SIR MADHAVAN NAIR:
This is an appeal by special leave from an order of the Board of Revenue, United Provinces of Agra and Oudh, dated 19 - 1 - 1943, which affirmed an order dated 30 - 9 - 1942, passed by an Assistant Collector, Gorakhpur District, under the United Provinces Encumbered Estates Act, 1934, in the course of execution proceedings for the liquidation of debts under the Act.
2. The question which the Board has to decide in this appeal may be stated as follows:-
3. When members of a joint Hindu family who are agriculturists against whom decrees have been passed, apply under S. 4, United Provinces Encumbered Estates Act, 1934 (hereinafter called the Act of 1934), for relief under the Act, is the family to be treated as a single unit, i.e. as one "agriculturist" only, for the purposes of Ss. 17 (1) (a) and 19, United Provinces Debt Redemption Act (hereinafter called the Act of 1940), or is each member to be treated individually as an "agriculturist" with respect to his share of the family lands, for the purposes of those sections ?
4. It will be convenient before considering the facts to notice the various relevant sections of the two Acts, in so far as they are material to this appeal.
5. The Act of 1934 was passed in order to protect the estates of indebted "landlords" from sale, a "landlord" being defined (S. 2 (g) of the Act) as a proprietor of a mahal or of a share or interest in a mahal.....provided that no person shall be deemed to be a landlord if his land is assessed to leas than a local rate of one rupee under S. 109 District Boards Act, 1922. The Act contains the following, amongst other, provisions.
"Section 2 (d) 'land' means a share of or interest in a mahal in the United Provinces, but does not include the interest of a mortgagee or thekadar or an assignment of land revenue unless it is transferable and perpetual;
(e) 'Protected Land' means land to which the provisions of (inter alia) Part II of the United Provinces Estates Act, 1920, apply and 'Unprotected Land' means land to which these provisions do not apply;"
Section 4 " .... Any landlord who is subject to or whose immovable property or any part thereof is encumbered with private debts, may make an application in writing to the Collector of the district in which his land or any portion of his land is situated stating the amount of such private debts and also of his public debts both decreed and undecreed and requesting that the provisions of the Act be applied to him; ......
Provided also that no application by a member of a joint Hindu family shall be entertained unless-
(a) all the members of such family join and the fact is stated in the application; or
(b) the applicant makes in the application an express declaration of his intention of separating from the joint family and states the names and addresses of the remaining members of the family and the share which the applicant would be entitled to get on partition of the family property- . . . . . . . .
Section 49 (1) "if the debts of a landlord are the debts due from his deceased ancestor which are legally recoverable only from certain property in the possession of the landlord, only such property and no other property belonging to the landlord shall be dealt with under the provisions of this Act; and all references to the property of the landlord in the various sections of this Act shall be deemed to be references only to such property and to no other."
The Act of 1940 was enacted to provide for further relief from indebtedness to agriculturists, an "agriculturist" being defined (S. 2 (3) of the Act) "as a proprietor of a mahal or of a share in or portion of a mahal or a tenant......." It contains the following amongst other provisions:
Section 2 (8) : "Land' means, "land in a mahal in the United Provinces . . . ."
(10) "Local rate" means the rate payable by, or recoverable from, a proprietor under the provisions of the United Provinces Local Rates Act, 1914.
S. 3 (d): 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 a joint Hindu family, as appertains to his share;
(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;
Section 16 deals with the execution of decrees against land and S. 17 (1) enacts as follows:-
17 (1) Notwithstanding anything contained in S. 16 or in any other law for the time being in forces
(a) The land of an agriculturist, the local rate payable by whom or recoverable from whom does not exceed twenty five rupees per annum, shall not be sold or otherwise transferred in execution of a decree to which this Act applies, nor shall a final decree for foreclosure be passed in respect of such land, and
(b) In the case of any other agriculturist-(i) only so much of his land may be sold or otherwise transferred in execution of a decree to which this Act applies; or (ii) a final decree for foreclosure may be passed in respect of only so much of his land as would after such sale or transfer or foreclosure leave with him and the local rate payable in respect of which would be at least rupees twenty - five per annum : *
* * * * *
Section 19 : The land of an agriculturist which by the provisions of cls. (a) and (b), of sub - s. (1), of S. 17, would be protected from sale in execution of a decree to which this Act applies shall in proceedings under the United Provinces Encumbered Estates Act, 1934, be deemed to be "protected land" as defined in that Act.
6. The facts of the case may be now briefly stated:-Appellant 7, along with the predecessor - in - title of the other appellants had obtained two money decrees, one, for Rs. 20,759 - 10 - 4 in 1933, and another, for Rs. 537, in 1934, against the first three respondents, sons of one Sarju Prasad deceased, hereinafter called the respondents, who are members of a joint Hindu family. The fourth respondent is the minor son of respondent 7, and has no separate interest in the lands in the suit.
7. Before the above decrees had been executed the Act of 1934 came into force. On 10 - 3 - 1936, the respondents applied for reliefs under S. 4 of the Act of 1934, stating that they were assessed to a local rate of Rs. 74 - 8 - 6, that they were "landlords" within the meaning of the Act, that they were members of a joint Hindu family, and that all had joined in the application. In Schedules a and B, attached to the application, details were given of the applicants' debts, and of their property. In Schedule B, the revenue due on the property was shown as Rs. 755 - 8 - 0. Their Lordships were informed that one - tenth of the amount would be the "local rate" payable by the family in respect of the property. The Collector to whom the application had been made forwarded it to the "Special Judge" as required by S. 6 of the Act. After making enquiries, the "Special Judge" passed revised decrees on 29 - 1 - 1938, cutting down the sums due to the appellants under the original decrees, to Rs. 17,314 - 6 - 0, and Rs. 533 - 12 - 4 together with interest and cost and entered them in the ranking list prepared under S. 16 of the Act, for rs. 561 - 0 - 0 and Rs. 17,816 - 0 - 0. These decrees were then sent to the Collector for execution as provided for under the Act, and were transferred by him to the Assistant Collector in charge of the sub - division.
8. Chapter v of the Act of 1934 deals with the execution of the revised decrees by the Col - lector and the liquidation of debts. Shortly stated, the liquidation is carried out by discharging the debt out of property other than proprietary rights in land and out of what is defined in the Act as "unprotected land." "Protected land" is not liable to be sold in the execution of a decree. Taking the view that the protection afforded to debtors was too restricted, the Government passed the Act of 1940. As pending the passage of this Act, all liquidation proceedings had been stayed by the Government, the respondents were able to apply for relief under this Act also.
9. On 1 - 6 - 1941, the Act of 1940 came into force. On 15 - 11 - 1941, the respondents made an application for the land of which they were proprietors to be declared "protected land "under the Act of 1934, by reason of S. 19 of the Act of 1940 and S. 17
(1) (a) of that Act. They claimed that, since the total local rate payable in respect of their proprietary rights in land amounted to Rs. 72 - 4 - 5 each of them is entitled to separate protection in respect of property assessed to a local rate not exceeding Rs. 25, and hence the whole land is "protected."
10. The creditors objected to the petition mainly on the ground that:
"the applicants have no right to have the property being declared as protected land separately, because they are the members of a joint Hindu family governed by the Mitakshara Law. The application has been filed on the basis of the E.E. Act and as members of a joint family and proceedings in respect of the property are being taken as the property being ancestral and a joint family property" (paragraph 3 of the creditors' objection.)
11. The application came before the Assistant Collector, who was the sub - divisional officer. On 30 - 8 - 1942, he passed the following order:
"There are three debtor applicants and the local rate payable in respect of their property is Rs. 72 - 4 5. This divided into three give a local rate of Rs. 24 - 1 - 6 per share. Therefore the whole property is protected."
12. On appeal to the Board of Revenue under S. 45 of the Act, Mr. W. C. Dible, junior member of the Board, passed the following order on 19 - 1 - 1943:
"Counsel argues that the applicant - debtors are members of a joint Hindu family. Thus, the family should be treated as one agriculturist only under S. 2 (3), U. P. Debt Redemption Act, 1940. But the Board have pointed out in 1942 R. D. 253,1 and a series of subsequent rulings, that the protection afforded by S. 17 is personal to the agriculturist. Since each of the applicant - debtors has an interest in the proprietary rights in land reported as theirs, each is an 'agriculturist' as defined in S. 2 (3), U. P. Debt Redemption Act, 1940, for each is a proprietor. Therefore each is entitled to separate protection as held by the S. D. O.".
13. In his order dismissing the appellants' application for leave to appeal to His Majesty in Council, Mr. Dible elaborated further the reasoning given in his order dismissing the appeal.
14. By force of Ss. 17 (1) (a) and 19 of the Act of 1940, protection from sale is given in proceeding under the Act of 1934, to the land of an "agriculturist" the local rate payable by whom or recoverable from whom does not exceed twenty - five rupees per annum; such land being deemed to be" protected land" as defined in the Act of 1934. The question in dispute between the parties to this appeal is whether for the purposes of the protection thus given, the members of a joint Hindu family should be treated as a single unit, for if so treated they will not be entitled to protection in this case as will be shown presently, they being entitled to "protection" only if they are treated separately as individual members of the family. The question is of considerable importance and arises for the first time for decision. The rulings of the Revenue Board mentioned in the order passed by Mr. Dible are not available for reference. Their Lordships have to decide the question solely by construing the two Acts.
15. The application for reliefs was made under S. 4 of the Act of 1934. That section states that no application by a member of a joint Hindu family should be entertained unless all the members of the family joined (except in the case of a member intending to separate for which special provision is made) and the fact that they have so joined was stated in the application. The law is well settled that :
"according to the true notion of an undivided family in Hindu law, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property, that he, that particular member has a certain definite share" (see 11 MIA 75,2 at p. 89).
This being the accepted law, Mr. Jopling, the learned counsel for the appellants, argued that there is no "agriculturist" in the present case of whom it can be said that the local rate payable by him or recoverable from him does not exceed Rs. 25, which is the essential condition required for the operation of S. 17 (1) (a) of the Act of 1940. The learned counsel contended that since no member of a joint Hindu family can claim that he is the owner of a definite share of the family property so long as it remains undivided, the joint family treated as a single unit is the "agriculturist" contemplated by the Act of 1940; and that even conceding for the sake of argument that an individual member of the joint family can be so treated, it cannot be said of him in this case that the local rate payable by him or recoverable from him does not exceed Rs. 25. In support of the latter part of the contention it was pointed out that the local rate payable under the United Provinces Local Rates Act is payable by the joint Hindu family and no "definite calculable share of the said rate is payable by any individual member of the family". Reference was also made to S. 49 (1) of the Act of 1934 to show that the landlord and debtor for the purposes of that section can only be the joint Hindu family. From these considerations-so ran the main argument-it would follow that the joint Hindu family which makes the application under S. 4 of the Act of 1934 should be treated as a single unit and that the joint family is the "agriculturist" for the purposes of Ss. 17 (1) (a) and 19 of the Act of 1940. The result, if this argument is accepted, is that the respondents will not be able to save their family property from being proceeded against in liquidation proceedings, as the local rate payable by the joint family exceeds Rs. 25 and S. 17 (1) (a) of the Act of 1940 becomes at once inapplicable.
16. The argument outlined above is persuasive, but their Lordships after considering it are unable to accept it, as they will show presently, for the chief reason, that one of the provisions of S. 3 of the Act of 1940 which has to be considered along with the Act of 1934 strongly supports the contention urged by the respondents, viz., that the relief given to them, i. e., the debtors, under the Acts is personal, and so they should be treated each separately and not as a joint Hindu family forming a single unit. After stating in clause (d) that "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 a joint Hindu family, as appertains to his share", the section states in clause (e) (i) that in the case of a joint Hindu family, if the total amount of rent and ten times the local rate, if any, payable by the family does not exceed one thousand rupees then such family and every member of it shall be deemed to be an "agriculturist". It was admitted in the course of the argument that the joint Hindu family of which the respondents are members would fall within cl. (e) (i) of S. 3 of the Act of 1940. If so, there cannot be any doubt that according to this provision every member of the joint Hindu family of the respondents, i.e., each one of the respondents, should be deemed to be an "agriculturist". Section 17 (1) (a) of the Act of 1940 says that :
"The land of an 'agriculturist' the local rate payable by whom or recoverable from whom does not exceed twenty - five rupees per annum shall not be sold or otherwise transferred in execution of a decree to which this Act applies",
and S. 19 of the Act says that such land to which the Act applies shall in proceedings under the Act of 1934 be deemed to be "protected land" as defined in that Act. It follows, therefore, that if each of the respondents can be treated as entitled to pay a local rate of Rs. 24 - 1 - 6 per annum, in this case, i.e., a sum not exceeding rupees twenty - five per annum, the local rate payable by the family being rupees seventy - two and odd, then each will be entitled to claim protection for his share of the family land in execution proceedings under the Act of 1934 by force of Ss. 17 (1) (a) and 19 of the Act of 1940.
17. Two objections, one of which has already been stated, were urged by Mr. Jopling against the above process of reasoning. The learned counsel urged (1) that the provision referred to in S. 3, clause (e) (i), relates only to the separate property of each individual member of the family, and not to his share of the joint family property, and (2) that, as it is the joint Hindu family that pays the local rate, no fractional share of it can be said to be payable by any individual member, he having, as already stated, no definite share in the undivided family property. Their Lordships do not think that there is substance in either of these contentions. The first objection is only a mere suggestion or a surmise, and is not warranted by any of the provisions of the Act of 1940; and no authority has been cited in support of it. The language of the provision is perfectly clear; it means what it says so distinctly, viz., that each member of the family to which that provision applies "shall be deemed to be an 'agriculturist'." The difficulty raised by the second objection is only apparent and not real. In their Lordships' view the expression "the local rate payable" means in the Act the local rate ultimately payable, for the ultimate responsibility for making the payment rests with the entire joint family. Thus understood, it may well be held for the purposes of this Act that each member of the joint family should be treated as entitled to pay his proportionate share of the local rate, which in this case does not exceed rupees twenty - five per annum.
18. As regards the objection that no individual member of the joint Hindu family can claim a definite share of the property till partition, their Lordships, after carefully considering the question, are definitely of opinion that this case should be judged solely with reference to Ss. 3 (e) (i) and 17 (1) (a) of the Act of 1940, to which attention has already been drawn, and not by applying to it any basic principle of the Mitakshara Law. Though it cannot be predicated that a member of an undivided Hindu family under the Mitakshara Law has a definite share in the family property till partition, it cannot be disputed that he has a joint coparcenary interest in the ancestral property along with the other coparceners. Thus, he is a proprietor when that ancestral property comprises "land" as defined in S. 2 (8) of the Act of 1940. In this connection it should be noticed that in the revenue papers relating to the villages in which the respondents 1 to 3 are proprietors, the three brothers are entered as "Co - sharers in equal shares" or "each of the three in equal shares". It is this interest conceived as an individual interest by notionally dividing the family property amongst its members, that S. 17 of the Act of 1940 seeks to protect from the hands of money - lenders who have obtained decrees against the family. The underlying intention of S. 17 of the Act of 1940 is to afford personal protection to individual members of the joint family to the extent provided for in that section. Their Lordships think that the clue to the right interpretation of Ss. 17 and 19 of the Act of 1940 is, as indicated already, to be found in the Act itself and not in any general principles of Hindu Law. The appellants objections, ably urged by their learned counsel, have therefore to be rejected.
19. In the result, their Lordships hold that the decision appealed against is right; they will therefore humbly advise His Majesty that this appeal should be dismissed with costs.