Gollareddigari Golla Reddy vs Mallepalli Adinarayana Reddy

C.V.N. Sastri, J.—The short but interesting question which arises for decision in this C.R.P. is whether land held under an agreement of sale by the wife of the judgment-debtor can be computed in his holding to decide whether he is a small farmer within the meaning of A.P.Act 45 of 1987 read with A.P. Act 7 of 1977. Before considering the said question, it is necessrary to briefly state the facts of the case.

The respondent herein obtained a simple money decree against the petitioner herein in O.S.No. 94 of 1986 on the file of the court of the Principal District Munsif, Kadiri. In execution of the said decree, the respondent filed E.P.No. 165 of 1987 for arrest and detention of the petitioner/judgment-debtor in civil prison. The petitioner /judgment-debtor filed a counter opposing the said E.P. inter alia on the ground that he is a small farmer entitled to the protection of A.P.Act 45 of 1987 readwith A.P.Act 7 of 1977 and hence the decree debt must be deemed to be wholly discharged by operation of the provisions of the said Act. The decree-holder/respondent disputed the claim of the judgment-debtor that he is a small farmer. Both sides have let in oral and documentary evidence. On a consideration of the evidence, the executing Court negatived the claim of the judgment-debtor that he is small farmer and order his arrest and detention in civil prison by its order dated 4-6-1990. Questioning the said order, the judgment-debtor has filed the present civil revision petition.

The lower Court found that the debt in question was incurred by the judgment-debtor for the purpose of the joint family consisting of himself, his wife and children and mother. In view of the definition of ''family'' contained in Section 3 (1) of Act 7 of 1977, the lower Court held that the shares of the judgment-debtor''s minor children and his wife have to be included in computing the holding of the judgment-debtor. The lower court found that the father of the judgment-debtor owned Acs.6-00 of dry land out of which the judgment-debtor is entitled to Acs. 3-00 and his mother is entitled to the remaining Acs.3-00. Out of the land of Acs.3-00 falling to the judgment-debtor''s share, the lower Court excluded his major son''s share from computation and held that the other family members of the judgment-debtor including himself are entitled to Acs.2-40 cents of dry land. In addition to the said land, the lower Court found that the wife of the judgment-debtor, who was examined as R.W.2, purchased an extent of Acs. 6-98 cents of dry land under an agreement of sale dated 11-4-1990, marked as Ex.X.1 and that they are enjoying the same. Adding the said extent of Acs.6-98 cents purchased under Ex.X.1 to the extent of Acs. 2.40 cents, the lower Court came to the conclusion that the family unit of the judgment-debtor is holding a total extent of Acs.9-38 cents of dry land which is more than the limit prescribed under the Act and as such the judgment-debtor is not a ''small farmer'' entitled to the protection of the said Act. At one place in its order, the lower Court, however, observed that since the land purchased under Ex.X.1 is in the possession of one Polepalli Narayanaswamy, it is not helpful to the case of the decree-holder. This observation, however, appears to be a mistake as the said land, which is allegedly in possession of Polepalli Narayanaswamy is of an extent of Acs.2-80 cents and it is referable to Ex. A.1 but not Ex.X.1. Further R.W.2 in her evidence has dearly admitted that she is in possession and employment of the land purchased by her under Ex.X.1.

The learned counsel appearing for the petitioner/judgment-debtor has assailed the correctness of the order of the lower Court contending firstly that the assumption of the lower Court that the decree debt in question is a family debt is without any basis and secondly that the land possessed by the judgment debtor''s wife under an agreement of sale cannot, in any case, be taken into consideration at all as a mere agreement of sale does not confer any title. In support of his contentions, the learned counsel for the petitioner has relied upon the following decisions: G. Somaludora v. R. Chantabbayi Alias Tamma Rao 1987 (2) ALT 112 , R. Masthanaiah v. Ch. Veerahh 1987(1) ALT 166 : 1987 (1) APLJ 203, R. Simachalam v. P. Ramayamma 1984 (2) ALT 79 : 1985 (3) APLJ 325 and the judgment in C.R.P. No. 1813 of 1989 dated 24-10-1989.

On the other hand, the learned counsel for the respondent/decree-holder has tried to sustain the order of the lower Court by contending that the debt in question is a family debt and that the land held under an agreement of sale has to be computed for the purpose of deciding whether the judgment debtor is a small farmer or not. The learned counsel for the respondent has cited the following decisions in support of his arguments:

Dasam China Pappayya Raju Vs. Sripada Ramachandra Prabhakara Rao, , C.C. Vemanari v. P.R.K. Chetty 1979 (1) ALT 38 : 1979 (1) APLJ 392, Hariram v. Babu Gokul Prasad, 1991 (Suppl) II SCC 608, and Buddhan Singh and Another Vs. Nabi Bux and Another, .

For a proper appreciation of the questions in controversy, it is useful to refer to the relevant provisions of the Andhra Pradesh Agricultural Indebtedness (Relief) Act. 1977. This Act was enacted to provide relief from indebtedness to agricultural labourers, rural artisans and small farmers in the State of Andhra Pradesh and for matters connected therewith and it came into force on the 29th of December, 1976. According to Sub-Section (1) of Section 4 of the Act, notwithstanding any other law, for the time being in force or any contract or other instrument having the force of law and save as otherwise provided in this Act, with effect on and from the commencement of this Act, every debt, including interest, if any, owing to any creditor by an agricultural labourer, a rural artisan or a small farmer shall be deemed to be wholly discharged. According to Sub-Section (2) (a) of Section 4, no civil Court shall entertain any suit or other proceeding against the debtor for the recovery of any amount of the debt, including interest, if any, which is deemed to be discharged under Sub-Section (1). Clause (b) of Sub-Section (2) of Section 4 provides that all suits and other proceedings including appeals, revisions, attachments or execution proceedings pending at the commencement of this Act against any debtor for the recovery of any such debt, including interest, if any, shall abate. Clause (c) of Sub-Section (2) of Section 4 provides that every debtor undergoing detention in a civil prison in execution of any decree for money passed against him by a Civil Court in respect of any such debt, including interest, if any, shall be released. Section 3 (i) of the Act defines ''debt'' as including" any liability owing to a creditor in cash or in kind, whether secured or unsecured, payable under a decree or order of a civil Court or otherwise and subsisting at the commencement of this Act, but does not include....." Section 3 (1) defines ''family'' in relation to a person to mean the individual, the wife or husband, as the case may be, of such individual and their unmarried minor children. According to Section 3 (p), ''Person'' means an individual or a family. According to Section 3 (t) , ''small farmer'' means a person whose principal means of livelihood is income derived from agricultural land and who holds and personally cultivates, or who cultivates as a tenant or share cropper or mortgagee with possession, agricultural land which does not exceed in extent, -(i) in the case of persons other than the members of the Scheduled Tribes, one hectare, if it is wet, or two hectares, if it is dry; (ii) in the case of the members of the Scheduled Tribes, two hectares, if it is wet, or four hectares, if it is dry; but does not include any person whose annual household income, other than from agriculture exceeds one thousand and two hundred rupees in any two years within three years immediately preceding the commencement of this Act. According to explanation to Section 3 (t) of the Act, for the purpose of computing the extent of land under this clause, one hectare of wet land shall be deemed to be equal to two hectares of dry land. The term ''holds'' is not defined anywhere in the Act. As already noticed, A.P. Act 7 of 1977 covers only the debts which were in existence on the date on which the said Act came into force i.e., on 29-12-1976. To cover subsequent debts which are incurred subsequent to 29-12-1976,A.P.Act 45of l987was enacted extending the provisions of A.P. Act 7 of 1977 to all debts incurred between 29-12-1976 and the date of commencement of Act 45 of 1987. All the definitions contained in A.P.Act 7 of 1977 apply to the debts covered by A.P. Act 45 of 1987 also.

I shall now proceed to consider the first contention of the learned counsel for the petitioner that the finding of the lower Court that the debt in question is a family debt and as such the lands held by all the members of the family unit of the judgment-debtor have to be taken into consideration is without any basis and is unsustainable. In D. Chinnapapaiah v. S. Ramachandra (4 supra), a Full Bench of this Court, on a consideration of the definition of "small farmer" and ''family'' in the Act, held that where an individual claims to be a small farmer, the land which he alone holds and personally cultivates should be taken into consideration and the lands belonging to the husband or the wife, as the case may be, and that of the minor children should not be taken into consideration. It was further held in the said decision that when a debt is owed by a joint family, it has to split up into different units of family as defined in the Act and it has to be considered whether each unit is a small farmer or not. When a debt is owed by a joint family, each unit thereof consisting of an individual, wife or husband, as the case may be, of such individual and their unmarried minor children should be taken as judgment-debtor within the meaning of the Act in respect of each share of the debt owed by the family. In the instant case the decree was obtained only against the judgment-debtor and the other members of his family are not impleaded as parties to the suit. Neither the pleadings nor the judgment in the suit are placed on record. In the execution petition filed by him, the decree-holder has not taken the plea that the decree debt in question is a family debt which was incurred by the judgment-debtor for the purpose of his family. In the counter affidavit filed by him to the E.P., the judgment debtor has taken the plea that he is an agriculturist holding and cultivating less than two hectares of dry land and his principal means of livelihood is agriculture and he has no other source of income. Hence he claimed that he is a small farmer within the ambit of Act 45 of 1987. The decree-holder has not filed any rejoinder or reply to this plea taken by the judgment-debtor. In the evidence adduced on behalf of the decree-holder before the lower Court also, there is no evidence to the effect that the debt in question is a family debt. There is, therefore, no material on record to come to the conclusion that it is a family debt. The lower Court has merely assumed that it is a family debt without any basis. According to Section 13 of the Act, in any suit or proceeding, the burden of proving that the debtor is not entitled to the protection of this Act shall, notwithstanding anything in any law for the time being in force, lie on the creditor. It is, no doubt, true that interpreting this Section this Court held that the initial onus to prove that he is a small farmer within the meaning of the Act lies on the debtor before the statutory burden of proof is shifted to the creditor. In the instant case, in my view, the judgment-debtor has discharged that initial burden which rests on him. When both sides have adduced evidence, the question of burden of proof loses much of its significance. As already stated above, there is absolutely no material on record in the instant case to hold that the debt in question is a family debt. It must, therefore, be held that the finding of the lower Court on this question is without any basis and as such it is clearly unsustainable. If the debt is treated as the individual debt of the judgment-debtor as it should be, the land held by him alone should be taken into consideration and the land held by the other members of his family unit i.e., the wife and unmarried minor children cannot be taken into consideration at all. It, therefore, follows that the land held by the judgment-debtor''s wife under the agreement of sale Ex.X.1 cannot be taken into consideration at all nor can it be computed in the holding of the judgment-debtor in deciding whether he is a small farmer or not within the meaning of the Act. Even according to the finding of the lower Court, if the land held by the wife of the judgment-debtor is excluded from consideration, he will be a small farmer entitled to the protection of the Act as his share in the joint family property is well below the limit prescribed by the Act. Accordingly it must be held that the judgment-debtor is entitled to the benefit of the Act and he is not liable to be arrested in execution of the decree.

In the view I have taken on the first question, it may not be necessary to go into the further question whether land held under an agreement of sale can be taken into consideration in computing the holding of the person claiming to be a small farmer. All the same I shall deal with this question also since it has been raised and the learned counsel for both parties have submitted their arguments on the same at some length. This question, in my view, turns essentially on the definition of small farmer'' contained in Section 3 (t) of the Act which has already been noticed above. According to the said definition, the following conditions have to be fulfilled in order that a person may be a ''small farmer''.

(1) His primary means of livelihood must be income derived from agricultural land;

(2) He must hold and personally cultivate agricultural land which does not exceed the limits mentioned in the Section.

or (3) He should cultivate as a tenant or share-cropper or mortgagee with possession, agricultural land not exceeding such extent.

The word ''hold'' has not been defined in the Act But it has been considered and interpreted in a number of judgments. In Hariram v. Babu Gokul Prasad (6 supra) the Supreme Court while dealing with Section 185 (1) of the Madhya Pradesh Land Revenue Code of 1959, held that the dictionary meaning of ''hold'' must be taken into consideration where it is not defined in the Act The Supreme Court further held in the said judgment that the word ''holds'' is not a word of art It has to be understood in its ordinary normal meaning. According to Oxford English Dictionary it means, to possess, to be owner or holder or tenant of. The meaning indicates that possession must be backed with some right or title. Webster''s New 20th Century Dictionary says that in legal parlance the word ''hold'' means, to possess by legal title. In D. China Papaiah v. S. Ramachandra (4 supra), a Full Bench of this Court held that the expression lurid'' in the context must be interpreted as equivalent to ''own'' and approved the judgment of the Division Bench in S. Lakshmana Rao v. D. Chimpapayya Raju 1980 (1) ALT 466 : AIR 1980 A.P. 191 wherein it was held that the expression ''holds'' must have been deliberately used by the legislature to indicate " holding in his own right and not mere physical possession irrespective of the question as to how that possession is obtained by the person concerned." The Full Bench, however, observed that "The ownership may not be complete ownership but there must be an element of ownership. For instance, a person with a life estate or a vested remainder would also be held to hold the property though he may not have the complete ownership of the land in question." Relying upon the said observations of the Full Bench, the learned counsel for the respondent has contended that possession of land under an agreement of sale also satisfies the definition of ''hold'' within the meaning of Section 3 (t) as interpreted by the aforesaid Full Bench Decision. The said Full Bench Decision was subsequently considered by a larger Bench in P. Masthanaiah v. Ch. Veeraiah (2 supra). The larger Bench agreed with the view expressed by the earlier Full Bench that the expression ''hold'' having regard to the context, must be interpreted as equivalent to ''own''. The larger Bench, however, disagreed with the view of the Full Bench that the Word ''and'' occurring between the expressions'' who holds'' and ''personally cultivates" should be read as ''or'' and held that it should be read only as ''and'' but not as ''or''. On an analysis of the definition of ''small farmer'' contained in 8. 1980 (1) ALT 466 : AIR 1980 A.P. 191. Section 3 (t) of the Act, the larger Bench in R. Masthanaiah v. Ch. Veeraiah (2 supra) held that four categories of persons can be called as ''small farmers'', viz., (1) Person who holds and personally cultivates agricultural land, (2) Person who does not hold an agricultural land but merely cultivates it as a tenant; (3) Person who does not hold agricultural land but merely cultivates it as a share-cropper and (4) Person who does not hold (own) agricultural land but cultivates it as a mortgagee with possession-provided all of them are within the limits specified in the definition. The larger Bench further held in para 12 of its judgment that, "We cannot enlarge the categories of persons by creating a new category for extending the benefit of the Act." It, therefore, follows from the said judgment of the larger Bench that a person in possession of agricultural land under an agreement of sale cannot be said to be a small farmer entitled to the protection of the Act. If land held under a mere agreement of sale cannot be taken into consideration for extending the benefit of the Act to a person, so also it cannot be taken into consideration to deny the protection of the Act to a person if he is otherwise a small farmer.

In view of the authoritative pronouncement of the larger Bench in P. Masthanaiah v. Ch. Veeraiah (2 supra) it is not possible to accept the submission of the learned counsel for the respondent that possession of land under an agreement of sale amounts to holding the land within the meaning of the definition in Section 3 (t) of the Act. It is well settled that a mere agreement of sale does not confer title or ownership in the land to the agreement-holder though Section 53A of the Transfer of property Act provides a shield protecting his possession.

Having regard to the definition of ''small farmer'' contained in Section 3 (t) of the Act, land possessed under an agreement of sale cannot be taken into consideration for deciding whether a person is a small farmer or not. In G. Somaludora v. R.s. Chantabbayi Alias Tatnma Rao (1 supra) (C.R.P. No. 1138 of 198b and S.A.No. 302 of 1986 dated 27-8-1987), the question which arose for consideration was whether the lands covered by an agreement of sale have to be excluded for the purpose of computing the holding of the debtor claiming to be a small farmer within the meaning of Act 7 of 1977. My learned Brother Justice S.S.M. Quadri, following the larger Bench Judgment in R. Masthanaiah v. Ch. Veeraiah (2 supra) held that by merely entering into an agreement for ale of land, the debtor does not cease to hold the land as the property in the lands does not pass to the intending purchasers and, therefore, in computing the holding of the debtor claiming to be a small farmer within the meaning of the Act lands which are subject matter of the agreement for sale cannot be excluded. In State of Andhra Pradesh Vs. Mohd. Ashrafuddin, the Supreme Court, while interpreting the definition of ''holding'' contained in Section3 (i) of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act 1 of 1973 held that the land covered by an agreement for sale is liable to be included in the holdings of bom the vendor and the vendee. The said decision, however, has no relevance for the purpose of this case as the definition of the word ''holding'' in the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act cannot be imported or read into the provisions of the A.P. Agriculturists Indebtedness Relief Act, 1977 with which we are concerned. In C. C. Vemanari V. P.R.K. Chetty (5 supra), it was held that the expression holds'' should be understood as holding in one''s own right and mere physical possession without any semblance of right is not sufficient and that it will not be correct to import the definition of the word ''holding'' contained in Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act into A.P.Act 7 of 1977.

For the foregoing reasons, I hold that the land covered by the agreement of sale Ex.X.1 in favour of the wife of the judgment-debtor cannot be taken into consideration for holding that the judgment-debtor is not a small farmer entitled to the protection of the A.P. Act 45 of 1987. Accordingly the C.R.P. is allowed, the order of the lower Court is set aside and the E.P. is dismissed. No order as to costs.