CHUNILAL JAMNADAS Vs. BHANUMATI

JUDGEMENT

(1.) The appellant decree-holder complains that the respondents judgment-debtors have wrongly been held to be agriculturists within the meaning of the Dekkhan Agriculturists Relief Act and have wrongly had the execution of the decree against them transferred for execution to the Collector in accordance with the notification of Government under Section 320 of the old Civil Procedure Code (Act XlV of 1882) now Section 68 of the new Civil Procedure Code (Act V of 1908).

(2.) The lower appellate Court held that the respondents were agriculturists because they were holders of certain service Inam land and were grantees of the soil and not merely grantees of a share of the revenue upon a true construction of their Sanad, and so were not excepted from the definition of agriculturist by Explanation (b) to Section 2 of the Dekkhan Agriculturists Relief Act. The lower appellate Court admitted that prima facie the Sanad was a grant not of the soil but of a share of the revenue, but held on a consideration of certain circumstances previous and subsequent to the Sanad that the true construction of the grant was that it was one of the soil.

(3.) Now it appears to us that what we must mainly look to is the terms of the Sanad and that the previous and subsequent circumstances are not in this case of any real assistance to us in construing its terms. The main terms of the Sanad are as follows:-- Whereas certain emoluments are now entered in the Government accounts as the service Watan of the Majmudari--of Taluka Viramgam-- in the Ahmedabad Collectorate; and whereas the holders of the said Watan have agreed to the annual deduction there from as below stated in consideration of Government foregoing the service which they have a right to demand, it is hereby declared that:"-- "1st:--The Watan as now confirmed, and below specified, shall be continued subject to certain conditions hereditarily without demand of service, and without any further deduction there from on account of service and without objection or question on the part of Government as to the rights of any holders thereof, so long as there shall remain in existence any legal heir to the Watan whether lineal, collateral or adopted within the limits of the Watandar s family and whether descended in the male or female line." "2nd:--When all the recorded sharers-in the Watan agree to request it, the general privilege of adopting at any time any person out of the Watandar s family who can be legally adopted, and of transferring the Watan or any recognized share thereof, by sale, mortage &c. as private property, will be granted by the Government to the Watan on the payment from that time forward, in perpetuity of an annual Nazerana of one anna in each Rupee of the total emoluments of the Watan as now confirmed and from the date of the imposition of this Nazerana the whole Watan or the recognized shares thereof will be converted into private property heritable and transferable in all legal modes.