RAI SURENDRA NATH Vs. SM NARAINI DEVI

JUDGEMENT

(1.) This is a second appeal from an order passed by Mr. Oak, District Judge of Azamgarh, upholding in appeal the order, dated 24-7-1943, passed by the late Lal Bhagwati Dayal Singh, Civil Judge, dismissing the objections of the judgment-debtors in an execution proceeding. The undisputed facts are as follows :

(2.) On 25-3-1934, one Rai Achhuta Nand executed a pronote in favour of the decree-holder respondent, Sm. Naraini Devi. In 1937, she brought a suit on the foot of the pronote for the, recovery of the amount due under it. On 5-4-1937, a compromise decree was passed according to which the amount sued for together with pendente lite and future interest and costs were decreed. The said amount was payable in thirteen six-monthly instalments. It was stipulated that a period of grace of two months would be allowed for payment of every instalment, but in the event of default of any three instalments the entire decretal amount was to become due at once. Rai Achhuta Nand died on 1-10-1940, after the decree. On 22-10-1940, the respondent made an application for the execution of the decree alleging that as the first three instalments were in arrears the whole amount had become due. She prayed for the realisation of Rs. 4,292-4-0, which sum included interest and costs, by the attachment and sale of certain zamindar-property in two villages. There was the usual prayer for the substitution of the names of the heirs of Rai Achhuta Nand. The three appellants, who are minors, are his sons. Their names were duly substituted for the deceased judgment-debtor. On 7-4-1942, the present appellants filed an objection. A number of grounds were taken; for the purposes of this appeal it is relevant to mention only one of them, namely, that the objectors were agriculturists within the meaning of the term as defined in Sub-section (3) of Section 2, U. P. Debt Redemption Act, 1940 (U. P. Act XIII [13] of 1940), that the debt on the basis of-which the decree was obtained was a 'loan' as defined in Sub-section (9) of Section 2 of the said Act, that the judgment-debtors were entitled to the amendment of the decree and the reduction of interest in accordance with Sections 8, 9 and 10 of the Act and that the property sought to be sold was protected by Section 17 of the Act and, as such, it could not be sold in the execution of the decree. It is important to note here that the judgment-debtors did not contest the allegation that no instalments had been paid. In fact they alleged certain circumstances in their objection for being excused for the default. Learned Civil Judge repelled these objections. He held that as Rai Acchuta Nand, the original debtor, was paying more than Rs. 1,000 as land revenue, then he was not an agriculturist and that the present objectors are not entitled to the benefit of the U. P. Debt Redemption Act, 1940. He seems to have been of the opinion that an advance is not a 'loan' as defined in the above-mentioned Act if it is made to a non-agriculturist but at the time of the execution of the decree is recoverable from an agriculturist. The judgment-debtors went up in appeal before the learned District Judge, but the point does not seem to have been pressed before him.

(3.) When the case first came up before the Full Bench, the question arose whether taking the three appellants individually they held or not the status of an agriculturist. Time was given to the parties to produce documentary evidence on this point. The position, as disclosed on the date of the final hearing of this appeal before the Full Bench, was that Rai Achuta Nand was not an agriculturist at the time: of the execution of the pronote as he paid more than Rs. 1000 per annum as land revenue for himself and his sons. But at the time of the execution application the appellants taken individually were agriculturists, as the aggregate of rent and ten times the local rate payable by each of them in respect of his share does not exceed Rs. 1000/ Now Clause (e) (ii) of Section 3, U. P. Debt Redemption Act, 1940, provides : "For the purposes of this Act--(e) where the aggregate of the rent and ten times the local rate, if any, payable by a joint Hindu family -- (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." There is a proviso to this clause and it runs as follows : "Provided that no joint Hindu family or any member of it shall be deemed to be an agriculturist if such family or member is assessed to income-tax, or in the case of a member of such family if the aggregate of the rent and ten times the local rate payable in respect of such member's share and the shares of his male lineal ascendants and descendants in the joint family property and in respect of his self-acquired property, if any, exceeds one thousand rupees." There is no proof that any of these appellants pays income-tax or that the aggregate of the rent and ten times the local rate payable in respect of the share of any of these appellants in the joint family property and in respect of his self-acquired property exceeds one thousand rupees. In Hardat Ram v. Paras Nath, A.I.R. (35) 1948 P. C. 85 : (73 I. A. 19), it was held by their Lordships of the Judicial Committee that the underlying intention of Section 17, Debt Redemption Act, is to afford personal protection to individual members of the joint family to the extent provided for in that section. When members of a joint Hindu family, who are agriculturists, apply for relief under the Act, the, family is not to be treated as a single unit, i. e., as one agriculturist only for the purposes of Sections 17 and 19, U. P. Debt Redemption Act, but each member is to be treated individually as an agriculturist with respect to his share in the family land for the purposes of those sections. In Bharat Raj v. Parshottam Das, A. I. R. (35) 1948 P. C. 204 : (75 I. A. 177), their Lordships of the Judicial Committee observed that though a member of an undivided Hindu family under the Mitakshara law has no definite share in the family property till partition, it cannot be disputed that he has a joint co-parcenary interest in the ancestral, property along with other coparceners. Where, therefore, a certain land is held by the members of such a joint Hindu family, it is not the joint family as a unit but each undivided member of the family as a separate individual that has to be considered to be an agriculturist for the purpose of qualifying for protection under the terms of Section 17 of the Act. In view of these decisions of the Privy Council, the law laid down in Khushal Kunwar v. Zauki Ram, 1946 A. L. J. 310: (A.I.R. (34) 1947 ALL. 57), in which it was held that the joint family as a whole should be taken as a unit is no longer a good law. As the aggregate of the rent and ten times the local rate payable by each appellant separately in the event of a partition does not exceed Rs. 1000, each of them has the status of an agriculturist by virtue of Clause (e) (ii) of Section 3 of the Act.