SADASHIV MAHADEO DESHMUKH Vs. JAMNADAS LAKHANCHAND

JUDGEMENT

(1.) THIS second appeal raises a question of construction of Section 2, Sub -section (5), Explanation II, of the Bombay Agricultural Debtors Belief Act, 1947. The matter arises in this way. The appellants before us, who were the original plaintiff's, filed a suit under the Dekkhan Agriculturists Relief Act in the Court of the Joint Civil Judge at Panvel, being Suit No. 478 of 1950, for a, declaration that certain transactions of sale by plaintiff No. 1's deceased father were in fact mortgages. One of the points raised by way of defence in the said suit was that the plaintiff was a debtor within the meaning of the Bombay Agricultural Debtors Relief Act, 1947; and it is common ground that if he was such a debtor, then his remedy was under the Bombay Agricultural Debtors Relief Act and his suit under the Dekkhan Agriculturists Relief Act was not maintainable. The learned trial Judge held that he was not a debtor within the meaning: of the Bombay Agricultural Debtors Relief Act, but he held on the merits that the transactions were in fact mortgages although in form they were sales and, therefore, decreed the plaintiffs' claim. On appeal, the District Judge, Kolaba, reversed the decision of the learned trial Judge and held that the plaintiff was a debtor within the meaning of that word in the Bombay Agricultural Debtors Belief Act and, therefore, the suit was not maintainable. The learned District Judge also took the view on the merits that the transactions were in fact mortgages, so that there are concurrent findings of fact on the question of merits. The only point is whether the decision of the learned District Judge on appeal, that the plaintiff was. a debtor under the Bombay Agricultural Debtors Relief Act, is correct. Now, turning to the relevant definition, Section 2, Sub -section (5), enacts: - 'debtor' means -(a) an individual -... (iii) who 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...; 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 Stopping here for a moment, there are two requirements in order to constitute an individual a debtor. The first is that he must have been cultivating land personally for the cultivating seasons in the two years preceding the date of the coming into operation of this Act. The relevant years in this case are the year]s 1945 -46 and 1946 -47, and it is proved on the record -and there is no dispute -that during this period 5 acres 29 gunthas of land were cultivated by the plaintiff personally and 94 acres of land had been leased out to tenants. Therefore, the requirement of personal cultivation in the two preceding years was satisfied. 'We then come to the -second requirement and that is that the income from sources other than agriculture and manual labour should not exceed 33 per cent, of his total annual income or Rs. 500, whichever is greater. Now, in determining what his income from agriculture is, one has to take into account Explanation I to this sub -section which, in so far as it is relevant, is in these words: - For the purposes of this clause 'agriculture'...does not include leasing of land of cutting only of wood; Therefore, income derived from leasing of lands is not income from agriculture for the purpose of determining whether it exceeds 33 per cent, of the total annual income or Rs. 500 whichever is greater. Now, the position, again on facts proved on the record, is that in the year 1945 -46 the income of the plaintiff from personal cultivation was Rs. 500 while the income from lands leased to tenants was Ks. 3,176, whilst in 1946 -47 the income from personal cultivation was Rs. 500 and the income from lands leased was Rs. 2,576. If the matter stood there, then since income from lands let out to tenants is not agricultural income, the plaintiff would not have satisfied the second requirement of the definition as the income from sources other than agriculture would have exceeded 33 per cent, of his total income or Rs. 500. But, in this case, the plaintiffs were the widow and minor son of the deceased Mahadeo Deshmukh and there is a provision in Explanation II to Section 2, Sub -section (5), with regard to the heirs of a deceased person and the nature of the income in their hands. Mahadeo had died in 1944, The relevant part of Explanation II is in these words: - In the case of - (a) any person who dies leaving as his heir, a widow or a minor or a person who is subject to physical or mental disability, or (b) an undivided Hindu family, in which there are no adult male co -parceners capable of cultivating the land personally, the income derived by such heir or family by the lease of land for an agricultural purpose shall, notwithstanding anything contained in Explanation I, be deemed to be income from agriculture. It is urged on behalf of the respondents to this appeal that since the plaintiffs were heirs of the deceased Mahadeo, the income derived by them by lease of land became income derived from agriculture by reason of Explanation II and notwithstanding Explanation I; and this is what the learned District Judge held on an interpretation of Explanation II.

(2.) NOW , Mr. Eege for the appellants before me has urged two contentious with regard to the correct interpretation of Explanation II. His first contention is that the Explanation in so far as Clause (a) is concerned embraces only such land as was cultivated personally by the deceased and has been leased by the heir, owing to the inability of such heir to cultivate the land personally. His second contention is that, in any event, the words ''by the lease of land' should be interpreted as referring to a lease given by the heir and does not include within its scope leases given by the deceased himself.

(3.) TURNING next to the second part of the submission of Mr. Eege, Mr. Rege says that the words 'by the lease' do not mean the same thing as 'from the lease' and the word 'by', says Mr. Eege, imports the concept that the lease itself was by the heir who was under a disability. Here again, in the first instance, if 'by the lease' is a correct expression at all, it does not appear to me that it can mean anything different from 'under the lease', and one cannot import into the preposition 'by' the concept that the lease itself must have been by the heir under disability; for here again, when one comes to test this part of the submission of Mr. Rege by reference to the case of an undivided family in which there are no adult male coparceners capable of cultivating the land personally, it is difficult to see who the lease can be by. Indeed, in the case of the heir himself who is under a disability, physical or mental, he has no capacity to lease. It appears to me, therefore, that there is no justification for importing into the words of the Explanation, which prima facie convey the meaning that the income was derived by the heir by virtue of a lease of the land, anything more or less than the Explanation itself says. There is no doubt that the income of Rs. 3,176 in the year 1945 -46 and Rs. 2,567 in the year 1946 -47 was income derived by virtue of the leases in favour of tenants, and since this income was derived by the heir who was under a disability by virtue of Explanation II and notwithstanding Explanation I, it is agricultural income.