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Tirloki Prasad Vs. Kunj Behari Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1935All448; 157Ind.Cas.986
AppellantTirloki Prasad
RespondentKunj Behari Lal
Excerpt:
- - we are satisfied that the appellant was not an agriculturist at all in the sense in which the term is used in section 60, civil p......anywhere was an agriculturist. that is not the meaning which has been applied by the code to the term 'agriculturist' in clause (c), section 60, civil p.c. we may refer to the case of jamna prasad v. raghunath prasad (1913) 35 all. 307. there it was said in respect of a dispute upon this question that:the question arises a3 to what is his main source of income and whether or not he is an agriculturist within the strict sense of the term and occupies the house as such.4. the test applied in deciding whether a person was an agriculturist was whether his main source of income was derived from cultivation or not. a similar view was held in sampat v. ram prasad 1932 all. 499. we entirely agree that this is the proper test. the term 'agriculturist' used in clause (c), section 60, civil p.c.,.....
Judgment:

Allsop, J.

1. This is a second appeal from an order passed in first appeal by the learned District Judge of Meeruf in the course of insolvency proceedings. The appellant Tirloki Prasad and his brother ,Sri Ram, were adjudicated in solvents. The receiver seized a house No. 41 which is situated in the city of Meerut. The appellant Tirloki Prasad made an application that he was an agriculturist, that the house No. 41 was his residential house and that it was not subject to attachment under the provisions of Clause (c). Section 60, Civil P.C., and Sub-section (5), Section 28, Provincial Insolvency Act. The Court of first instance found that the appellant was not, in the true sense of the term, an agriculturist. and that Section 60, Civil P.C., Clause (c). did not apply to him. In appeal the learned District Judge found that the appellant was in a sense, an agriculturist; but he went on to say that, the house was subject to attachment, because it was not appurtenant to a holding and was not occupied by an agriculturist, as such.

2. In second appeal it has been contended that the statement of law which the learned District Judge made is not a correct statement and that a house if it is occupied by the agriculturist is not liable to attachment, even if it is not occupied by him as an agriculturist. It has also been contended that there is a finding of fact, which is binding on us, that the appellant is an agriculturist. We consider that the learned District Judge did not intend to find that the appellant was an agriculturist in the proper sense of the term as used in Clause (c), Section 60, Civil P.C. He has said:

No doubt the objectors (that is, the appellant and his brother) were not primarily cultivators, but of the fact that they were cultivators, i.e., agriculturists in respect of these plots, there is no room for doubt or dispute now.

3. By the expression 'of these plots' he is referring to the fact that the appellant and his brother were admittedly in possession of a piece of land just outside Meerut City which had an area of 2 bighas 13 biswas and which was a grove, part of which was from time to time cultivated. From the terms used by the learned District Judge we consider that he took it for granted that anybody who cultivated any land anywhere was an agriculturist. That is not the meaning which has been applied by the Code to the term 'agriculturist' in Clause (c), Section 60, Civil P.C. We may refer to the case of Jamna Prasad v. Raghunath Prasad (1913) 35 All. 307. There it was said in respect of a dispute upon this question that:

the question arises a3 to what is his main source of income and whether or not he is an agriculturist within the strict sense of the term and occupies the house as such.

4. The test applied in deciding whether a person was an agriculturist was whether his main source of income was derived from cultivation or not. A similar view was held in Sampat v. Ram Prasad 1932 All. 499. We entirely agree that this is the proper test. 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. We do not think that in deciding the present appeal it is necessary to express any opinion about the proposition of law laid down by the learned District Judge in respect of the question whether a house can be attached if it is occupied by an agriculturist in some capacity other than that of an agriculturist. We are satisfied that the appellant was not an agriculturist at all in the sense in which the term is used in Section 60, Civil P.C.

5. The appellant and his brother were the sons of a man who was a money lender and owned house property in Meerut City. He does not appear to have had any zamindari or any connexion whatsoever with agricultural land. After his duath his money lending business was carried on by his son other than the appellant, and that son had also a timber shop, and there were a number of houses which were let out to tenants and from which the brothers obtained income by way of rent. The appellant himself has made a statement in the course of these proceedings in which he has admitted that he obtained his share of the profits from the money-lending business and from the rent. He has admitted that, at the time when he and his brother were adjudicated insolvents, the rent from houses brought them in an income of something between Rs. 100 and Rs. 200 a month, and he has also admitted that there were profits from the money lending business and from the timber shop, although he cannot say how much. We should perhaps mention that he did not admit that he had any share in the timber shop; but at the same time he did admit that he obtained a satisfactory income at least from the rent of houses owned by him. The size of the grove, which has an area of just under three bighas, and the fact that upon this grove there were a large number of trees show that there could have been little cultivation and not much profit from it. It is clear to us that the appellant and his brother at the date of adjudication could, in no sense, be properly described as agriculturists, that is, persons who had, as their main source of livelihood, the profits from the cultivation of land. It has been suggested that we should consider the possession of the appellant not at the time when the order of adjudication was passed, but at the time when the receiver was proposing to sell the house in dispute. Under the provisions of the Provincial Insolvency Act, the property of an insolvent vests in the receiver at the date of adjudication, and if property is not to vest, it must be exempt from attachment under the provisions of Section 60, Civil P.C., at that date. Once it has vested, it becomes the property of the receiver, and he is entitled to deal with it. In our opinion, the appellant was not an agriculturist, and the house in dispute vested in the receiver at the date of adjudication. That being so, there was no force in the objection, and the effect of the order of the Courts below was correct. We dismiss the appeal with costs.


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