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Dharam Singh and anr. Vs. Shah Mal Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1931All20
AppellantDharam Singh and anr.
RespondentShah Mal Singh and anr.
Excerpt:
- - the judgment-debtors-appellants failed to prove the extent of their income from the zamindari and from agriculture, in order to make out that their main source of income is zamindari, to be entitled to. 3. the learned subordinate judge has laid stress on the question of onus and held that the appellants failed to establish that their means of livelihood is cultivation and not zamindari. while the question of burden of proof cannot be ignored, an attempt should be made in a case like this to arrive at a definite finding on the evidence......cultivate. it observes thatthe burden of proof was on the judgment-debtors to prove that their main source of income is agriculture. all zamindars, however small zamindari may be, cannot be said to be agriculturists simply because they cultivate land. section 60, proviso (c), is meant to protect the house of agriculturists, whose main source of income is agriculture. the judgment-debtors-appellants failed to prove the extent of their income from the zamindari and from agriculture, in order to make out that their main source of income is zamindari, to be entitled to. the protection of section 60, clause (c).2. i agree with the view taken by the appellate court as to who should be considered an agriculturist within the meaning of section 60, clause (c). it has been held by this court.....
Judgment:

Niamatullah, J.

1. This is an appeal by two judgment-debtors, Dharam Singh and Munshi, who are brothers, from an order of the learned Subordinate Judge, Muzaffarnagar. confirming that of a Munsif of that district who disallowed an objection preferred by them, to the attachment of their residential house in execution of a simple money decree obtained against them by the respondents decree-holders, on the ground that they (the judgment-debtors) are agriculturists whose residential house is exempt under Section 60, Civil P.C., from attachment and sale in execution of decree. The lower appellate Court has mentioned, with reference to certain evidence, that the appellants are proprietors of 27 bighas pakka land, which they themselves cultivate. It observes that

the burden of proof was on the judgment-debtors to prove that their main source of income is agriculture. All zamindars, however small zamindari may be, cannot be said to be agriculturists simply because they cultivate land. Section 60, proviso (c), is meant to protect the house of agriculturists, whose main source of income is agriculture. The judgment-debtors-appellants failed to prove the extent of their income from the zamindari and from agriculture, in order to make out that their main source of income is zamindari, to be entitled to. the protection of Section 60, Clause (c).

2. I agree with the view taken by the appellate Court as to who should be considered an agriculturist within the meaning of Section 60, Clause (c). It has been held by this Court in numerous cases that an agriculturist for the purposes of that section is one whose main source of livelihood is agriculture: see for instance Shafian v. Hamidullah Khan [1916] 33 I.C. 727. I am not however prepared to accept the view expressed somewhat widely by the lower appellate Court, viz., that zamindars, however small their zemindari may be, cannot be considered to be agriculturists under any circumstances. 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 tenants will be a sufficient source of livelihood for him. On the other hand, a petty proprietor of a few bighas cannot manage to make the two ends meet unless he supplements his slender means by taking to agriculture and cultivating his own land, and possibly other land let to him. The main source of his income in such a case is not what can be reasonably attributed to his ownership of land, but what he produces through his personal exertion. No hard and fast rule can, in my opinion, 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. Bach case must depend upon its own circumstances. The fact that he culivates 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.

3. The learned Subordinate Judge has laid stress on the question of onus and held that the appellants failed to establish that their means of livelihood is cultivation and not zamindari. While the question of burden of proof cannot be ignored, an attempt should be made in a case like this to arrive at a definite finding on the evidence. The fact, that the appellants own 27 pakka bighas of land, is, in my opinion, an indication of the extent to which they are maintained by sources other than agriculture pure and simple. This amount of land, if let to tenants will fetch sufficient though somewhat reduced income for the maintenance of the appellants. On the whole I think that they cannot be considered to be agriculturists within the meaning of Section 60, Clause (c).

4. I must notice that Courts below have fallen in a curious inconsistency. The learned Munsif exempted one of the enclosures attached by the decree-holders on the ground that it had been

proved to have been used for keeping cattle and implements of husbandry and for agricultural purposes.

5. As regards the rest of the house, he held that the appellants not being agriculturists, the house is not exempt from attachment. The appellants are either agriculturists or they are not. If they are, the entire house and other buildings belonging to and occupied by them are exempt. If they are not, no part of their house or any other building owned by them, though occupied by them and used for agricultural purposes, can be exempted from attachment. The exemption of part of the premises belonging to the appellants was not objected to by the decree-holders before the lower appellate Court and is not objected to before me. I need, therefore, take no further notice of that question. The result is that this appeal is dismissed with costs. Having regard to the nature of the question involved in this appeal, I grant permission to the appellants for a Letters Patent appeal which has been verbally asked for by the learned advocate for the appellants.


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