SHAMRAO RAMOHANDRA JADHAV Vs. MALKARJUN APPARAO MANTHALKAR

JUDGEMENT

(1.) The question in this appeal is one arising in execution proceedings. The plaintiff obtained a decree in suit No. 1549 of 1920 against one Ramchandra and two other partners in a partnership matter. There was an appeal to the High Court, but before the appeal, a darkhast was presented for attachment and sale of the property of Ramchandra defendant No. 1. It happened that Ramchandra died between the application for execution and the attachment of the property, and the property passed to his legal representative, his son Shamrao, who is the present appellant. Shamrao contended that being an agriculturist the property could not be attached and sold. That application was decided against him on January 16, 1926. On March 15, 1926, the High Court passed a preliminary decree, and there was a final decree on October 1, 1926. The execution proceedings were continued and proclamations were issued for sale of the properties, but separately as regards the right, title and interest of the deceased defendant No. 1 Ramchandra, and then Shamrao contended again that he was an agriculturist and the property attached could not be liable to be sold in execution. The learned First Glass Subordinate Judge of Sholapur held that this plea had been raised before by the judgment- debtor, as appears from Exhibit 16, and the order for attachment had been passed by his predecessor notwithstanding the plea, and that it was not necessary to go into that question again, as the question for consideration would be whether the deceased defendant Ramchandra was an agriculturist when the darkhast was given, and not what was the status of the present heirs of the said defendant, as the order for attachment was passed against property being of the right title and interest of the judgment-debtor Ramchandra only and not of the heir Shamrao himself. The learned Subordinate Judge also held that as there was no suggestion that the deceased debtor Ramchandra was an agriculturist, it was not necessary to take evidence about the existence or otherwise of the present heir's personal status as an agriculturist. The legal representative of the deceased Ramchandra has made this appeal, and the first question which arises is whether the decree having been passed personally against Ramchandra, the father, who was not an agriculturist, the property under attachment can be considered to be the property of an agriculturist under the Dekkhan Agriculturists Relief Act, and whether Shamrao can be allowed to raise this plea.

(2.) It has been contended by the learned advocate for the respondent that the decree being against the estate of Ramchandra, and the present appellant being his legal representative, the property to be attached and sold must be regarded as the property of Ramchandra and not of Shamrao, and therefore it is not open to him to raise the plea of the status of an agriculturist. This point has been twice considered comparatively recently in this Court, the latest case being Mathuradas V/s. Mahadu (1929) 32 Bom. L.R. 320, to which I was a party. Now that case lays down that-- Section 22, Clause (2), of the Dekkhan Agriculturists Belief Act does not apply to the representative in interest or the heirs of the deceased judgment-debtor. The words to the possession of which ho is entitled in that clause refer to a judgment-debtor who is living and entitled to the possession of the property at the date of the passing of the decree or order, and do not cover the case of a deceased judgment-debtor. The head-note, however, is not very clear. That case was founded on the case of Maruti V/s. Martand . Now according to the decision in that case:-- The immoveablo property belonging to an agriculturist is, by virtue of the provisions of Section 22 of the Dekkhan Agriculturists Relief Act, immune from attachment and sale in execution of a money decree against him. The immunity, however, ceases as soon as the property passes on his death into the hands of his legal representatives who are not themselves agriculturists.

(3.) The remarks of Shah J. are (p. 752): When the original defendant, who was undoubtedly an agriculturist, died, the proporty ceased to belong to him; and though for execution purposes it is treated as the estate of the deceased in the hands of his legal representative it must be taken to belong at the date of the attachment to the legal representative". This is the converse of the present case. In that case the judgment- debtor was an agriculturist and at his death the property passed to his heir who was a non agriculturist. The effect of the decision is to show that the immunity which attached to it while it was the property of the agriculturist does not extend to the property in the hands of his heirs. But the attachment of the above property of the judgment-debtor within the meaning of Section 50, Civil Procedure Code, for purposes of execution, would represent the estate of the deceased judgment debtor in the hands of his legal representative. Undoubtedly, on this ruling the converse would apply, viz., if the property belong to a non-agriculturist debtor who dies and passes into the hands of his heir who is an agriculturist, then if he is an agriculturist he would be entitled to the benefit of the Dekkhan Agriculturists Relief Act. This is quite clear from the judgment of Macleod C.J. in Maruti V/s. Martand, where he said (p. 751): It seems to me that the section clearly denotes that the only question to be decided when immoveable property is sought to be attached for a money decree, is whether at that time it belongs to an agriculturist or not, and we cannot read into the section any further words so as to make the section read that the property should still be protected from attachment if it once belonged to an agriculturist judgment-debtor, although it has passed by inheritance or otherwise into the hands of a person who is not an agriculturist.