GADADHAR KA KAJI GORE Vs. GANGARAM TATYA MHASKE

JUDGEMENT

(1.) This appeal arises from a suit to redeem an alleged mortgage by ostensible sale executed by the plaintiff's father in 1900. The plaintiff desired to rely on the provisions of Section 10A of the Dekkhan Agriculturists Relief Act, and in order to do so it was necessary to show that he was an agriculturist as defined in the first part of Section 2 of the Act either at the date of the suit or at the date of the transaction (see Sultan Rahim V/s. Ran-chhod Mulji s.c. 29 Bom. L.R. 249. It was admitted that at the date of the suit he was not an agriculturist but was earning his living in a tea shop. At the time of the transaction he was a child of two or three years of age maintained by his father who was an agriculturist.

(2.) The only issue for determination in this appeal is, whether under the circumstances the plaintiff can be described as having been an agriculturist at that time. The definition is " Agriculturist shall be taken to mean a person who himself or by his servants or by his tenants earns his livelihood wholly or principally by agriculture...or who ordinarily engages personally in agricultural labour." The trial Judge took the view that the plaintiff was not an agriculturist. The First Class Subordinate Judge in appeal decided that he was.

(3.) Now prima facie and having regard to the objects of the Dekkhan Agriculturists Relief Act, it might appear that the infant SOB of an agriculturist should be entitled to rely on the status of his father. But it has been held that the definition of "agriculturist" under the Act and the other provisions in favour of agriculturists in it are purely personal privileges: Dharamsey V/s. Balkrishna (1928) 31 Bom. L.R. 984, 986. Moreover, there is a decision of this Court in Dagdu v. Mirasaheb s.C. 14 Bom. L.R. 385, which appears directly to cover the point in issue. It was there held that the minor son of an agriculturist who is depending for his support on his father is not an agriculturist within the meaning of Section 2 of the Act, on the ground that dependence for livelihood upon another who is an agriculturist is not the same thing as earning livelihood for oneself by agriculture. The First Class Subordinate Judge attempted to distinguish this case on the ground that the parties claiming to be agriculturists there were Mahomedans. A Mahomedan while his father is alive may have no property of his own, whereas in a Hindu joint family any coparcener, even though he be a minor, has a share in the joint estate. This line or reasoning has been adopted by Mr., Rele on behalf of the respondent in this case. But if one refers to the judgment in Dagdu v. Mirasaheb it appears that it was not in any way based upon the fact that the parties in question belonged to a Mahomedan family, nor on the fact that they had no property of their own. In fact there is no reference in the judgment to the circumstance that the minors concerned were Mahomedans. The fact can only be inferred from the names given in the heading to the case.