ANANT DHARMA Vs. MANGALDAS RUPCHAND

JUDGEMENT

(1.) APPLICATION No. 1774 of 1945 was filed by the petitioner and his brother Pandurang Dharma Patil as members of an undivided Hindu family before the Chairman of the Debt Adjustment Board, Shahpur and Murbad for adjustment of their debts under the provisions of the Bombay Agricultural Debtors' Relief Act, 1939, Statutory issues under Section 35 (1) of the Act were raised by the Chairman and he held on 21-4-1947, that the applicants were not debtors within the meaning of Section 2 (6), Bombay Agricultural Debtors' Relief Act (Bom XXVIII [28] of 1939 ). The Chairman on that finding dismissed the application under Section 35, Clause (2) of the Act. An appeal was preferred against that decision by the petitioner to the District Court at Thana, and the learned District Judge has by his order dated 25-6-1949, confirmed the order of the dismissal of the application originally passed by the Chairman of the Board. The petitioner comes to this Court in revision.

(2.) NOW, during the pendency of the appeal in the District Court, Bombay Agricultural Debtors' Relief Act, 1939, was repealed and Bombay Agricultural Debtors' Relief Act, XXVIII [28] of 1947, was enacted. Section 56 of the new Act provided under the proviso to it as follows: " (a) all proceedings pending before any such Board at the date when this Act comes into force shall be continued and disposed of by the Court under this Act as if an application under Section 4 had been made to the Court in respect therefor;. . . " " (c) all appeals pending before any Court under the repealed Act against the decision, order or award of such Board shall be continued and disposed of as if the said appeals were filed under the provisions of this Act;" a Division Bench of this Court has taken the view that even if proceedings for adjustment of debts were initiated under the Bombay Agricultural Debtors' Relief Act of 1939 and they also terminated when the Act was in operation, and the Act of 1947 has come into operation during the pendency of the appeal, the provisions of the new Act of 1947 must apply. See Vishwanath Mahadev v. Krishnaji, 51 Bom. L. R. 744 : (A. I. R. (36) 1949 Bom. 390 ). The learned Judge appears to have thought that he was entitled to consider the status of the petitioner by reference to the definition given in Section 2 of Act XXVIII [28] of 1989. He held, agreeing with the view of the Chairman of the Board, that the total income of the family to which the petitioner belonged was Rs. 2,706, out of which the non-agricultural income was Rs. 1,062, and the agricultural income was Rs. 1,534. He held that as the income of the family from sources other than agriculture exceeded Rs. 500 and was also more than 20 per cent. of the total income, the application was not therefore maintainable at the instance of the applicant. There, in my view, the learned appellate Judge was wrong. He should have applied the provisions of Section 2 Clause (5), Bombay Agricultural Debtors' Belief Act, 1947, for the purpose of finding out whether the petitioner was a debtor within the meaning of that Act. If this matter were to be decided solely by reference to the question as to whether the correct provisions were applied, it would have been necessary to reverse the judgment of the learned appellate Judge and remand the case for a rehearing before him.

(3.) HOWEVER Mr. Joshi on behalf of the opponents contended that even on the finding recorded by the learned appellate Judge which confirmed the finding of the Chairman as regards the extent of the non-agricultural and agricultural income of the family of the petitioner, the petitioner did not satisfy the definition given in Section 2, Clause (5) (b) of the Act. Section 2, Clause (5) defines 'a debtor' as follows : (a) an individual-- (1) who is indebted ; (ii) who holds land used for agricultural purposes or has held such land at any time not more than 30 years before the 30th January 1940 which has been transferred whether under an instrument or not and which transfer is in the nature of a mortgage although not purporting to be so ; (iii) who has been cultivating land paraonally for the cultivating seasons in the two years immediately preceding the date of the coming into operation of this Act or the establishment of the Board concerned under the repeated Act; and (iv) whose annual income from sources other than agriculture and manual labour does not exceed 33 per cent. of his total annual income or does not exceed Rs. 500, whichever is greater ; (b) an undivided Hindu family-- (iii) which has been cultivating land personally for the cultivating seasons in the two years immediately preceding the date of the coming into operation of this Act or of the establishment of the Board concerned under the repealed Act ; and (iv) the annual income of which from sources other than agriculture and manual labour does not exceed 40 per cent. of its total annual income and the aggregate of such incomes of the members of which does not exceed Rs. 1,500. " the definition requires, among other things, that if the debtor is an undivided Hindu family, the total income of the undivided family from sources other than agriculture and manual labour should not exceed in the aggregate Rs. 1,500, and that such income should not exceed 40 per cent. of the total income of the family. Both the conditions regarding the maximum limit and the percentage of the non-agricultural income must be satisfied before a Hindu family can claim the status of a "debtor' within the meaning of the Act. Obviously the non-agricultural income of the family of the petitioner exceeds 40 per cent. of the total income of the family, and consequently one of the conditions namely, that the non-agricultural income should not exceed 40 per cent. of the total annual income is not satisfied. The applicant, therefore would not be entitled to claim the status of a "debtor" within the meaning of the Bombay Agricultural Debtors' Relief Act, 1947.