of cultivator. It would be monstrous to hold that such a person must not resort to any other means (forced on him by necessity) to provide himself with a living income, and must starve himself and his dependants in order to qualify for the protection available to an agriculturist under Section 60(c). As long as he remains in the village and cultivates his land, he has the status of an agriculturist and is entitled to the protection of Section 60(c), C. P. C. whatever the size of his side-income. Residence in the village plus cultivation is strong proof that a person has not abandoned his calling of agriculturist, whatever his other sources of income.

6. Similarly, at the other end of the scale, a prosperous agriculturist cannot be deprived of his status as an agriculturist because he has made it good job of his calling and saved enough money to invest, say, in government Bonds or Post Office Certificates (which is considered to be a patriotic investment) yielding an income large than his return from land.

7. 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, Masulipatam 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.

8. It is also immaterial whether he cultivates the land with his own hands or engages coolies. The hiring of manual labour may be a sign of a prosperity but is no proof of abandonment of the calling of agriculturist. A cultivator does not cease to be a cultivator if he engages a few coolies any more than a judge ceases to be a judge if he dictates his judgments to a steno-typist instead of writing them with his own hand. As long as there is personal supervision, the hiring of manual labour would not deprive a person of the status of agriculturist.

9. In my opinion the question whether a person is engaged in agriculture is one of fact. I respectfully agree with the view of Niamat Ullah, J. in Dharam Singh v. Shah Mal Singh : AIR1931All20 that:

'No hard and fast rule can be laid down for cases where a person cultivates his own land and the aggregate income derived from his labour and ownership of land is spent on the maintenance of himself and his family. Each case must depend upon its own circumstances.'

There is no reason to limit the scope of the protection given by Section 60(c) only to those whose main source of income is derived from the cultivation of the land. The intention of the legislature obviously was to preserve and promote the efficient cultivation of the land that is to say, to encourage agriculture which is the main industry of this country. If this be the underlying policy of Section 60(c) I see no reason to deprive a person of the benefit and protection of this provision if he fulfils the test of a person engaged in agriculture but has also other sources, of income such as a pension or profit from investment. (See in this connection the commentary on the word 'agriculture' in the Dictionary of Words and Phrases by Roland Burrous, Vol. 1, page 141).

10. In the present case, the courts below were entitled to decide the question of fact whether the appellant was or was not an agriculturist. But in doing so, they considered matters which are irrelevant. The lower appellate court was influenced by the fact that the appellant receives a pension from Government which yields an income larger than the land which he admittedly cultivates. I have already indicated that the receipt of a pension, however large, does not deprive a person of the status of an agriculturist within the meaning of Section 60(c) as long as he continues to live in the village and cultivates his holding. The appellant went into the witness box and stated on oath that he was cultivating his land. On this question he was not even cross-examined. The respondent) merely relied upon the fact that he was in receipt of a pension.

11. For the reasons indicated above, the appeal is allowed. I set aside the decree of the courts below and hold that the appellant is entitled to the protection of Section 60(c) and direct that his house shall sot be sold in execution of this decree. In the circumstance the parties will bear their own costs.


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