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PETITIONER: SHRIMANT APPASAHEB TULJARAM DESAIAND OTHERS

       Vs.

RESPONDENT: BHALCHANDRA VITHALRAO THUBE

DATE OF JUDGMENT: 28/10/1960

BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER SARKAR, A.K. DAYAL, RAGHUBAR

CITATION:  1961 AIR  589            1961 SCR  (2) 163

ACT: 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 (b) (c).

HEADNOTE: 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  Dayal,  jj. Sarkar, J., dissenting), that the word " agriculturist "  in

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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 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.

JUDGMENT: 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  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 (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

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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 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 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 that-  the 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  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 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

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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  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 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 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

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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

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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 such. 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  "  agricul- turist " 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.

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(2) I.L.R. [1937] Mad. 777. 172 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  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. [1938] 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.

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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  pro- duce 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 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 (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. [1937] Mad. 777. (4)  (1939) I.L.R. 21 Lah. 23. (5) I.L.R. [1938] 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 Procedure. Sub-section  (1)  of s. 60 of the Code  of  Civil  Procedure makes   all  saleable  property,  movable   and   immovable,

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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 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 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).

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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  cultiva- tion  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.  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 23 178 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

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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 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 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 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 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

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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 purposes. 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 founded. 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

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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 alone. 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. [1937] 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. [1947] 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 intended. 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  neces- sary 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

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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. [1937] 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  seed- grain  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. [1937] 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

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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  itself. 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  seed- grain  than  he  needs  for  his  livelihood.   It   clearly contemplates a rich and large scale agriculturist. 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 besides agriculture. 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

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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 rightfully  constructed. 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

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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 appellant. 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.                                         Appeal dismissed. 189