LAXMAN HARI GHARPURE Vs. VISHNU VISHWANATH PARANJPE

JUDGEMENT

(1.) The only question in this appeal is whether appellants 2, 3 and 4 can be said to be agriculturists the meaning of Section 2, Dekkhan Agriculturists Belief Act, 1879. These appellants at the time the darkhast was filed were all minors. They lived with their uncle Laxman, appellant 1, on whose behalf the appeal has not been pressed, and according to the evidence they formed with him a joint family owning fairly considerable agricultural lands; and it has been found by the Court below that the only income of the joint family was derived from these lands although Laxman had separate income in the shape of pension. The learned Subordinate Judge held against appellants 2 to 4 on the plea of agriculturist status on the ground that minors cannot be held to be agriculturists because they themselves do not earn their livelihood, and he relied upon a decision of this Court in Gadadhar V/s. Gangaram ( 31) 18 A.I.R. 1931 Bom. 453 The material part of Section 2, Dekkhan Agriculturists Belief Act, is as follows: Agriculturist shall be taken to mean a person who by himself or by his servants or by his tenants earns his livelihood wholly or principally by agriculture carried on within the limits of a district or part of a district to which this Act may for the time being extend, or who ordinarily engages personally in agricultural labour within those limits.

(2.) It is not suggested before us for the respondent that a minor is necessarily incapable of engaging personally in agricultural labour, and the argument that the present appellants 2 to 4 are not agriculturists is, therefore, not based solely upon their minority as such. The argument is that although the joint family lands are, at least for the most part, cultivated by tenants who pay rent making up the joint family income, yet as appellants 2 to 4 are living with their uncle who is the manager of the joint family, these appellants cannot be said to earn their livelihood by or through their tenants. It is true that in the case referred to by the learned Subordinate Judge some support for this conclusion may be gleaned from certain observations made by Broom-field J. But the decision in that case was this, that because an infant is dependant upon a person who is an agriculturist, the infant on that account does not acquire the status of the person who supports him, and, in my opinion, no exception can be taken to the correctness of this proposition. It is also supported by an earlier decision, Dagdu Anandram V/s. Mirasaheb 14 Bom. L.R. 385 In Dagdu Anandram V/s. Mirasaheb 14 Bom. L.R. 385 it does not appear whether the status of the father of the minor was derived from income of land rather than from personal labour upon land, and in neither of these two cases can it be said that the position of a minor entitled to property consisting of agricultural land and deriving income from that agricultural land was really considered. In Mahadev V/s. Bamchandra ( 38) 25 A.I.R. 1938 Bom. 96 Kania J. held that where a minor inherited only agricultural lands and the principal or only source of his income was from such lands, he was an agriculturist within the meaning of Section 2, Dekkhan Agriculturists Belief Act, and this decision is directly in point on the facts of the present case. It may perhaps be said that some difficulty is created by the use in Section 2 of the word "earns," suggesting that the person claiming the status under that section must take some active part in creating or at least in collecting the income by which he is maintained. If a narrow view is taken of the word "earns," then clearly in many cases an elaborate enquiry would have to be made in Order to ascertain what proportion of what may be called the agricultural income derived is attributable to the direct exertions of the person claiming agricultural status. It is difficult to think that this could have been the intention of the Act, and to my mind it is equally difficult to hold that the Legislature intended to exclude minors from the benefits of agriculturist status when by the explanation to the first part of Section 2 of the Act the Legislature has gone so far as to retain the privileges of that status to persons who by age or bodily infirmity are prevented from earning their livelihood by agriculture or from engaging personally in agricultural labour. In the present instance where the major part of the income is derived from tenants, I see no difficulty in holding that these tenants, engaged no doubt by the manager of the joint family, are yet the tenants of all the members of the joint family owning the lands; and that the fact that the rent they pay is applied to the livelihood of the present appellants brings the present appellants within the meaning of the first part of Section 2 as persons who by their tenants earn their livelihood by that income. I think, therefore, that the learned Judge below was wrong, and that on the admitted facts of the case the appellants must be held to be agriculturists. As one of them is now major, this decision in his instance is academic. In my opinion, therefore, the appeal must be allowed with costs and the darkhast returned to the lower Court for such further Order's as may be necessary in the light of the finding that appellants 2 to 4 are agriculturists. Divatia J.

(3.) I agree. The decision in Gadadhar V/s. Gangaram ( 31) 18 A.I.R. 1931 Bom. 453 on which the lower Court has relied, does not apply to the facts of the present case. That decision was based upon the finding that the minor son depended for his support on his father, and it followed the previous decision in Dagdu Anandram V/s. Mirasaheb 14 Bom. L.R. 385 where also there was a similar finding. But, in the present case, we have the finding on evidence, which has not been disputed before us, that the minors belong to a joint Hindu family whose agricultural income was greater than its non-agricultural income. That being so, it is difficult to see why the minors would not come under the definition of the term "agriculturist" in Section 2, Dekkhan Agriculturists Belief Act. In the case of a joint Hindu family, a minor acquires interest by birth, and therefore along with the adult members of the coparcenary he is also a co-owner of the property. If that property consists of agricultural lands, the income of such property is also the income of all the coparceners including the minor. He is, therefore, a person who by himself or by his servants or by his tenants earns his livelihood by agriculture. In my opinion, the word earns" is not used by the Legislature in the narrow sense of earning by personal exertions only, but it includes receiving agricultural income from one's lands. Take the case of a sole minor whose principal means of livelihood consists of income from agricultural lands which are either managed by servants or given to tenants. In my opinion, it cannot be suggested that such a person would not fall under the definition of agriculturist in the Dekkhan Agriculturists Belief Act. On the same reasoning I fail to see why a minor who, along with the adults, is a member of a joint Hindu family should not be regarded as an agriculturist if he obtains his livelihood from his share in the income of agricultural lands. I feel quite certain that the Legislature could not have intended that while adult coparceners in such a case would get the benefit of the Dekkhan Agriculturists Belief Act, the minor coparceners should not, so far as their share in the property is concerned. With great respect I do not agree with the observations made in Gadadhar V/s. Gangaram ( 31) 18 A.I.R. 1931 Bom. 453 to the effect that a minor coparcener would not come under the definition of an agriculturist. The actual decision in that case was that an infant two or three years old cannot be said to be earning the income of agricultural lands and that he ought to depend for his support on his father. It is not clear whether in that case there was joint family property in which the minor had a share by birth. But where there is such property, the case would be governed by the decision of Kania J. in Mahadev V/s. Bamchandra ( 38) 25 A.I.R. 1938 Bom.96 (which I think takes the correct view. The intention of the Legislature seems to have been that all persons who depend upon the income of agricultural lands belonging to them should be protected by the provisions of the Dekkhan Agriculturists Belief Act. I am, therefore, of the opinion that the minors in the present case are agriculturists under the Act, and their appeal should be allowed.