1. This is a judgment-debtor's appeal arising out of an application for amendment of the decree under Section 8, U. P. Debt Redemption Act. The appellant, Hari Har Dut Singh executed a mortgage of joint family properties on the basis of which mortgage a suit was filed by the creditor. Shyam Narain, minor son of the appellant, was also impleaded along with the appellant as a defendant to the suit. The trial Court decreed the suit only against the half share of the property, but the suit was decreed in full by this Court in appeal. The decision of this Court was affirmed by the Privy Council.
2. On 9th April 1943, the appellant made an application under Section 8, Debt Redemption Act, praying that as he was an agriculturist within the meaning of that Act, the decree might be amended according to the provisions of Sections 8 and 9 of the Act. The learned Civil Judge dismissed this application on the ground that the appellant was liable to pay only half the amount and that since he was not liable to pay the whole amount due under the decree, he was not entitled to make the application. Hari Har Dut Singh has come up in appeal to this Court against the order of the learned Civil Judge.
3. The contention of the appellant is that the learned Civil Judge was wrong in holding that he was not entitled to apply under Section 8 for the reasons given by him. We have perused the application made by the appellant in the lower Court and we find that he applied for the amendment of the whole of the decree. The learned Judge was wrong in thinking that the appellant had applied for amendment of half of the decree only. Even though the appellant may be ultimately liable to pay half of the amount due under the decree and the other half may be payable ultimately by his son, he was certainly jointly and severally liable for the whole of the amount along with his son. The language of Section 8, therefore, did not come in the way of his making the application. Learned counsel appearing for the respondents, however, urges that the appellant was not entitled to make the application inasmuch as ten times the local rate paid by the joint family, of which ho and his son were members, was Rs. 1,700, i. e., more than Rs. 1,000, and as such he was not an agriculturist as defined in Section 2, Sub-section (3) of the Act. It is true that ten times the local rate payable by the joint Hindu family of the appellant was Rs. 1,700. The question is whether the appellant, being one of the two members of the joint Hindu family is entitled to say that notionally he was liable to pay half the amount of ten times the local rate and as such he paid less than Rs. 1,000 and was, therefore, an agriculturist. The matter has to be decided with reference to the definition of 'agriculturist' in Section 2, Sub-section (8) of the Act, read with Section 3 (e) of the Act. Section 2, Sub-section (3) runs as follows:
' 'Agriculturist' means a proprietor of a mahal or of a share in or portion of a mahal or a tenant:
Provided that no such proprietor or tenant shall be deemed to be an agriculturist if --
(a) the aggregate of the rent, if any, and of ten times the local rate, if any, payable by him exceeds one thousand rupees, . . . . '
Section 3 (d) provides:
'A joint proprietor or a joint tenant shall be deemed to be the proprietor or tenant of so much of the joint property or joint tenancy, not being the property or tenancy, as the case may be of' joint Hindu family, as appertains to his share;'
Section 3 (e) lays down:
(e) where the aggregate of the rent and ten times the local rate, if any, payable by a joint Hindu family--
(i) does not exceed one thousand rupees, such family and every member of it shall be deemed to be an agriculturist;
(ii) exceeds one thousand rupees, a member of such family shall be deemed to be an agriculturist only if the aggregate of the rent and ten times the local rate payable in respect of his share and the shares of his male lineal ascendants and descendants in the joint family property does not exceed one thousand rupees . . . .'
As we have stated already this is a case in which ten times the local rate payable by the joint family consisting of the appellant and his minor son exceeds one thousand rupees. Clause (d) of Section 3 expressly excludes the case of a joint Hindu family. Clause (e) of Section 3 is the only clause applicable to a joint Hindu family. The present case does not fall under Sub-clause (1) of Clause (e) of Section 8. It falls under Sub-clause (2) of Clause (e) of Section 3. Under that clause the aggregate of the rent and ten times the local rate payable by the individual concerned and his male lineal ascendants and descendants has to be taken together. Since the only other member in the joint family is the appellant's descendant, the land revenue payable by both of them has to be taken into consideration in determining whether any one of them is an agriculturist. In this view of the matter, neither the appellant nor his son can be considered to be an agriculturist. It may be stated that there is no allegation nor proof that the appellant is separate from his son and they do not constitute a joint Hindu family. It mast, therefore, follow that the appellant was not an agriculturist within the meaning of the Debt Redemption Act and as such he could not apply under Section 8 of that Act. In this connection we may refer to a Bench decision of this Court of which one of us was a member--Khusal Kunwar v. Zauki Ram, 1946 A. L. J. 310 : (A. I. R. (34) 1947 ALL. 57).
4. Our attention has been drawn to a recent decision of their Lordships of the Privy Council in Bharat Raj v. Parshottam Das . In that case the joint family consisted of the father and his two sons and four sons of those two sons. The father, as the head of the family, had executed a mortgage. After his death, the mortgagee had brought a suit upon his mortgage against the surviving members of the joint family. During the pendency of the suit, an application under the Encumbered Estates Act was made by all the members of the family and the question arose whether their land could be treated as protected land within the meaning of Section 17, Debt Redemption Act, 1940. Apparently the local rate payable. The family of the debtors, in that case, possessed properties in the Districts of Banaras, Gorakhpur and Jhansi, They are given below with the local rates payable in respect of each property:
Rs. as. p.1. Lands in Danialpur and Bikapur in 46 5 1the district of Banaras.2. Lauds in Puranpatti in the dist- 9 10 0-rict of Banaras.3. Lands in Hemachapur in the dist- 26 14 9rict of Gorakhpur.4. Lands in Parsar In the dist- 78 11 2rict of Jhansi.
The debtors were superior proprietors of the land in the district of Jhansi of which the local rate was Rs. 78-11-2. It is not known whether they were superior proprietors to whom the provisions of Section 77, U. P. Land Revenue Act, 1901, applied. If they did apply, then the debtors were not 'proprietors of that land within the meaning of the definition of that term in Section 2 (13), U. P. Debt Redemption Act. 'Proprietor' has been defined in that section as follows:
'Section 2 (13). 'Proprietor' includes a superior proprietor and an inferior proprietor, but does not include a mortgagee or in Agra a superior proprietor to whom the provisions of Section 77, U. P. Land Revenue Act, 1901, apply.'
If they were not 'proprietors' of the land in the district of Jhansi, then the local rate of Rs. 78-11-2 could not be taken into account and thus the total local rate payable by the family was Rs. 81-13-10, ten times of which would be less than Rs. 1000 and, as such, the family and every member thereof would be deemed to be an agriculturist. The question, however, was not canvassed before their Lordships. Say their Lordships:
'Though, as will appear later, the respondents are superior proprietors of certain of the lands in question and, as such, are not directly concerned either personally or through tenants in the agricultural use of those lands, the appellant did not contend in the Courts in India, or suggest as a ground for his appeal to the Board, that the respondents were not agriculturists within the meaning of the Act of 1940 in respect of all or any of their lauds. This being so their Lordships do not propose to discuss the wide terms of the definition and will proceed on the assumption that the respondents were agriculturists for the purposes of the statute as regards all the said properties.'
5. The argument addressed to their Lordships seems to have been that for the purpose of Section 17 the family must be treated as one whole and individual members could not claim the benefit thereof. Their Lordships repelled this argument by referring to another case decided by them and reported in the same volume of the --Hardat Ram v. Paras Nath--and held that an individual member of a joint Hindu family was entitled to the benefit of Section 17.
6. Two further questions were urged before their Lordships :
'(1) What is the 'total amount of the local rates payable by or recoverable from the debtors, for the purposes of Section 17, in respect of the lands in question? and (2) Of that amount does the share or proportion to be allocated to each respondent exceed Rs. 25 per annum?'
On the first of these questions it was contended for the creditor that the rates payable on the lands in the Jhansi District should be included in the computation. Their Lordships held that for the purposes of Section 17, those rates could not be included as the debtors being superior proprietors were not liable to pay them, nor could the rates be recovered from them under the provisions of the U. P. Local Rates Act, 1914. On the second question it was urged before their Lordships on behalf of the creditor that in order to ascertain the relevant shares or proportions of the total liability for the purposes of Section 17 (1) (a), the division should be made per stirpes and that the divisor should, in consequence, be two, as there were two stirps of the two sons of the original mortgagor. Their Lordships repelled ibis contention.
7. It was next urged before their Lordships, that in considering the process of allocating the total of the local rates between the members of the joint family, the membership should be reckoned at sis, as it was when the application for relief was first made, or at seven, as it was after the birth of a son to one of the two sons during the pendency of the application. Their Lordships held that membership should be reckoned as at seven and not at six. Then their Lordships considered the basis of the division of the local rates whether it should be amongst the members per capita in which case the divisor would be seven, or whether the division should be amongst the members according to the shares they would take in the joint property on partition. Their Lordships did not decide the question finally as in their Lordships' opinion on either basis the local rate payable by every member of the family would not exceed Rs. 25 per annum for which protection is afforded in Section 17 (1) (a), Debt Redemption Act.
8. It will thus be seen that the decision of their Lordships of the Privy Council in the above case is in no way contrary to the view we have expressed on the interpretation of the word 'agriculturists.' Indeed, the question that falls to be decided by us in the present appeal was not at all considered by their Lordships. We may further note that in the other Privy Council case of Hardat Ram v Paras Nath , ten times the local rate payable by the members of the 'joint family of the debtors was less than Rs. 1000. In that case also, the question that arises for consideration in the present case did not fall to be considered. In our opinion, the application of the appellant under Section 8 of the Act was not maintainable as the appellant could not be considered to be an agriculturists.
9. The result, therefore, is that we dismiss this appeal with costs.