1. This appeal and the connected execution second appeal No. 121 of 1929 arise out of the same execution proceedings and in this way:
The decree-holders, who are the appellants before us, namely Mahabir Prasad, Mt. Mahdei and Narain Das obtained a preliminary decree for sale on 31st March 1925 against one Badri Prasad and his two sons, and Mahesh Prasad and his son. Badri Prasad and Mahesh Prasad were uncle and nephew. The preliminary decree was passed on foot of a mortgage executed by Badri Prasad and Mahesh Prasad on 5th August 1920. The judgment-debtors belong to the district of Banda, to which the Bundelkhand Land Alienation Act applies. By Act 2 of 1903 (Local), Section 4, the Local Government was entitled to determine by notification in the Gazette what bodies of persons in any district were to be deemed to be agricultural tribes for the purpose of the Act. The act was meant to restrict the power of alienation of the inhabitants of Bundelkhand. Section 16 of that Act says:
No land belonging to a member of an agricultural tribe shall be sold in execution of any decree or order of any civil or revenue Court, made after the commencement of this Act.
2. Again Section 10 of the same Act runs:
In any mortgage of land made after the commencement of this Act any condition which is intended to operate by way of conditional sale shall be null and void.
3. After the passing of this Act, the Government of the United Provinces issued a notification dated 22nd June 1903, by which, among others, the Chaubeys of Godh Kalan (among whom the judgment-debtors are) were declared to be agriculturists. This notification was however modified under Section 23, Bundelkhand Land Alienation Act, by issue of a fresh notification dated 2nd October 1903. By this notification except for the purpose of Section 10, Bundelkhand Land Alienation Act, among other persons, the Chaubeys of Godha Kalan were declared to be non-agriculturists. It was therefore during the period when the Chaubeys of Godha were deemed to be non-agriculturists that the mortgage was made and the preliminary decree for sale was passed. Before the final decree for sale could be made, by notification dated 29th October 1925, the Local Government professed to modify the notification of 2nd October 1903 by declaring that Mahesh Prasad and Badri Prasad were to be taken out of the notification of 2nd October 1903. This means that by the notification of 29th October 1925 Mahesh Prasad and Badri Prasad were again declared to be agriculturists.
4. On foot of this notification of 29th October 1925, when the decree was sought to be executed, Mahesh Prasad and Badri Prasad preferred an objection to the executing Court (Subordinate Judge of Banda) claiming that their properties should not be sold. The learned Subordinate Judge dismissed the objection. On appeal by Badri Prasad and Mahesh Prasad, the learned District Judge held that by virtue of the notification of 29th October 1925 the shares of Badri Prasad and Mahesh Prasad could not be sold, but the shares of their sons could be sold.
5.The decree-holders accordingly have filed an appeal claiming the right to sell the shares of Badri Prasad and Mahesh Prasad, and the sons of Badri Prasad and Mahesh Prasad have filed the connected execution second appeal No. 121 of 1929, claiming that their shares should also be exempted from sale.
6. A good deal of controversy in the present appeal related to how far the Local Government was competent to issue the notification of 29th October 1925. Having heard the learned counsel for both the sides we are satisfied that it is not open to us to say that the notification of 29th October 1925, by which in effect Badri Prasad and Mahesh Prasad were declared for the second time to be agriculturists, was ultra vires. Briefly, our view is as follows:
7. Section 23, Clause (b), Bundelkhand Land Alienation Act, gives the Local Government authority to exclude any person or class of persons from the operation of a notification made under Section 4 of the Act. By the General Clauses Act, passed a year later (1904), certain powers were given to the Local Government, and the provisions of Sections 4 to 28, General Clauses Act, were given retrospective effect. By Section 21, General Clauses Act, where a power to issue a notification is conferred, that power is to be deemed to comprehend a power to amend, vary or rescind any notification whatsoever.
8. The effect of this Section 21, General Clauses Act, was that the notification of 2nd October 1903 could be so amended as to declare Badri Prasad and Mahesh Prasad to be agriculturists. In this view of ours the judgment-debtors Badri Prasad and Mahesh Prasad could validly claim that their share in the mortgaged property should not be sold. The preliminary decree did not give to the decree-holders a right to sell the property till the final decree was made. The final decree was made after the notification. Therefore it comes within the purview of Section 16, Bundelkhand Land Alienation Act. The result is therefore that appeal No. 45 of 1929 must fail and we dismiss it with costs,
9. As regards appeal No. 121 of 1929, a preliminary objection is taken by Mr. Pathak that the appellants accepted the decision of the learned Subordinate Judge and never filed an appeal to the District Judge and therefore they are not competent to file a second appeal to the High Court. This may be a pure technicality. But we may take it that when Badri Prasad and Mahesh Prasad filed an appeal to the District Judge, they filed the appeal not only for themselves but also as guardians ad litem of their minor sons for whom they had been appointed such guardians. We therefore disallow the preliminary objection.
10. Coming to the merits of the case, we think that the pure technicality on which the father's judgment-debtors have relied may be met with pure technicality on the part of the decree-holders.
11. This is a very hard case so far as the decree-holders are concerned. When they advanced money, the borrowers Badri Prasad and Mahesh Prasad were certainly non-agriculturists. When they got their preliminary decree, the debtors were again non-agriculturists. Between the passing of the preliminary and the final decree comes in the notification by which, practically speaking, the decree-holders were made to lose their money which they had advanced in good faith. If that is so there is no reason why the law should be stretched in favour of the judgment-debtors and against the decree-holders. It has nowhere been contended that Badri Prasad and Mahesh Prasad were the sole owners of the property. They, as members of the joint Hindu family had only 5/12ths share in the family property, the three sons of theirs owning the rest. The notification does not mention the minor sons. It has been argued that if the fathers were agriculturists the sons also must be agriculturists. But this character of an agriculturist is the creation of the notification and the character does not exist outside the notification. We have therefore no reason to suppose that the minor sons are also agriculturists within the meaning of the Bundelkhand Land Alienation Act. They are Chaubeys, and except Badri Prasad and Mahesh Prasad all the Chaubeys of Godha are non-agriculturists.
12. In the result we see no merits in this appeal and we dismiss it also with costs.
13. We find that the appellants in appeal No. 121 of 1929 made a delay in furnishing security for costs of the appeal. On account of this delay, certain orders were passed by two learned Judges of this Court and our attention has been drawn to that order. In view of the fact that the appeal fails, no severe notice need be taken of the delay in furnishing the security for costs.