# Appasaheb Tuljaratn Desai v. Balchandra Vithalr6lo Thube l>nant ]

- **Citation:** [1961] 2 S.C.R. 163
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** Civil Appeal ·No. 716 of 1957
- **Bench:** Jafer Imam, A. K. Sarkar, Rag~Ubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/appasaheb-tuljaratn-desai-v-balchandra-vithalr6lo-thube-l-nant-2209
- **Pages:** 26

## Headnote

Watan Property--Building on watan land-Construction subsequent to creation of watan-Building, whether watan propertyBuilding belonging to an agriculturist-Liability for attachment and
sale-" Agriculturist", meaning of-Bombay Hereditary Offices
Act, z874 (Bom. 3 of I874), s. 4-Code of Civil Procedure, z908
(Act 5 of z908), s. 6o(z), proviso (b) (c).
.
In respect of a decree passed against T, who was the owner
of certain watan properties, a building standing on watan land
comprised in the said properties, was sought to be attached and
sold in execution of the decree. The appellant, who was the legal
representative of T, claimed that the building was not liable for.
attachment and sale because (1) the building, being part of wa.tan
property within the meaning of s. 4 of the Bombay Hereditary
Offices Act, 1874, was not saleable property under sub-s. (1) of
s. 60 of the Code of Civil Procedure, 1908, and (2) in any case, he
was an agriculturist and the building belonging to and occupied
by him was protected from attachment and sale by cl. (c) of the
proviso to sub-s. (1) of s. 60 of the Code. The facts showed that
the building was not in existence when the watan was first
created but had been built subsequently by one of the watandars
and there was no indication on the record that the building was
constructed for' the purpose of providing remuneration for the
performance of the duty appertaining to a hereditary office.
The evidence also showed that the appellant was not entirely
dependent for his livelihood upon the income from the home
farm, that he had substantial income from other lands and that
there was nothing to show that this income derived from his
other lands was the result of cultivation by him.
Held, that the building in question was not an accession to
the land so as to partake of the character of the land on which
it was constructed and did not come within the definition of
watan property in s. 4 of the Bombay Hereditary Offices Act,
1874.
Held, further (per Jafer Imam and Raghubar Dayal, JJ.,
Sarkar, J., dissenting), that the word "agriculturist" in cl. (c) of
the proviso to sub-s. (1) of s. 60 of the Code of Civil Procedure,
1908, must carry the same meaning as the word in cl. (b) and
that in order that a person might come within the meaning of
the word in those clauses it must be shown that, he was really
dependent for his living on tilling the soil and was unable to
October a8 •
' ' l
1960
Appasaheb
Tuljaratn Desai
v.
Balchandra
Vithalr6lo Thube
l>nant ].
164
SUPREME COURT REPORTS
[1961]
maintain himself otherwise, though it was not necessary that he
must till the land with his own hands.
That on the facts the appellant was not an agriculturist
within the meaning of the word in s. 60 of the Code.
Case Jaw reviewed.
'
Per Sarkar, J.-(1) On the plain meaning of the word
"agriculturist" in .els. (b) and (c) of the proviso to sub-s. (1) of
s. 6o of the Code an agriculturist is any person who occupies
himself with agriculture. There is nothing in cl. (c) to indicate
that the agriculturist there mentioned must be one who depends
for his living on agriculture. A person occupying himself with
agriculture would be an agriculturist though h'e did not cultivate with his own hands and carried on agriculture in a very
large scale. He would still be an agriculturist even if he had
other means of livelihood besides agriculture.
(2) Under cl. (c) in order that houses and buildings belonging to an agriculturist might be protected from attachment and
sale they must be occupied by him for the purpose of agriculture.

## Text

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2 S.C.R. SUPREME COURT REPORTS
163
SHRIMANT APP ASA HEB TULJ ARAM DESAI
AND OTHERS
• v.
BHALCHANDB.A VITHALRAO TRUBE
(JAFER IMAM, A. K. SARKAR and RAG~UBAR
DAYAL, JJ.)
Watan Property--Building on watan land-Construction subsequent to creation of watan-Building, whether watan propertyBuilding belonging to an agriculturist-Liability for attachment and
sale-" Agriculturist", meaning of-Bombay Hereditary Offices
Act, z874 (Bom. 3 of I874), s. 4-Code of Civil Procedure, z908
(Act 5 of z908), s. 6o(z), proviso (b) (c).
.
In respect of a decree passed against T, who was the owner
of certain watan properties, a building standing on watan land
comprised in the said properties, was sought to be attached and
sold in execution of the decree. The appellant, who was the legal
representative of T, claimed that the building was not liable for.
attachment and sale because (1) the building, being part of wa.tan
property within the meaning of s. 4 of the Bombay Hereditary
Offices Act, 1874, was not saleable property under sub-s. (1) of
s. 60 of the Code of Civil Procedure, 1908, and (2) in any case, he
was an agriculturist and the building belonging to and occupied
by him was protected from attachment and sale by cl. (c) of the
proviso to sub-s. (1) of s. 60 of the Code. The facts showed that
the building was not in existence when the watan was first
created but had been built subsequently by one of the watandars
and there was no indication on the record that the building was
constructed for' the purpose of providing remuneration for the
performance of the duty appertaining to a hereditary office.
The evidence also showed that the appellant was not entirely
dependent for his livelihood upon the income from the home
farm, that he had substantial income from other lands and that
there was nothing to show that this income derived from his
other lands was the result of cultivation by him.
Held, that the building in question was not an accession to
the land so as to partake of the character of the land on which
it was constructed and did not come within the definition of
watan property in s. 4 of the Bombay Hereditary Offices Act,
1874.
Held, further (per Jafer Imam and Raghubar Dayal, JJ.,
Sarkar, J., dissenting), that the word "agriculturist" in cl. (c) of
the proviso to sub-s. (1) of s. 60 of the Code of Civil Procedure,
1908, must carry the same meaning as the word in cl. (b) and
that in order that a person might come within the meaning of
the word in those clauses it must be shown that, he was really
dependent for his living on tilling the soil and was unable to
October a8 •
' ' l
1960
Appasaheb
Tuljaratn Desai
v.
Balchandra
Vithalr6lo Thube
l>nant ].
164
SUPREME COURT REPORTS
[1961]
maintain himself otherwise, though it was not necessary that he
must till the land with his own hands.
That on the facts the appellant was not an agriculturist
within the meaning of the word in s. 60 of the Code.
Case Jaw reviewed.
'
Per Sarkar, J.-(1) On the plain meaning of the word
"agriculturist" in .els. (b) and (c) of the proviso to sub-s. (1) of
s. 6o of the Code an agriculturist is any person who occupies
himself with agriculture. There is nothing in cl. (c) to indicate
that the agriculturist there mentioned must be one who depends
for his living on agriculture. A person occupying himself with
agriculture would be an agriculturist though h'e did not cultivate with his own hands and carried on agriculture in a very
large scale. He would still be an agriculturist even if he had
other means of livelihood besides agriculture.
(2) Under cl. (c) in order that houses and buildings belonging to an agriculturist might be protected from attachment and
sale they must be occupied by him for the purpose of agriculture.
CIVIL
APPELLATE JURISDICTION:
Civil Appeal
·No. 716 of 1957.
Appeal from the ~udgment and decree dated July
29, 1955, of the former Bombay High Court in Appeal
No. 50 of 1953 under the Letters Patent against the
judgment and decree dated September 3, 1953, of the
said High Court in First Appeal No. 547 of 1952.
H. N. Sanyal, Additional Solicitor-General of India,
T. V. R. Tatachari and M. S. K. Sastri, for the appellants.
Purshottam Trikamdas, H. R. Gokhale and R. Gopalakrishnan, for the respondent.
1960. October 28. The Judgment of Jafer Imam
and Raghubar Dayal, JJ., was delivered by Jafer
Imam, J. A. K. Sarkar, J., delivered a separate judgment.
IMAM J.-This is an appeal against the judgment
of a Division Bench of the Bombay High Court in
Letters Patent Appeal No. 50 of 1953, reversing the
decision of Shah, J. and restoring the order passed by
the executing court which had been set aside by him.
Two questions arise for decision in _this appeal (I)
whether the Wada (house) ordered to be attached by
the executing court is Watan property, and if so, can
2 S.C.R. SUPREME COURT REPORTS
165
it be attached in execution of a decree ? (2) If the
Wada is not Watan property, is it exempted from
attachmenl; by virtue of the provisions of li.l. 60 of the
Code of Civil Procedure?
It is necessary now to sta.te & fe.w f&cts.
One Rao
Ba. Vithalrao La.xmanrao Thube, hereinafter referred
to as Laxmanrao, brought Civil Suit No. 313 of 1943
against 'l'uljaramarao N arainrao Desai, hereinafter
referred to as Tuljaramarao, to recover Rs. 80,000 which
had been borrowed by him from the plaintiff. Laxmanrao's suit was decreed on December 20, 1943. Tuljaramarao having died his legal representatives, the present appellants, were brought on the record on September 21, 1944. In April, 1949, Laxmanraofiled an application for the execution of the decree. He sought the
attachment, with a view to their subsequent sale, of
certain properties including the Wada which is, the
subject.matter of this appeal. The appellants objecteq.
to the proposed attachment on various grounds. The
executing court on December 17, 1951, issued a warrant of attachment only against the Wada in question.
The appellants appealed to the Bombay High Court.
Their appeal was heard by Shah, J., who by his order
dated September 23, 1953, set aside the order of
attachment relying on the decision of Chagla, J., in
second Appeal No. 760 of 1942. He, however, gave
no decision on the question whethe.r s. 60 of the Code
of Civil Procedure gave protection to the Wada from
attachment. Against the decision of Shah, J., there
was an appeal under the Letters Patent of the High
Court which was heard by a Division Bench. The
Div:ision Bench, as already stated, reversed the decision of Shah, J. and restored the order made by the
executing court. Subsequently, the High Court gave
a certjficate that the case was a fit one for appeal to
this Court.
It is undisputed that the whole of village Nandi
had been granted as inam to the ancestor of Tuljaramarao and his descendants as per Sanad, Ext. 54,
and the Inam Patrak, Ext. 57. In that San ad there
is no mention of any Wada existing on the Inam
land. According to the executing court the Wada
Appasaheb
Tuljaram Desai
v.
Balchandra
Vithalrao Thub•
Imam].
166
SUPREME COURT REPORTS
[1961]
'960
appears to have been built after the grant.
It
Appasal"b
appears that the opinion of the Division Bench of
Tuljarnm Desai the High Court was also to the same effect. There
v.
is no finding of Shah, J., to the contrary. We must,
Balchaud'a
therefore, proceed. on the basis that the Wada in
Vitha/rno Thubc question was not the subject of the original grant.
1 -
This Wada came to be constructed on the land in
mam J.
the inam village of Nandi sometime subsequent to the
grant.
What has to be decided is, do the attributes of
"Watan Property" accrue to the \Vada which was
constructed after the grant on land which was admittedly" Watan Property" as defined by the Bombay
Hereditary Offices Act, 1874 (Bombay Act No. III of
1874), hereinafter referred to as the Act. In appeal
No. 760 of 1942, Chagla, J., took the view that the
house in that case was an accession to the site on
which it stood. Accordingly, it must partake of the
character of the land on which it stood.
The learned
Judge stated that the question which he had to determine was whether the house was immovable property
held for the performance of the duty appertaining to
an hereditary office within the meaning of s. 4 of the
Act. Having regard to the definition of" immoveable
property " in the Bombay General Clauses Act he was
of the opinion that the house certainly formed part of
the immoveable property which was held for the performance of the duty appertaining to the hereditary
office of the Watan and that the only answer to the
question " what is the immoveable property which is
held for the performance of the duty under section 4?"
can be both the land and the house. If the house
forms part of the immoveable property it is not possible to sever the two and to say that it is only the land
which is Watan property and not the house which is
permanently fastened to it. Shah, J., relied upon the
decision of Chagla, J., and held that the land on
which the· Wada in the present case stood, being
\Vatan property, the Wada must also be deemed to
have acquired that character. The Division Bench
,,
which heard the appeal against the decision of
Shah, J., was of the opinion that although a house
2 S.C.R. SUPREME COURT REPORTS
167
built on land must be regarded as immoveable proc
· perty it did not follow that like the land on which it
was built the house became Watan property. The
fact that a house subsequently built became immoveable property would have no material bearing on the
question whether it was Watan property or not. In
order that the house may be regarded as Watan property_it must satisfy the test laid down by the definition of the word" Watan Property" ins. 4 of the Act
and that if the word " held " was construed in the
way in which the learned Judges of the Division
Bench thought it should be, it would be difficult to
accept the view that a house subsequently built by a
watandar-on a part of the W atan land could be said
to be held by him for the performance of his duties of
a hereditary office. The learned Judges bf the Division Bench accordingly were of the opinion that
Shah, J., erred in so holding.
" Watan property " has been defined in the Act
to mean:
"The moveable or immoveable property held,
acquired, or assigned for providing remuneration for
the performance of the duty appertaining to an hereditary office. It includes a right to levy customary
fees or perquisites, in money or in kind, whether at
fixed times or otherwise.
It includes cash payments in addition to the original watan property made voluntarily by the State
Government and subject periodically to modification
or withdrawal."
The inam lands of N andi were undoubtedly held as
remuneration for the performance of the duty appertaining to an hereditary office and therefore were
W a.tan properties.
On the findings of the courts
below the Wada in question was not the subject of
the grant. In our opinion, therefore, at no time was it
held for providing remuneration for the performance
of the duty appertaining to a hereditary office. Nor
could it be said to have been acquired for performance
of any such duty. It had been constructed some time
subsequent to the grant either by the grantee or his
descendants and there is no indication on the record
Appasaheb
Tuljarain Desai
v.
Balchandra
Vithalrao Thube
Iinain ].
r960
Appasaheb
Tuljara1n Desai
v.
Balchandra
Vithalrao Thube
168
SUPREME COURT REPORTS
[1961)
that it wa.s constructed for the purpose of providing
remuneration for the performance of the duty appertaining to a hereditary office.
To that extent at least
it appears to be clear that the Wada in qnestion does
not come within the definition of Watan property as
defined in the Act.
The only question is whether
having been constructed on land which is Watan property and being immovable property within the meaning of the Bombay General Clauses Act, does it -partake of the character of the land on which it stood?
On behalf of the appellants it was argued that the
Wada is an accession to the Watan property, namely,
the land of village N andi. It seems to us, however,
that construction of a Wada on land which is Watan
property is not an accession to it, as accession to the
land would .suggest that over a course of years imperceptible accretion to the land has taken place and
it was impossible to distinguish the original land from
the accreted land. In such a case the accreted land
may possibly partake of the character of the original
land.
Adjacent lands to the original land which
have been acquired and can be distinguished cannot
partake of the character of the original land.
On behalf of the appellants it was argued that the
right, title and interest of the grantor had to be looked
at first in construing a grant and if it appeared from
the terms thereof that it did not contain any reservation or exception then all the rights, title and interest
of the grantor which he was capable of granting would
pass to the grantee. The grantor in this case was the
Government which could have built a construction on
the land granted or dug tube wells on it. The grantee,
therefore, could also build a house or any other structure on the laud. On the other h11.nd, it was contended on behalf of the respondent th~t the position of a
watandar was not that of an absolute owner of the
land. He held the land on certain conditions. The
land was liable to forfeiture if he was guilty of certain
acts mentioned in s. 60 and Schedule II of the Act.
We will assume, there being nothing to the contrary
in the Sanad, that the grantee was not restricted
from constructing a building on the land. From that,
..
.,.
I
•
•
2 S.C.R. SUPREME COURT REPORTS
169
however, it does not necessarily follow that the
building so constructed became W a.tan property
within the meaning of the Act. If the Government
could have built a construction on the I.and it
could also have dismantled it and removed the
material with which it was made. Similarly, the
grantee could do so, there being no restriction in
that regard in the terms of the Sanad. It seems·
to us that on a proper construction of the Sanad
there was no impediment in the way of the grantee from dismantling the house which he had built
and removing the materials with which it had been
constructed and selling the same.
Indeed, unless it
is held that a house constructed on the land partakes of the character of the land, it is difficult to see
how the grantee is prevented from selling or mortgaging it but not the land on which it stood. It seems
to us, therefore, that the Wada in the present case
although immovable property did not partake of the
character of the land on which it was constructed
because it was severable from the land and was capable of being dismantled and the materials of which
could be removed and sold without violating any of
the provisions of the Act. In our opinion, the decision
of the Division Bench of the High Court that the
Wada was not Watan property appears to be correct.
The next question for consideration is whether the
Wada is one belonging to an agric'ulturist and occupied by him within the meaning of cl. (c) of the proviso to s. 60(1) of the Code of Civil Procedure. If it is,
then it is exempted from attachment by the provisions
of the proviso. It was urged that as the word " agriculturist " has not been defined in the Code, the word
must be construed according to its ordinary meaning.
According to Shorter Oxford English Dictionary this
word can also mean a farmer.
Neither the extent of
the land farmed by him nor the amount of income
derived by him from cultivating the land was a relevant consideration in construing the word " agriculturist". Nor would it be right to restrict the meaning of the word " agriculturist " to mean that an agriculturist must be a person who himself or by the aid
2:1
1960
Appasaheb
Tuljaram Desai
v.
Balchandra
Vithalrao Thube
Imam].
Appasaheb
Tuljara111 D.:sai
v.
Balcha11dta
Vithalrao ThHbe.
Imam j.
170
SUPREME COURT REPORTS
[1961]
of the members of his family tills the land and not
with the aid of employed labour. On behalf of the
r.espondent, however, it was contended that the word
"agriculturist" in cl. (c) of the proviso must bear the
same meaning as the word "agriculturist" in cl. (b)
of the proviso. It was necessary, therefore, to construe the provisions ofcl. (b) as well in order to understand what the Code intended the word "agriculturist" to mean in cl. (c).
On a proper construction
of cl. (b) not only an agriculturist must be the tiller of
the land but he must also be a small agriculturist.
Clause (b) was not intended to refer to a person who
cultivated a large area of land and derived from it a
large income. It was pointed out that in 'the present
case the appellant Appasaheb was cultivating a very
large area of land with the aid of employed labour
and derived an income somewhere between Rs. 30,000
to 35,000 a year. Section 60(1) of the Code states in
detail what property of a judgment debtor is liable to
attachment and sale in the execution of a decree. It
was urged that but for the proviso all the properties
of Tuljaramarao other than We.tan property were liable to attachment and sale in execution of Laxmanrao's decree. The proviso no doubt exempted from
attachment and sale certain properties mentioned
therein but cl. (b) of the proviso clearly indicated that
the object of the Code was to save in the case of a
judgment debtor his tools as an artisan and, where he
was an agriculturist, his implements of husbandry and
such cattle and seed-grains as may, in the opinion of
the court, be necessary to earn his livelihood. It did
not even exempt his agricultural produce unless there
was a notification under s. 61 of the Code specifyirrg
by a general or special order how much of the agricultural produce was, in the opinion of the State Government, necessary for the purpose of providing, until the
next harvest, for due cultivation and the support of
the judgment debtor and his family. It was suggested,
therefore, that the Code intended to exempt from
attachment and sale, in the case of an agriculturist,
only that much which was necessary to enable him to
earn his Ii velihood as suoh.
2 S.C.R. SUPREME COURT REPORTS
171
The meaning of the word " agriculturist " has been
interpreted by various High Courts in India. Reference to only some of t,hese cases need be made. In
the case of Hanmantrao Annarao v. Dhruvaraj Pand·urangrao (1) it was held by the Bombay High Court that
the word "agriculturist" in els. (b) and (c) of the proviso to s. 60(1) of the Code of Civil Procedure denotes
persons who are personally engaged in tilling and cultivating the land and whose livelihood depends upon
the proceeds of such tillage and cultivation of the
soil. It does not include large landed proprietors
even though they may be tilling the land and cultivating it through their servants. In the case of Parvataneni Lakshmayya v. The Official Receiver of Kistna (2) a Full Bench of the Madras High Court arrived
at the following conclusion after considering various
decisions of some of the High Courts in India:-
"We think that, having regard to the scheme of
the section exempting from attachment, as it does,
tools of artisans, and, where the judgment debtor is an
"agriculturist " his implements of husbandry and
such cattle and seed-grain as may in the opinion of
the Court be necessary to enable him to earn his livelihood, and his houses and other buildings occupied
by him, protection is intended to be given to those
who are real tillers of the land, and that an " agriculturist" in the section is a person who is really dependent for his living on til1ing the soil and unable to
maintain himself otherwise. Main, chief, or principal
sources of income are not, in our view, the proper
tests.
A man's main source of income may be from
tilling the soil but his other source or sources of income may be more than sufficient. to maintain him.
The fact that a man's income from tilling the soil
may be larger than his income from his ownership of
land or other sources does not seem to us to make him '
an" agriculturist" within the meaning of the section.
At the same time we see no reason for depriving an
" agriculturist" of the exemption under the section
because he may have invested money in a business or
businesses as alleged in the present case and may
(1) (1946) 49 B.L.R. 867.
(:z) LL.R. [1937] Mad. 777.
Appasaheb
Tuljaram Desai
v.
Balchandra
Vithalrao Thube
Imam].
Ig6o
Appasaheb
Tuljarant Desai
v.
Balchandra
Fithalrao Thube
Imani ./,
172
SUPREME COURT REPORTS
[1961]
derive some income therefrom or do coolie work and
add to his earnings in bad times.
The test of sole
source of income if applied would deprive him of the
benefit of the section and we prefer the tests which
we have already laid down, viz., that he must be a tiller of the soil really dependent for his living on tilling
the soil and unable to maintain himself otherwise."
In the case of Tirloki Prasad v. K unj Behari Lal ( 1) the
Allahabad High Court held that· the test to be applied in deciding whether a person is an agriculturist is
whether his main source of income is derived from
cultivation or not. In the case of Dwarka Prasad v.
Municipal Board, Meerut (') the same High Court
held that there was no reason for holding that cl. (b)
of the proviso to s. 60(1) applied only to the case of
very small farmers and not to the case of large farmers. Clause (b) aimed at protecting the implements
of every farmer so as to enable him to continue to
earn his livelihood in the same way as he had been
doing previously. There was nothing to indicate that
the clause was limited to small farmers. In the case
of Gowardhandas v. Mohanlal (') the conc)usions of the
Nagpur High Court were:
" (i) Whether a person is an agriculturist or not
is not a question turning on source of income but on
nature of occupation.
(ii) A person may have- many occupations. If
one of them is agriculture and for that purpose a
house or building is occupied, protection can be
claimed.
(iii) A person who owns land and lets it reserving either money or produce is not an agriculturist
but a landlord.
(iv) A person who cultivates the land as a labourer, though neither a landowner nor a tenant, is an
agriculturist.
(v) If a man cultivates the land with his own
hands or by means1 of labourers whose activities he
directs he is an agriculturist whether he operates on a
large or a small scale. If he has no connection with
(t) A.I.R. 1935 All. 448.
(2) A.I.R. 1958 All. 561.
(3) I.L.R. [1938] Nag. 461.
2 S.C.R. SUPREME COURT REPORTS
173
the land except that he owns it and people work for him,
r96o
he may or may not be an agriculturist according to cirAppasaheb
CUmstances."
Tuljaram Desai
In the case of Nihal Singh v. Siri Ram (1) the Labore
v.
High Court held that the word "agriculturist" means
Balchandra
a per
1son who personally engages in the occupation of Vithalrao Th14be.
tilling the soil and derives his livelihood from that
Im::;: J.
occupation and cannot (or does not) maintain himself
from other sources. On the facts of the case that
Court held that a man who merely received rent from
tenants or the income of the produce derived by tiie
employment of servants or partners could not be said
to depend for his livelihood upon the proceeds derived from so engaging himself in the tillage of the soil.
In the. case of Anantalal v. Bibhuti (2) the Patna High
Court held that an agriculturist was one who tilled
the soil and thereby earned his livelihood and was
expected to have implements of husbandry, cattle and
seed-grain. This, however; did not mean that he
must till the land with his own hands or that be must
necessarily have his own implements of husbandry.
In any event, cultivation must be his main source of
income though this would not be the sole test. The
question whether a person was an agriculturist or not
would have to be decided with reference to the facts
of each particular case.
In the present case the evidence of the appellant's
own witness, Balaji, shows that Tuljaramarao had
reserved some lands for a home farm about 8 years
before his death. The area reserved was about 35 acres
and that he maintained about 12 bullocks and 8 servants. He was getting an income of Rs. 20,000 to
Rs. 25,000 a year from these lands. He used to keep
his cattle in the Wada where his servants also stayed
and his agricultural implements were kept. The produce of the lands was also stored in the Wada.
Tuljaramarao used to supervise the agricultural operations and his sei;vants. After his death bis son
appellant Appa.saheb became the owner. Appasaheb
increased the acreage of the cultivation of the home
farm to about 60 acres. He has 14 bullocks 'nd 10
(1) (1939) I.L.R. :n Lah. 23.
(2) (1944) I.L.R. 23 Pat. 348.
174
SUPREME COURT REPORTS
[1961]
1960
or 12 servants and the income is Rs. :J0,000 to
Rs. 35,000 a year.
The cattle and the produce are
A ppasaheb
k
•
T
Tulju>am Desai
ept m the Wada where he also resides.
his witness
"·
also stated that the appellant Appasaheb had inams
Balchandra
in 4 villages.
Furthermore, in 10 or 12 villages
Vithahao Thube he owns lands and he gets about Rs. 35,000 to
Iman: ].
Rs. 40,000 from his lands. The said ).ppasaheb and
his brother sometimes worked personally in the fields.
It is clear, from this evidence, that Appasaheb is by
no means entirely dependent for his livelihood upon
the income from the home farm.
Apart from the
income of the home farm he has a substantial income
from other lands and there is nothing to show that
this income derived from his other lands is the result
of cultivation by him.
It was contended on behalf of the appellants that
the Bombay High Court had taken an_ extreme view
in the case of Hanmantrao Annarao v. Dhruvaraj
Pandurangrao (1).
Reliance was placed on the decision of the Allahabad High Court in Dwarka Prasad
v. Meerut Municipality(') where it was held that a
tractor was an implement of husbandry and it was
not subject to attachment although it was used for
cultivating au area of about 1,200 bighas of a farm.
The decisions of the Madras High Court in the case of
Parvataneni Lakshmayya v. The Official Receiv•r of
J(iatna ('), of the Lahore High Court in the case of
Nihar Singh v .. Siri Ram and Others(') and of the
Nagpur High Court in the case of Gowardhandas v.
M ohanlal (') were also relied upon on behalf of the
. appellants in order to show that to be an agriculturist
a person.did not have to personally cultivate the land
and that it was immaterial whether the area cultivated or the income derived therefrom was large or
small. The real test was, was the cultivation his
main source of livelihood ? It was submitted, on the
facts of the present case, that the appellant Appasaheb
depended for his livelihood on the income derived
from the land cultivated by him and that the Wada
(1) (1946) 49 B.L.R. 867.
(ZJ A.LR. r958 All. 56r.
(3) !.L.R. [r937] Mad. 777.
(4) (1939) I.L.R. zr Lah. 23.
(5) I.L.R. [1938] Nag. 461.
2 s.c.R. SUPREME COURT REPORTS
175
on the land was occupied by him as an agriculturist
for the pu::.-pose of his cultivation. Such being the
position the Wada was occupied by him as an agriculturist and was therefore exempted from attachment
under cl. (c) of the proviso to s. 60(1) of the Code of
Civil Procedure.
Sub-section (1) of s. 60 of the Code of Civil Proce.
dure makes all saleable property, movable and immovable, belonging to the judgment debtor and over
which he has a disposing power liable to attachment
and sale in execution of a decree againi:it him. In
this sub-section unless the terms of the proviso came
to the rescue of the judgment debtor, all lands and
houses or other buildings, goods and money, amongst
other things, belonging to him would be liable to be
attached. The Legislature, however, recognized that
it would not be expedient to leave the matter at that.
Hence the proviso. The relevant clauses in order to
determine what the word " agriculturist " means are
clauses (b) and (c) of the proviso. Under cl. (b) the
tools of an artisan are exempted from attachment.
According to the Shorter Oxford English Dictionary
the word " artisan " means a mechanic, handicraftsman or a.n artificer. The object of the Legislature in
exempting from attachment tools of an artisan was
obviously to leave him his tools in order to enable
him to make a living.
Without his tools the artisan
would be destitute, a situation which the Legislature
intended to avoid. In the case of a judgment debtor
who was an agriculturist, the Legislature intended
that his implements of husbandry and such cattle and
seed-grain as, in the opinion of the court, were necessary to enable him to earn his livelihood as an agriculturist should be exempted from attachment. Here
again, the intention of the Legislature was to leave in
the hands of an agriculturist sufficient means whereby he could earn his livelihood as an agriculturist.
According to Shorter Oxford Dictionary one of the
meanings of the word " husbandry " is the business of
husbandry, that is to say, a person who tills and
cultivates the soil or a farmer. The same dictionary states that one of the me~nings of the word
Appa.5aheb
Tuljarau1 Desai
v.
. Ba/cliandra
Vitha/rao Thube
Imam j.
.t960
Appasaheb
Tuljaram Desai
v.
Balchandra
Vithalrao Thube
Tmam }.
176
SUPREME COURT REPORTS
[1961]
"livelihood " is means of living, maintenance. It can
also mean income, revenue, stipend. In the case of an
agriculturist his implements of husbandry must therefore mean implements with which he tills the soil.
These are saved from attachment. So far as his cattle
and seed-grain are concerned, only that much is exempted which, in the opinion of the court, would be
necessary to enable him to earn his Ii ve!ihood and by
which he could earn his maintenance. It is to be
noticed that under cl. (b) the land which an agriculturist tills is not exempted from attachment. The agricultural produce of the land-is exempted to the extent
as notified in the Official Gazette issued under s. 61 of
the Code. On a fair reading of the provisions of
cl. (b), that which is saved to an agriculturist are his
implements with which he tills the soil and such
cattle and seed-grain which, in thEI opinion of the
court, are necessary for him to use in order to enable
him to maintain himself. The provisions of cl. (b)
in the case of an agriculturist, therefore, suggest a
person who tills the soil in order to maintain himself.
Under cl. (c) houses and other buildings (with the
materials and the sites thereof and the land immediately appurtenant thereto and necessary for their
enjoyment) belonging to an agriculturist and occupied
by him are exempted from attachment. The word
" agriculturist" in this clause must carry the same
meaning as the word " agriculturist " in cl. (b) and
the house must be occupied by him as such. The object
of the exemption in cl. (c) apparently is that an agriculturist should not be left without a roof over his
head. In other words, the Legislature intended by
els. (b) and (c) to prevent an agriculturist becoming
destitute and homeless. It was, however, argued on
behalf of the appellants that there are no restrictive
words in cl. ( c ).
So long as it was a house belonging
to an agriculturist and occupied by him, it was exempted from attachment no matter what other income
than agriculture was earned by him. The Wada in
question was clearly occupied by the appellants for
the purpose of tilling the land of the home farm and
for storing the produce thereof, the implements of
2 S.C.R. SUPREME COURT REPORTS
177
.
husbandry and tethering of cattle employed in cultivating the land. It seems to us, on the evidence of
Appasaheb
~he appellants' own witness, that they ~o i:iot themTuljaram Desai
selves till the land of the home farm which is done by
v.
a large number of labourers employed by them.
Balchandra
Tuljaramarao did not himself cultivate the land. He Vithalrao Thube
merely supervised the work of cultivation by the
labourers. The witness, however, did state that sometimes Appasaheb and his brother worked personally
Imam].
in the fields.
This is a vague statement which does
not necessarily mean that they did any act of cultivation themselves.
The Wada in question is a big
structure where the appellants reside but if they are
not agriculturists within the meaning of that word in
s. 60, the Wada cannot be exempted from attachment.
It seems to us that even if it is not necessary that a
person must till the land with his own hands to come
within the meaning of the word "agriculturist" he
must at least show that he was really dependent for
his living on tilling the soil and was unable'' !Jo maintain himself otherwise. In the present case;-it is quite
obvious that even if the appellants can be fdescribed
as agriculturis.ts in the widest sense of that term, they
are not agriculturists who are really dependent for
their maintenance on tilling the soil and that they are
unable to maintain themselves otherwise. The evidence shows that Tuljaramarao was getting an income
of nearly 20,000 to 25,000 rupees from lands cultivated
in the home farm and that the appellant A ppasaheb by
extending the acreage of that farm was receiving an
income of Rs. 30,000 to Rs. 35,000. In addition he
had lands in 10 01: 12 other villages and his income
from the lands was Rs. 35,000 to Rs. 40,000. Assuming that these figures include the income from the
lands of the home farm, they would show that in
addition to that income he had an additional income
of at least Rs. 5,000 from lands in villages other than
Nandi.
Furthermore, the appellant Appasaheb is
receiving a cash allowance of Rs. 700 to Rs. 800
per annum and Rs. 4,000 to Rs. 5,000 from the village
officers of the four inam villages. In these circumstances, it can hardly be said that the appellant
23
1y60
Appasaheb
1'ttljaram Desai
v.
llalchandra
l'ithalrao Thul1e
ln1an1 ].
Sal"kar J.
178
SUPREME COURT REPORTS
[1961]
Appasaheb is really dependent for his maintenance by
tilling the soil and unable to maintain himself otherwise.
From this point of view it seems to us that he
cannot be regarded as an agriculturist within the
meaning of that word in s. 60 of the Code.
In our opinion, the decision of the High Court that
the Wada in question was not Watan property and
that it was not exempted from attachment by virtue
of the provisions of s. 60(1) of the Code is correct. The
appeal is accordingly dismissed with costs.
SARKAR J.-The appellants are the legal representatives of one Tuljaram Desai. Tuljaram was the
owner of certain watan properties. On his death, his
son the appellant Appasaheb became entitled to them.
The other appellants are the widow and younger son
of Tuljaram.
Sometime in 1943 one Vithalrao Thu be obtained a
decree for Rs. 80,000 against Tuljaram. By 1949
both Tuljaram and Vithalrao had died. The respondent is the successor in interest of Vithalrao.
The present appeal arises out of the proceedings for
the execution of the decree started by the respondent
against the appellants. In this appeal we are concerned only with a wada (building) belonging to the
appellant Appasaheb, standing on watan land which
the respondent seeks to have attached and sold in
execution. It is not now in dispute that watan properties are not saleable properties and cannot therefore be attached and sold in execution. The wada
~tands on watan land and the respondent seeks to
proceed against the structure apart from the land.
The appellant Appasaheb contends that he is an
agriculturist and that wada belonging to and occupied
by him is protected from attachment and sale by cl.
(c) of the proviso to sub.s. (l) of s. 60 of the Code of
Civil Procedure. He also contends that the wada
itself is watan property and is not in view of sub-s. (l)
of s. 60 liable to attachment and sale as it is not a
saleable property.
Now sub-s. (l) of s. 60 makes all saleable property
liable to attachmont and sale in execution. The proviso to it "o far a.3 m:i.terial runs thus :
2 S.C.R. SUPREME COURT REPORTS
179
"Provided that the following particulars shall
not bo liable to such attachment or sale, namely :-
·~· ............................................................... .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) tools of artisans and where the judgmentdebtor is an agriculturist, his implements of husbandry
and such cattle and seed-grain as may, in the opinion
of the court be necessary to enable him to earn his
livelihood as such ...
( c) houses and other buildings (with materials
and the sites thereof and land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist and occupied by him."
I propose now to consider the question whether the
wada is saved from execution under cl. (c) of the proviso to sub-s. (1) of s. 60. In order that the clause
may apply two conditions have to be fulfilled.
First,
the person claiming benefit under it must be an agriculturist and secondly the wada must belong to and
be occupied by him.
First, then, was the appellant Appasaheb an agriculturist within the meaning of the clause ? Now the
plain meaning of the word " agriculturist " in the
present context, is a person who occupies himself with
agriculture, that is, cultivation of land for raising
crops.
Anybody who is engaged in cultivating land
for raising crops would be an agriculturist. So far
there is no difficulty. It appears however from the
reported decisions that the High Courts have expressed sharply divergent opinions on the question as to
who is an agriculturist within the meaning of the
clause. The difference however is not on the point
that an agriculturist must be one who cultivates but
as to whether the agriculturist contemplated in els. (b)
and (c) is one who cultivates with his own hands and
whether all persons who carry on agricultural operations are agriculturists within the clauses. These
differences have arisen not because any difficulty was
felt as to the meaning of the word "agriculturist", but
from the intention of the legislature to be gathered
from the other words used in the clauses. In this
appeal these authorities have been relied on by the
1960
A ppasahcb
T·uljarani Desai
v.
Balcha11dra
V ithalrao Tlwbe
Sarkar ].
z960
Appasaheb
Tuljaram Desai
v.
Balchandra
Vithalrao Thube
Sarkar ].
180
SUPREME COURT REPORTS
[1961]
parties as it suited the contention of each. It is
necessary therefore to consider the views expressed in
these cases and decide whether the word "agriculturist " is to be given its plain meaning or has to be
qualified in some way. It is of some significance to
state that by and large, the view of one High Court
has been discarded by another.
One view is that an agriculturist is a person
whose main source of Hvelihood is agriculture: see
Tirloki Prasad v. Kunj Behari Lal (1). It is said that
this is the right view for an agriculturist must be one
who is so by profession. Now the main source of
livelihood of a person may vary from time to time:
therefore at one period of time a person might be an
agriculturist but not at another. It is not reasonable
to hold that such a result was intended.
Again it
would often be difficult to decide which is the main
source of livelihood of a person. Indeed it is not quite
clear as to what is meant by main source of livelihood unless it means the livelihood producing the
largest income.
I find nothing in the clauses to warrant this view: they do not say anything about agriculture being a person's main source of livelihood in
any sense of the word " main ".