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T. Thiravia Nadar Vs. S. Thiravia Nadar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberAppeal Against Appellate Order No. 71 of 1972
Judge
Reported inAIR1975Mad192; (1975)1MLJ116
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11, 60 and 60(1); Tamil Nadu Agriculturists Relief Act, 1983 - Sections 3
AppellantT. Thiravia Nadar
RespondentS. Thiravia Nadar
Appellant AdvocateA.V. Ilango, Adv. for ;R. Shanmugham, Adv. and ;K.M. Natarajan, Adv.
Respondent AdvocateT.R. Mani, Adv.
Cases ReferredAppasaheb v. Balachandran
Excerpt:
.....person depends exclusively upon tilling - judgment debtor was tilling on land of father - judgment debtor was agriculturist and entitled to relief under section 60 (1) (c). - - poruppo or other due of a like nature. the wada in question was clearly occupied by the appellants for the purpose of tilline the land of the home farm and for storing the produce thereof, the implements of husbandary and tethering of cattle employed in cultivating the land. but i fail to see how the finding that tine judgment-debtor is not an agriculturist within the meaning of madras act iv of 1938, could necessarily be tantamount to a finding that he is not an agriculturist within the meaning of section 60(1)(c). civil p. they failed to consider the oral evidence, because they erroneously held that the..........or horticultural land in the state of tamil nadu or holds an interest in such land under a land holder under the tamil nadu estates land act. 1908, as tenant, ryot or under tenure holder or holds an interest in such land recognised in the malabar tenancy act, 1&29 (tamil nadu act xiv of 1930) or holds a lease of such land from any person specified in sub-clause (a), (b) or(c) or in a sub-lessee of such land. the proviso to this section takes out of the definition of 'agriculturist' a person who has been assessed to income-tax or profession tax on a half yearly income of more than one thousand and two hundred rupees or has been assessed to property or house tax or land holder of estate in respect of which any sum exceeding five hundred rupees is payable as peshkush or any sum.....
Judgment:

Maharajan, J.

1. This civil miscellaneous second appeal arises under the following circumstances. The respondent obtained a decree against the apaellant in O S. No. 118 of 1970 on the file of the Ambasamudram District Munsif's Court on foot of a promissory note. In execution the decree-holder sought to brine the judgment-debtor's house to sale. The judgment-debtor filed E. A. 952 of 1971 Praying for the dismissal of the execution petition. The main basis upon which he asked for dismissal is that under proviso (c) to Section 60(1), Civil P. C. the house belongs to an agriculturist and is occupied by him and, therefore, it is not liable to attachment or sale. The Judgment-debtor's contention was that he was an agriculturist within the meaning of Section 60(1)(c). Civil P. C. The decree-holder filed a counter in which he contended that, by virtue of the findings in O. S. No. 118 of 1970 and A. S. 35 of 1971, the judgment-debtor was barred by res judicata from contending that he is entitled as an agriculturist to the benefits of Section 60(1)(c). Civil P. C. He further contended that the judgment-debtor was not entitled to claim the relief, inasmuch as he remained ex parte in E. P. 404 of 1971, and he had allowed attachment before judgment to be confirmed. The judgment debtor examined himself as P. W. 1 and one Daveedu Nadar as P. W. 2. He also filed a number of documents in support of his plea that he was an agriculturist. The decree-holder led no oral evidence in refutation of the judgment-debtor's plea. He merely produced a certified copy of the judgment in A. S. 35 of 1971, had it marked as Ex. B-1 and contended that the judgment-debtor was not entitled to the benefits of Section 60(1)(c), Civil P. C. The Court of first instance dismissed the execution application of the judg-ment-debtor after holding that his plea was barred by res judicata. An appeal filed by the judgment-debtor to the Subordinate Judge. Tirunelveli, was also dismissed. It is against the dismissal of the appeal the present civil miscellaneous second appeal has been filed.

2. I may at the very outset say that both the Courts below have been labouring under a misconception as to the meaning of the word 'agriculturist' employed in Section 60(1)(c). Civil P. C. Evidently, they seem to have taken for granted that the concept of an agriculturist as contemplated by Section 60(1)(c), Civil P. C. is the same as. and in no way different from, the concept of agriculturist under Madras Act IV of 1938. Under Section 3 of Madras Act IV of 1938, an agriculturist means a person, who has a saleable interest in any agricultural or horticultural land in the State of Tamil Nadu or holds an interest in such land under a land holder under the Tamil Nadu Estates Land Act. 1908, as tenant, ryot or under tenure holder or holds an interest in such land recognised in the Malabar Tenancy Act, 1&29 (Tamil Nadu Act XIV of 1930) or holds a lease of such land from any person specified in Sub-clause (a), (b) or(c) or in a sub-lessee of such land. The proviso to this section takes out of the definition of 'agriculturist' a person who has been assessed to income-tax or profession tax on a half yearly income of more than one thousand and two hundred rupees or has been assessed to property or house tax or land holder of estate in respect of which any sum exceeding five hundred rupees is payable as peshkush or any sum exceeding one hundred rupees is payable by way of Quit rent, jodi. kat-tubadi. poruppo or other due of a like nature. On the other hand. Section 60. Civil P. C. which was framed in 1908. had a different notion of an agriculturist altogether when it used that word in Section 60(1)(c). The connotation of the word has been authoritatively expounded by the Supreme Court in Appasaheb v. Balachandran, : [1961]2SCR163 -Their Lordships said-

'The word 'agriculturist' in this clause must carry the same meaning as the word 'agricuturist' in clause (b) and the house must be occupied by him as such. The object of the exemption in clause (c) apparently is that an agriculturist should not be left without a roof over his head. In other words, the legislature intended by clauses (b) and (c) to prevent an agriculturist becoming destitute and homeless- It was, however, agreed on behalf of the appellants that there are no restrictive words in clause (c). So long as it was a house belonging to an agriculturist and occupied by him. it was exempted from attachment no matter what other income than agricultural was earned by him. The Wada in question was clearly occupied by the appellants for the purpose of tilline the land of the home farm and for storing the produce thereof, the implements of husbandary and tethering of cattle employed in cultivating the land. It seems to us on the evidence of the appellant's own witness, that they do not themselves till the land of the home farm which is done by a large number of labourers employed by them. Tuljaramrao did not himself cultivate the land. He merely supervised the work of cultivation by the labourers.............It seems to us that even if it is notnecessary that a person must till the land with his own hands to come within themeaning of the word 'agriculturist' he must at least show that he was really dependent for his living on tilling the soil and was unable to maintain himself otherwise. In the present case it is quite obvious that even if the appellants can be described as agriculturists in the widest sense of that term, they are not agriculturist who are really dependent for their maintenance on tilling the soft and that they are unable to maintain themselves otherwise,'

In considering the case of the judgment-debtor that he is an agriculturist within the meaning of Section 60(1)(c). Civil P. C. and, therefore, his house is not liable to attachment, the Courts below went completely off the track and allowed themselves to be influenced 'by the findings in the suit and in the appeal. In the suit, the appellant wanted a scaling down of the debt under Madras Act IV of 1938 and he claimed the scaling down on the basis that he was an agriculturist within the meaning of that Act. This was denied by the plaintiff. The trial Court gave the finding that he did not hold any saleable interest in any agricultural land and, therefore, was not an agriculturist within the meaning of Madras Act IV of 1938. The Appellate Court confirmed this finding. But I fail to see how the finding that tine judgment-debtor is not an agriculturist within the meaning of Madras Act IV of 1938, could necessarily be tantamount to a finding that he is not an agriculturist within the meaning of Section 60(1)(c). Civil P. C. As I have already pointed out, an agriculturist under Section 60. Civil P. C. need not have a saleable interest in land; nor need he even be a lessee of the land. It is sufficient if he is merely tiller of the soil and depends exclusively for his living on tilling the soil and he is unable to maintain himself otherwise. The Courts below erred inholding that the claim of the judgment-debtor for the benefits of Section 60. Civil P. C. is barred by res judicata. They ought to have considered the oral evidence of P. Ws. 1 and 2 to the effect that the judgment-debtor has been tilling the agricultural land of his own father. They failed to consider the oral evidence, because they erroneously held that the judgment-debtor was precluded by res judi-cata from raising the plea. As I have already observed, the finding of the Courts in the suit that the judgment-debtor was not an agriculturist cannot bar by way of res judicata, the plea of the judgment-debtor that he is an agriculturist under Section 60(1)(c), Civil P. C. As the misconception in this behalf has vitiated the judgments of the Courts below I set aside those judgments and remand thematter to the first Court for fresh disposal after giving both the parties an opportunity to lead fresh evidence, oral and documentary. The pleadings are nebulous. However, it is open to the parties to clarify the pleadings by filing additional pleadings. After giving both parties an opportunity to clarify their pleadingsand adduce additional evidence on the appellants' status as an agriculturist within the meaning of Section 60(1)(c). C. P. C.. the Court will dispose of the matter on the merits in the light of the observations made in this judgment. Costs will abide the result. Leave is refused.


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