GIRWAR DAYAL Vs. NARAIN SINGH

JUDGEMENT

(1.) This second appeal arises out of an objection brought by the respondent- judgment-debtors to the attachment of certain zamindari property and of a residential house. The debt on which the decree was obtained was incurred by the father of the first four respondents and husband of respondent 5. A decree on that debt was obtained against the respondents, but was confined for execution to the estate of the deceased debtor in their hands. The deceased debtor left some zamindari property and he left this house. Both the lower Courts have refused to allow this property to be attached or sold in execution on the ground that as regards the zamindari property it was exempt from attachment by certain sections of the Bundelkhand Encumbered Estates Act (U.P. Act 1 of 1903). As regards the house they held that it was exempt from attachment under Clause (c), Sub- section 1 to Section 60, Civil P.C., as a house belonging to an agriculturist and occupied by him.

(2.) The appellant's first contention in this second appeal is that the lower appellate Court has not determined whether Machal Singh deceased was an agriculturist and whether the house was occupied by him as such. This is true. What the Court appears to hold was that the objectors respondents were agriculturists and occupied the house as such. It did not specifically state in its judgment that they occupied this house as agriculturists but the evidence shows that they had no other house. I do not concur with the contention of the appellant's counsel that the question was whether the house was occupied by the deceased debtor as an agriculturist and not whether it was occupied by the objectors (judgment-debtors). The decree was obtained against the objectors, and they are entitled to the exemption allowed by Section 60(1)(c). It is not necessary for them to prove, therefore, that their father (the debtor) occupied this house as an agriculturist. It is sufficient if they prove that they occupy as agriculturists. Authority for this is to be found in Radhakisan Hokumji V/s. Balvant Ramji [1883] 7 Bom. 530, where the following, passage occurs: The exemption of a dwelling from attachment, depends on its answering the description already given at the time when the decree-holder seeks to attach it. If his original judgment-debtor is dead, he proceeds against his representative as liable under the decree, and the representative taking the place of the deceased as to liability under Section 266, takes his place also as to the protection afforded by Clause (c) of the section.

(3.) The present case is still stronger because the decree was obtained against the objectors and not against their father. It is not objected in the memorandum of this appeal that the lower appellate Court was not justified in finding that the objectors were agriculturists. But in argument before me it is stated that the fact that they held zamindari property should prevent their being regarded as agriculturists. Reliance is placed on Jamna Prasad V/s. Raghunath Prasad [1913] 35 All. 307. There it was held that where a party was both an agriculturist and zamindar, the question was whether his main source of income was derived from the collection of rent or from cultivation by himself. That case is to be distinguished from the present case because there was a finding of the lower appellate Court in that case that the house had not been occupied by the deceased judgment-debtor as an agriculturist. In the present case we have a finding that this house was so occupied by the objectors. I am not prepared to go behind this finding of fact unless it is shown to have been a finding based on some wrong view of the law; and it is not shown to me that the lower appellate Court or the trial Court entertained any wrong view of law. In any case I feel great doubts as to the correctness of the decision relied upon, if it is to be construed to mean that, wherever a person is both a cultivator of land and a zamindar, he can only be called an agriculturist if his main source of income in derived from agriculture. Where a person cultivates and has only one house it seems to me that if cultivation occupies a substantial portion of his time and activities he must be deemed to be an agriculturist and to occupy his house at any rate partly for the purposes of agriculture. But, as stated above, this particular question has not been raised in the memorandum of appeal, which depended on the view that we must look at the status of the father of the objectors and not at their own status, a view which I hold to be wrong,