Shrimant Appasaheb Tuljaram Desai&
Ors Vs. Bhalchandra Vithalrao Thube  INSC 183 (28 October 1960)
IMAM, SYED JAFFER SARKAR, A.K.
CITATION: 1961 AIR 589 1961 SCR (2) 163
Watan Property--Building on watan land-constructions
subsequent to creation of watan-Building, whether watan property--Building
belonging to an agriculturist-Liability for attachment and sale-"
Agriculturist "meaning of Bombay Hereditary Offices Act, 1874 (Bom 3 of
1874), s. 4 Code of Civil Procedure, 1908 (Act 5 of 1908), s. 60(1), proviso
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 watan 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. (i) 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
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 164 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 law reviewed.
Per Sarkar, J.-(1) On the plain meaning of
the word agriculturist " in cls. (b) and (c) of the proviso to sub-s. (1)
of s. 60 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 he 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
(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 judgment 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
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 (1) whether the Wada (house) ordered to be attached by the executing
court is Watan property, and if so, can 165 it be attached in execution of a
decree ? (2) If the Wada is not Watan property, is it exempted from attachment
by virtue of the provisions of s. 60 of the Code of Civil Procedure ? It is
necessary now to state a few facts. One Rao Ba.
Vithalrao Laxmanrao Thube, hereinafter
referred to as Laxmanrao, brought Civil Suit No. 313 of 1943 against
Tuljaramarao Narainrao 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, Laxmanrao filed 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 objected 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 whether 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 Division 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 certificate that the case was a fit one for appeal to this
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 Sanad
there is no mention of any Wada existing on the Inam land. According to the
executing court the Wada 166 appears to have been built after the grant. It
appears thatthe opinion of the Division Bench of the High Court was also to the
same effect. There is no finding of Shah, J., to the contrary. We must,
therefore, proceed on the basis that the Wada in question was not the subject
of the original grant. This Wada came to be constructed on the land in 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 Wada 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
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 Watan 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 167
built on land must be regarded as immoveable property 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 " in s. 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 Watan land could be said to be held by him for the performance of
his duties of a hereditary office. The learned Judges of 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 Nandi were
undoubtedly held as remuneration for the performance of the duty appertaining
to an hereditary office and therefore were Watan 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 168 that it was 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 question does not come within the definition of Watan property as defined in
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
Nandi. 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
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 land. On the other hand, it was
contended on behalf of the respondent that 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 11 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, 169 however, it does not necessarily follow
that the building so constructed became Watan property within the meaning of
the Act. If the Government could have built a construction on the land 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 agriculturist 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 170 of the members of
his family tills the land and not with the aid of employed labour. On behalf of
the respondent, however, it was contended that the word "agriculturist
" in el. (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 of cl. (b) as well in order to under. stand what the
Code intended the word " agriculturist " to mean in cl. (c). On a
proper construction of el. (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 Watan 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
specifying 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 livelihood as
171 interpreted by various High Courts in
India. Reference to only some of these cases need be made. In the case of
Hanmantrao Annarao v. Dhruvaraj Pandurangrao (1) it was held by the Bombay High
Court that the word " agriculturist " in cls. (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 tilling 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.
(2) I.L.R.  Mad. 777.
172 derive some income there from 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 Boil really dependent for his living on tilling the soil and unable to
maintain himself otherwise." in the case of Tirloki Prasad v. Kunj 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 (2) 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 (3) the conclusions 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 means 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 (1) A.I.R. 1935 All. 448. (2) A.I.R. 1958 All. 561.
(3) I.L.R.  Nag. 461.
173 the land except that he owns it and
people work for him, he may or may not be an agriculturist according to
circumstances." In the case of Nihal Singh v. Siri Ram (1) the Lahore High
Court held that the word "agriculturist " means a person who
personally engages in the occupation of tilling the soil and derives his
livelihood from that 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 the
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 he 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
servants. After his death his son appellant Appasaheb became the owner.
Appasaheb increased the acreage of the cultivation of the home farm to about 60
acres. He has 14 bullocks and 10 (1) (1939) I.L.R. 21 Lah.23.
(2) (1944) I.L.R. 23 Pat. 348.
174 or 12 servants and the income is Rs.
30,000 to Rs. 35,000 a year. The cattle and the produce are kept in the Wada
where he also resides. This witness also stated that the appellant Appasaheb
had inams in 4 villages. Furthermore, in 10 or 12 villages he owns lands and he
gets about Rs.
35,000 to Rs. 40,000 from his lands. The said
Appasabeb 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
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 (2) 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 an 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 Receiver of Kistna (3), of the Lahore High Court in
the case of Nihar Singh v. Siri Ram and Others (4) and of the Nagpur High Court
in the case of Gowardhandas v. Mohanlal (5) 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.
(2) A.I.R. 1958 All. 561 (3) I.L.R. 
(4) (1939) I.L.R. 21 Lah. 23.
(5) I.L.R.  Nag. 461.
175 on the land was occupied by him as an
agriculturist for the purpose 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
Sub-section (1) of s. 60 of the Code of Civil
Procedure 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 against him. In this subjection 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 an 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 meanings of the word 176 " 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 livelihood 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 the 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
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 el. (c) apparently is that an agriculturist
should not be left without a roof over his head. In other words, the
Legislature intended by cls. (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 177 husbandry
and tethering of cattle employed in cultivating the land. It seems to us, on
the evidence of the appellants' own witness, that they do not themselves till
the land of the home farm which is done by a large number of labourers employed
by them.' Tuljaramarao did not himself cultivate the land. He merely supervised
the work of cultivation by the labourers. The witness, however, did state that
sometimes Appasaheb and his brother worked personally 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 to maintain himself otherwise. In the present case it is quite obvious
that even if the appellants can be described as agriculturists 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 Appasaheb 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
or 12 other villages and his income from the lands was Rs. 35,000 to Rs.
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 23 178 Appasaheb is really dependent for his
maintenance by tilling the soil and unable to maintain himself other.
Wise. 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.
SARKAP. 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 Thube 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 stands 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. (1) 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. (1) of s. 60 liable to attachment and
sale as it is not a saleable property.
Now sub-s. (1) of s. 60 makes all saleable
property ,liable to attachment and sale in execution. The proviso to it so far
as material runs thus :
"Provided that the following particulars
shall not be liable to such attachment or sale, namely:-(b) 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 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 el. (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 difference however is not on the point
that an agriculturist must be one who cultivates but as to whether the
agriculturist contemplated in cls. (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 180 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 livelihood 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
ail 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 ".
Furthermore if this view is accepted, a rich
farmer who has income from other sources, which income is smaller than his
income from agriculture, would be protected by these clauses while a poor
peasant who makes a slightly bigger income, say as a day labourer, than he does
from agriculture, would be deprived of the protection. I am unable to accept a
view which produces such a result. I find no reason why a person who has a
profession besides agriculture, should be protected if agriculture is his main
profession and not otherwise, particularly when what is protected is
agricultural implements, cattle, seed-grain and house used for agricultural
Another view taken is that the agriculturist
must be one whose sole means of livelihood is cultivation of land but excluding
persons carrying on farming in a large way:
Muthuvenkatarama Reddiar v. The Official 181
Receiver of South Arcot (1). This view has been discarded in a later full bench
decision of the same High Court in Parvataneni Lakshmayya v. The Official
Receiver of Kistna (2) to which reference will be made later. For myself, I
find nothing in the clauses to justify this view. Take the case of a small
cultivator who, in order to maintain himself, takes up the other work and so
supplements his income. There is nothing in the clauses to indicate that such a
cultivator should be deprived of the protection. It is well known that
agricultural operations do not occupy a person for the whole year and as the
income from agriculture is for quite a large number not enough to meet their
needs, many small cultivators have to supplement their in. come by other work
when they are not engaged in the fields. There is nothing in the clauses to
lead to the view that these persons were not intended to get the protection. It
seems to me manifest that there is no reason to deprive these persons of the
benefit of the protection. Neither do I find any words in the clauses to
support the view that big farmers are not intended to get the protection. This
aspect of the matter will be discussed further later. The view taken in
Muthuvenkatarama Reddiar's case (1) does not therefore appear to me to be well
In Nihal Singh v. Siri Ram (3 ) a full bench
of the Lahore High Court held that an agriculturist must be one who personally
tills and not through servants and does not maintain himself from other sources
of income. The reason given to support this view appears to be as follows: The
word agriculturist must mean the same thing in cls. (b) and (c). In cl. (b) it
is in juxtaposition with the word artisan. An artisan is one who himself
practices a handicraft and furthermore he must practice the handicraft not as a
hobby but as a living. So in cl. (b) an agriculturist must be one who
personally tills and not through servants and maintains himself by agriculture
I am not convinced by this reasoning. If the
word agriculturist means one who must till with his own (1) (1925) I.L.R. 49
Mad. 227. (2) I.L.R.  Mad. 777.
(3) (1939) I.L.R. 21 Lah. 23.
182 hands, then it is wholly unnecessary to
rely on the juxtaposition of the words artisan and agriculturist in cl.
(b) for reaching the conclusion that the
Lahore High Court did. It is only if the word " agriculturist " as
ordinarily understood includes one who carries on agricultural operations
through persons employed by him that it becomes necessary to rely on the
reasoning based on the juxtaposition of the two words in the clause. But I am
wholly unable to appreciate the logic of this reasoning.
Assume that an artisan must be one who works
with his own hands. It does not follow that an agriculturist if it does not
mean exclusively one who tills with his own hands, must be one who tills only
with his own hands when that word is used in juxtaposition with the word
artisan. Such juxtaposition would afford no reason for departing from the
normal meaning of the word agriculturist.
In Hanmantrao v. Dhruvraj (1) also it was
said that an agriculturist within the meaning of the clauses is one who tills
with his own hands. The reason there put is that since in el. (b) reference is
made to implements of husbandry, cattle and seed-grain necessary for earning a
livelihood as a cultivator, therefore primafacie, only an agriculturist who
cultivates with his own hands is meant.
Again I am unable to follow the reasoning for
a person who lives on cultivation carried on by hired labour would also require
implements of husbandry, cattle and seed-grain.
An agriculturist, as I have said, is one who
carries on cultivation. Now one may carry on cultivation himself or through
hired labour. In the latter case also he would be an agriculturist within the
plain meaning of that word.
Then it seems to me that if we exclude from
the clause an agriculturist who does not till with his own hands, a most
unreasonable situation would ensue. Old and incapacitated small farmers and
most women would have to be denied the protection of the clauses. Again, it may
so happen that a person carrying on agricultural operations himself becomes
unable to do so through ill health for two or three years when he gets the
cultivation done (1) I.L.R.  Bom. 687.
183 by employing labour and resumes
cultivation when he regains his health. If the view now under discussion is
correct, then such a person would cease to be an agriculturist during the
period of ill health though before and after that period he would be an
agriculturist. It does not seem to me that such results could have been
I come now to the view taken in Parvataneni
Lakshmayya v. The Official Receiver of Kistna (1) earlier referred to. It was
there said, "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 seedgrain 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 tilling the soil and unable
to maintain him otherwise." I am unable to agree with this view. It leads
to obvious anomalies. Take the case of a person whose sole means of living is
agriculture. Suppose he carries on agriculture on a large scale and makes a big
income out of it. He would still be dependent on agriculture for his living and
unable to maintain himself otherwise. He would be an agriculturist for the
purpose of the clauses within the meaning of Parvataneni's case (1), for that
case does not say that a large scale farmer is not an agriculturist. Such a
person would be entitled to protection under the clauses even though his income
from agriculture is, say Rs. 25,000 a year. Now take the case of a small farmer
whose income from agriculture is Rs. 1,000 a year but who also makes Rs. 1,500
from other sources and is able to maintain himself from the latter income.
According to Parvataneni's case (1) such a person would not be an agriculturist
for the purpose of the clauses and would not be entitled to any protection
under them. I find (1) I.L.R.  Mad. 777. 184 it impossible that the
legislature could have intended such a result.
Then again I find nothing in the language of
the clauses clearly leading to the view accepted in Parvataneni's 'case (1)
however. The only reference to a living is in cl. (b) and it is to be found in
the words " such cattle and seedgrain as may...... be necessary to enable
him to earn his living as such ", that is, as an agriculturist. I do not
think that these words lead to the conclusion that the agriculturist
contemplated must depend for his living on agriculture. They are intended to
define the limit of the protection which an agriculturist is entitled to for
his cattle and seed-grain. These words must therefore mean such cattle and
seed-grain as are necessary for the agriculturist to earn his livelihood from
agriculture if that was his sole means of livelihood. If that were not so we
would have to hold that this part of the clause contemplated an agriculturist
whose livelihood depended on agriculture alone and who had no other source of
income. Obviously where a person earned his livelihood from agriculture and
another source, it could not be decided what cattle and seed-grain he would
require to earn his living as an agriculturist for the simple reason that he
did not earn his living as an agriculturist only. Parvataneni's case (1)
however accepts the view that a person may be an agriculturist within the
meaning of the clauses though he may have besides agriculture another source of
income. And with that view, for the reasons earlier stated, I entirely agree.
There seems to me to be other reasons also
why the view taken in Parvataneni's case (1) is not the correct one. So far as
the tools of an artisan are concerned, cl. (b) does not limit the protection to
such of them as are necessary to enable him to earn his living as an artisan.
Therefore, there is no reason to think that an artisan is one who must be
dependent for his living on the handicraft practised by him. Likewise all
implements of husbandry of an agriculturist are exempt from attachment and
sale. The word " such " occurring before the words I cattle and
seed-grain in cl. (b) (1) I.L.R.  Mad. 777.
185 shows that these are protected only to
the extent indicated and that there is no limit to the protection afforded to
the implements of husbandry of an agriculturist. If this is the correct reading
of the clause, as I think it is, then it seems to me impossible to say that an
agriculturist whose implements of husbandry are intended to be protected must
be one who could not maintain himself apart from agriculture.
Likewise, there is nothing in cl. (c) to
indicate that the agriculturist there mentioned must be one who depends for his
living on agriculture:
There remains one other view to consider. It
has been said that the agriculturist must be a very small farmer;
Muthuvenkatarama Reddiar v. The Official
Receiver of South Arcot (1). For this qualification for an agriculturist again,
I find no warrant in the clauses or indeed anywhere else in s. 60. The various
clauses in the proviso to s. 60, sub-sec. (1) exempting diverse things from
attachment and sale are no doubt based on public policy, but the consideration
of public policy in each case appears to me to be different. I find it
impossible to say that the central idea was to protect the poor or to prevent a
person being left destitute. Thus el. (a) protects the necessary wearing
apparel, cooking vessels beds and bedding of the judgment.
debtor. Even a very rich judgment debtor is
entitled to protection under this clause. Clause (d) protects books of account.
Here again it is not a poor man alone that is contemplated nor would
deprivation of books of account leave one destitute in all cases. Clause (g)
protects political pensions which may be and often are of substantial amounts.
Clause (h) protects wages of labourers and
domestic servants. This clause of course deals with a poor man and is intended
to relieve against poverty. Since however, there is no one specific central
idea running through all the clauses, each clause has to be construed by
Coming then to cls. (b) and (c), I find no
justification for the view that they deal only with poor people or are intended
to protect against destitution. Thus there (1) (1925) I.L.R. 49 Mad. 227.
24 186 is nothing in el. (b) to indicate that
the tools of only poor artisans are to be protected. The same thing can be said
of an agriculturist. The fact that his cattle and seed-grain are protected to
the extent necessary to enable him to earn his livelihood does not lead to the
view that he must be a poor agriculturist. On the contrary, the clause
contemplates an agriculturist who has more cattle and seedgrain than he needs
for his livelihood. It clearly contemplates a rich and large scale
Therefore it seems to me that there is no
warrant for imposing any qualification on the plain meaning of the word I
agriculturist' in cls. (b) and (c). In my view, an agriculturist contemplated
by the clauses is any person who occupies himself with agriculture. This is the
view taken in Gowardhandas v. Mohan Lal (1) and with it I agree. A person
occupying himself with agriculture would be an agriculturist though he does not
cultivate with his own hands and carries on agriculture in a very large scale.
He would still be an agriculturist though he has other means of livelihood
I come now to the facts of this case. The
question is, is Appasaheb such an agriculturist as I have indicated ? The
evidence clearly shows that he is. It can be said to have been established
beyond doubt and not questioned in the Courts below, that Appasaheb was
carrying on agricultural operations under his supervision through labour
employed by him and with his own cattle and agricultural implements on fifty to
sixty acres of land. The evidence also establishes that Appasaheb's income from
agriculture came to Rs. 30,000 to Rs. 35,000 per year. It appears that he was in
receipt of cash allowances of Rs. 700 to Rs. 800 per year in respect of the
watan and Rs. 4,000 to Rs. 5,000 per year from village officers of the watan
villages, neither of which was income from agriculture. These facts in my view
make Appasaheb an agriculturist for the purpose of cls. (b) and (c) though it
may be that he was not dependent for his living upon agriculture and was a
large scale farmer who did not 187 till with his own hands. I wish however to
state that there is uncontradicted testimony that Appasaheb personally took
part in the agricultural operations.
Now cl. (c) protects from attachment and sale
houses and other buildings with the sites thereof and land immediately
appurtenant thereto and necessary for their enjoyment, belonging to an agriculturist
and occupied by him. I think it is a fair reading of this clause to say that
the houses, buildings and lands must be occupied by the agriculturist for the
purpose of agriculture for the object of these clauses is to protect an
agriculturist only so far as is necessary for his agricultural operations. If
an agriculturist occupied a house, say as a holiday resort, there would be no
reason to protect that house from attachment and sale.
The question then arises whether Appasaheb
occupied the wada for the purposes of his agricultural operations. I think the
evidence makes it perfectly clear that he did so. It shows that the larger part
of the wada was used for storing crops, keeping agricultural implements,
residence of the farm servants and tethering cattle used for agriculture.
Appasaheb and his family lived in a part of
the wada but that also was clearly occupation for purposes of agriculture, for
it is from there that he supervised the agricultural operations.
I have therefore come to the conclusion that
the wada is saved from attachment and sale in execution by cl. (c) of the
proviso to sub-s. (1) of s. 60 of the Code of Civil Procedure.
The other contention of the appellants does
not seem to me to be sustainable. It is said that the maxim accession credit
principali applies and the wada standing on watan land has acquired the
character of watan as an accession to it. It is not in dispute now that the
wada was not in existence when the watan was first created but had been built
subsequently by one of the watandars. It is also said that the grant of the
watan carried full right of ownership in the subject of the grant ; that the
grantee had the right to make such use of the land granted as any owner of it
could have 188 done. So it was said that the wada had been put up rightfully by
the watandar and became part of the watan as an accession to it.
There is no doubt that the wada was
It may be that it became on such construction
a part of the land on which it stands and assumed the character of immovable
property. But I am unable to agree that it thereupon assumed the inalienable
character of watan property and was therefore hot liable to attachment and sale
in execution. I do not think that the maxim accessio cedit principali applies
in giving the wada put up on watan the character of a watan. Watan is a
creation by government grant. It is inalienable under a special Act. The
inalienable character attaches under the Act only to the property granted by
the government. This peculiar character cannot be extended to other property by
the application of the maxim. Therefore it seems to me that the wada is not
inalienable though it stands on land which is inalienable as a government grant
under a special Act. I would for this reason reject this contention of the
As however in my view, the wada is protected
from attachment and sale in execution under cl. (c) to the proviso to sub-s. (1)
of s. 60 of the Code of Civil Procedure, I would allow the appeal.
BY COURT: In view of the majority Judgment,
the appeal is dismissed with costs.