KEKHUSHRU EDULJI Vs. JINABHAI JIWANJI

JUDGEMENT

(1.) THIS is a reference made by the First Class Subordinate Judge of Surat under Order XLVI, Rule 1, of the Civil Procedure Code, and arises out of an appeal pending before him under Section 9 of the Bombay Agricultural Debtors' Relief Act. In the-statement of facts of the case drawn up by him he has said, that he entertains a doubt about the correct interpretation of the word "income" in the definition of the word "debtor" in Section 2, Sub-section (6)(a)(iv), of that Act, but he has expressed no opinion of his own as required by Order XLVI, Rule 1, of the Code of Civil Procedure. The appellant, claiming to be a debtor, made an application to the Debt Adjustment Board at Bulsar Under Section 17, Sub-section (1), of the Bombay Agricultural Debtors' Relief Act, for the adjustment of his debts. The Board held that he was not a debtor since his annual income from sources other than agriculture exceeded Rs. 300. "Debtor" is denned in Section 2(6)(a)(iv) as meaning "an individual (i) who is indebted, (ii) who holds land used for agricultural purposes, (iii) who has been cultivating such land personally from a date prior to April 1, 1937, and (iv) whose annual income from sources, other than agriculture and manual labour does not ordinarily exceed twenty per cent of his total annual income or does not exceed Rs. 300 whichever is greater. " In the opinion of the Debt Adjustment Board, the appellant does not fulfil the fourth condition for being a debtor. He has, at present, no land of his own, but has taken on lease twenty-four lands of his brother assessed at Rs. 68-4-0 on a rent of Rs. 300 a year. Out of those lands, he personally cultivates an area of 10 acres and 23 gunthas and has sub-let the rest, He admits that he, gets an income of Rs. 200 from the former and Rs. 460 or Rs. 570 from the latter. According to Explanation 1 to Section 2, Sub-section (6) of the Bombay Agricultural Debtors' Relief Act, "agriculture" does not include leasing of land. Hence income derived by the appellant from the lands leased out to tenants is to be treated as "income from sources other than agriculture and manual labour," and if it exceeds Rs. 300 a year, the appellant will not be deemed to be a debtor as defined in Section 2, sub-s. (6)(a)(iv).

(2.) IN appeal it was contended before the learned Subordinate Judge that out of Rs. 460 or Rs. 570 realised by him from the lands sub-let, he had to pay Rs. 300 to his own landlord, and thus his net income was less than Rs. 300 a year. The learned Judge could not make up his mind as to whether the word "income" used in Section 2, Sub-section (6)(a)(iv) meant gross income or net income, and so he has made this reference.

(3.) COSTS to be costs in the cause.