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Judgment
Devadoss, J.—The appellants were adjudicated insolvents on their own petition in 1922. They applied to the District Court on 24th July,
1924, for a declaration that the two items of property, a terraced house and a cattle-shed, did not vest in the Official Receiver. The District Judge
dismissed their petition, and they have preferred this appeal.
The contention of the appellants is that they are agriculturists and the two items which are buildings which they occupied are exempt from the
operation of the Insolvency Law by reason of Section 28, Clause 5, of the Provincial Insolvency Act. The appellants are large landed proprietors
owning about 300 acres of land worth nearly a lakh and their debts amounted to Rs. 1,35,000 and odd. The two items are valued by the
appellants themselves at Rs. 6,000 and Rs. 1,000 respectively. u/s 28, Clause 5 all properties which are exempt by reason of Section 60 of the
CPC or by any other law from liability to attachment and sale in execution of a decree do not vest in the Official Receiver and are therefore not
liable to be sold to satisfy the claims of the creditors. The question for determination is whether the two buildings come within Section 60, Clause
(c) of the Code of Civil Procedure. Clause (c) is in these terms:
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.
In order to claim exemption u/s 60, Clause (c), two points should be found in favour of the appellants, (1) the appellants are agriculturists within
the meaning of Clause (c); and (2) the house and cattle-shed are such as are mentioned in Clause (c).
The term ''agriculturist'' means etymologically one versed in agriculture and is not used in Clause (c) in its etymological sense but it is used to
denote a per-son making his living by tilling the soil, in other words, one whose sole means of livelihood is gained by cultivating land and does not
necessarily mean only a person who works with his hands. But it means and includes a small holder of land who tills the soil and cultivates it.
Clause (c) has to be read in the light of Clauses 1 and 2. What is exempt from attachment is what is absolutely necessary to enable a person to
live, such as wearing apparel, cooking vessels, bedding, etc., tools of artisans, implements of husbandry, etc. A large landed proprietor, even
though his sole income is from land, is not an agriculturist within the meaning of Clause (c), Mr. Srinivasagopalachariar''s contention is that a man
whose sole income is from land, whatever its extent may be, whether he cultivates the land himself or leases it, is an agriculturist. If this is the
correct meaning of the word "" agriculturist, "" a man owning, say, 1,000 acres of wet land is an agriculturist provided he has no other source of
income. It could not have been the intention of the Legislature to give protection to such people. The protection is given to small owners of land as
well as actual tillers of the soil. The word "" agriculturist "" must be interpreted in a strict sense. In Jivan Bhaga v. Hira Bhaiji ILR (1887) 12 Bom.
363, West, J. observes:
It was for agriculturists in the strictest sense and for an agriculturist in that sole character that the protection of Section 266(c) of the CPC was
intended.
We hold that the appellants are not agriculturists within the meaning of Clause (c) of Section 60.
Even if the contention of the appellants that they are agriculturists is upheld, they would not succeed in the appeal unless they make out that the
house and cattle-shed are houses and buildings within the meaning of Clause (c). In order to make out that the house and cattle-shed come within
the meaning of Clause (c), they must be shown to have been occupied for purposes of agriculture, that is, in order to enable the owner or occupier
to cultivate land. The expression ""and occupied by him "" gives the clue to the meaning of Clause (c), i. e. that they are occupied by the agriculturists
as such, such as houses or buildings as are necessary for pursuing the occupation of agriculturistsa shed in a field or a house in the midst of fields
which is occupied so that the agricultural occupation may be carried on effectively and without loss of time, or, in other words, without such
buildings and houses the agricultural operations would suffer. A mansion in a large village in which the owner lives, even though he has no other
source of income except that from land, is not such a house as is contemplated by Clause (c), nor is the house of an ordinary agriculturist situated
at a. considerable distance from the land which he cultivates and which is not necessary for effective or convenient cultivation of the land. A man
may have a house in a town and a small holding at a considerable distance from the income of which he maintains himself. As the house in the town
is not occupied by him for purposes of agriculture, it is not exempt from attachment and sale under Clause 6.
We are glad to find that the view that we hold is in accordance with the view expressed by West and Nanabhai Haridas, JJ., in Radhakisan
Hakumji v. Balvant Ramp ILR (1883) 7 Bom 530. The learned Judges observe at page 531:
The exemption is of a house or building occupied by an agriculturist, and this, we think, means a house dwelt in by an agriculturist as such, and the
farm buildings appended to such dwelling. It does not include other houses, which in one sense may be occupied; what is meant is a physical
occupation by an owner of his house as a dwelling appropriate or convenient for his calling.
The house and cattle-shed are in the midst of a village containing, it is said, about 300 houses and cannot be said that they were occupied by the
appellants for purposes of agriculture and they do not come within the meaning of ""houses and other buildings belonging to an agriculturist and
occupied by him "" within the meaning of Section 60, Clause (c) of the Code of Civil Procedure.
The decision in Devare Hegde v. Vaikunt Subaya ILR (1917) 41 Bom. 475 does not help the appellants. The learned Judges cite With
approval the passage in Radhakisan Hakumji v. Balvant Ramji ILR (1883) 7 Bom 530, extracted above, and hold that if the building came within
the exemption given by Section 60, Clause (c) at the time of the attachment, the benefit thereof would not be lost by the death of the judgment-
debtor.
That the present contention is an after-thought is clear from the fact that the appellants mention the two items in their schedule as assets
available for distribution among the creditors and delivered possession thereof to the Official Receiver two years before they made the application
to the Lower Court.
In the result the appeal fails and is dismissed with costs.
Waller, J.
I do not consider that appellants can any longer be described as agriculturists. Their land has vested in the Official Receiver and there is nothing
to show that they cultivate any other land as labourers or tenants. A house, to be exempt from attachment u/s 60 of the Code of Civil Procedure,
must belong to or be occupied by an agriculturist as such, i. e., for the purpose of agriculture. Apart from that appellants placed the Official
Receiver in possession of goods before the adjudication and I do not think that they should now be allowed to plead exemption. I agree that the
appeal should be dismissed with costs.