Anantalal Chakravarty vs Bibhuti Bhusan Das

Chatterji, J.

This is an appeal by a creditor from an order passed in an insolvency proceeding. The respondent Bibhuti Bhusan Das was adjudged an insolvent on 4th December 1940, and was give one year�s time to apply for his discharge. A receiver e was appointed of his properties, but it appears that the properties in his possession being raiyati holdings which could not be attached and sold under the provisions of the Chota Nagpur Tenancy Act, the receiver did not take possession of his properties or take any steps to sell them.

On 4th December 1941, the insolvent filed an application for his discharge. The present appellant, who was creditor 2, appeared and filed a petition of objection alleging, inter alia, that the insolvent had two homestead plots, namely Nos. 624 and 626, which with the house standing on plot No. 624 were liable to be sold. The insolvent, on the other hand, asserted that he being an agriculturist, his house on plot No. 624 and the other plot which was necessary for the enjoyment of his house could not be attached or sold.

The learned District Judge, upon the evidence adduced by the parties, came to the finding that the insolvent was an agriculturist and that plot No. 624 was his residential house and plot No. 626 was adjacent to it and necessary for the enjoyment of it and consequently both plots were exempt from attachment and sale. He accordingly rejected the creditor''s objection by his order dated 11th November 1942. It is from this order that this appeal has been preferred by the creditor.

The point argued by Mr. R.S. Chatterji on behalf of the appellant is that the evidence on the record does not justify the finding that the insolvent is an agriculturist within the meaning of Section 60(1)(c), Civil P.C. He relies on two Full Bench decisions, one of the Madras High Court in Lakshmayya v. Official Receiver Masulipatam AIR 1937 Mad 551 and the other of the Lahore High Court in Nihal Singh v. Siri Ram AIR 1939 Lah. 388. It has been held in these cases that an agriculturist within the meaning of Section 60 (1)(c), Civil P.C, must be a person who personally engages himself in tilling the soil and whose livelihood depends on the tilling of the soil. In both these cases, particularly the Madras case, the learned Judges referred to various decisions of different High Courts, which turned mainly on the question whether agriculture was the "sole" source of income" or "main source of income." The learned Judges held that neither of these tests was sufficient. To understand the proper significance of the word "agriculturist" in Section 60(1)(C) of the Code it will be necessary to refer to the preceding clause (b), which is in these words (omitting those that are not material to our present purpose):

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

These words indicate that an agriculturist within the meaning of the section must be a person who tills the soil and thereby earns his livelihood and is expected to have implements of husbandry, cattle and seed grain. This, however, does not necessarily mean that he must till the land with his own hands, or that he must necessarily have his own implements of husbandry. An old or otherwise disabled man, or a woman may not till the land with his or-her own hands but may do it through others such as relatives or hired labourers. Still such person may be an agriculturist, to all intents and purposes. Again, a person may be a real tiller of land without having his own implements of husbandry. At the time of cultivation he may borrow or hire such implements. In any case, however, cultivation must be his main source of living, though this will not be the sole test. All the tests indicated above must be taken together, and the matter will have to be decided with reference to the facts of each particular case.

The learned Judge did not approach the case from this point of view. The evidence on the record is not sufficient to enable us to come to a proper decision on the point. It will, therefore, be necessary to remand the case to the Court below. I would accordingly allow the appeal, set aside the order of the Court below, and remand the case to that Court for disposal according to law in the light of the observations made above. As there is no appearance on behalf of the respondent, there will be no order for costs.

Meredith J.

I agree.