Rama Prasad Singh vs Sajan Mahto

Harries, C.J.—This is a decree-holder''s second appeal from orders of the Courts below exempting one acre of the judgment-debtor''s land u/s 15, Bihar Money-Lenders (Regulation of Transactions) Act, from sale in execution of a decree. The judgment-debtor-respondent is a cultivator holding lands with others in two villages Arna and Saphi. In execution of a decree, the decree-holder-appellant first sought to attach the judgment-debtor''s interest in the whole of the land held by him and his cosharers. This land, it is said, exceeded 20 bighas. Subsequently, this application was amended by the decree-holder, and in the amended petition he sought to attach and sell five separate plots in khata Nos. 233 and 234 in village Arna and khata Nos. 119 and 88 in village Saphi. These lands were said to be the judgment-debtor''s share of the whole area held by him and his cosharers.

It is clear from the amended petition that the land sought to be sold is land in the exclusive possession of the judgment-debtor and in which he alone is interested. The area of the land sought to be sold is stated to be 1 bigha 12 kathas 5f dhurs, and the decree-holder claims that this is the judgment-debtor''s land which can be sold to satisfy the decree held against him. In the application for execution the judgment-debtor is described as "girhasti". The judgment-debtor-respondent applied u/s 15, Bihar Money-Lenders Act, praying that one acre of his land should be exempted from the execution sale. This application was opposed by the decree-holder; but both the Courts below have held that one of the judgment-debtor''s land must be exempted from sale--hence this second appeal. Section 15, Bihar Money-Lenders Act, is in these terms:

(1) Notwithstanding anything to the contrary contained in any other law or in anything, having the force of law, where a decree is passed before or after the commencement of this Act for the payment by an agricultural debtor of the amount due on any loan advanced to him by a money-lender, the Court executing the decree (i) shall exempt from sale one acre of the land comprised in the holding or holdings of the judgment-debtor, if the area of such land does lot exceed three acres; and (ii) shall exempt one acre, and may exempt any further portion of such land if the area of such land exceeds three acres; provided that the total area exempted from the sale does not exceed one-third of the total area of such land.

(2) For the purposes of this Section "agricultural debtor" means a raiyat the total area of whose holding ?or holdings does not exceed such area as the Provincial Government may fix for the district or part of the district in which such holding or holdings are situate.

By a Government notification dated 12th January 1940, No. 116-VIA-13-Com.--Governor of Bihar in the exercise of powers conferred by Sub-section (2) of Section 15 fixed for the purposes of the said Sub-section (2) an area of five acres as the area which the total area of a raiyat''s holding or holdings shall not exceed in any district of the province other than the districts of the Chota Nagpur Division and the district of the Santal Parganas.

In the present case, it is common ground that the decree is based on a loan advanced by a money-lender, and the Section will therefore apply if the judgment debtor is an agricultural raiyat holding land of an area of five acres or less. According to the judgment-debtor, his holding is only 1 bigha 12 kathas 5 2/3 dhurs, and therefore one acre of the land should be exempted from sale under the provisions of Section 15(1)(i). On behalf of the decree-holder-appellant, however, it has been contended by Mr. G.C. Mukharji that the land held by the judgment-debtor is not a holding, and therefore the Section has no application. His contention is that the Section only exempts from sale a part of a holding and if the land in question is not a holding no exemption can be claimed. Mr. Mukharji further contended that the judgment-debtor is not a raiyat, and therefore not an agricultural-debtor within the meaning of the section. Can the land sought to be attached and sold in this case be regarded as a holding under this section? The decree-holder in his amended application asserted that the whole of this 1 bigha 12 kathas 5f dhurs belonged to the judgment-debtor and could be sold to satisfy the decretal debt. The amended application for execution clearly, implies that no other person is interested in this land and that the land is the sole property of the judgment-debtor.

It is common ground that the land forms part of a larger area held by a number of cosharers including the judgment-debtor, and Mr. Mukharji contends that this larger area only can be regarded as a holding and that the part in the exclusive possession and ownership of the judgment-debtor cannot be so regarded. It is to be observed that the word "holding" is not defined in the Bihar Money-Lenders Act.

It has been urged on behalf of the decree-holder that the term "holding" in this Section must be given the same meaning as that word is given in Section 3(9), Bihar Tenancy Act, where "holding" is defined as a parcel or parcels of land held by a raiyat and forming the subject of a separate tenancy. To constitute a holding, therefore, under the Bihar Tenancy Act the land must form the subject of a separate tenancy, and it must be held by a raiyat. Admittedly, the judgment-debtor does not hold the land in question under a separate tenancy. The actual tenancy comprises a larger area, and the tenants or raiyqts are the general body of cosharers. It is true that the term "holding" is given a distinct and definite meaning in the Bihar Tenancy Act; but the opening words of Section 3 of that Act make it clear that the term is defined for the purposes of that Act only. There is, therefore, no reason which compels a Court to apply the definition of "holding" given in the Bihar Tenancy Act to the word "holding" when used in the Bihar Money-Lenders Act.

It was strongly urged that the term "holding" is a technical term and means land held by a raiyat under a separate tenancy, and that being so it must be given the same meaning in any statute in which it appears. It is an undoubted rule of construction that technical terms used in a statute must be given their technical meaning. But is the term "holding" a technical term with a definite meaning? It must be remembered that the Bihar Money-Lenders Act has, as one of its main objects, the relief of poor debtors and poor cultivators. One of the modes in which relief is given is the exemption from sale in execution of part of a small cultivator''s land. The intention of the Legislature, in enacting Section 15, Bihar Money-Lenders Act, was clearly to leave the judgment-debtor some land so that he could continue to exist in spite of an execution. The Section only applies to small cultivators, and it was enacted for a province in which the great majority of cultivators are Hindus governed by the Mitakshara school of Hindu law. Amongst Hindus, land is held as a rule not by an individual but by the joint family, and the tenant is rarely a single individual, but on the contrary the tenancy is held by the joint family. Such tenancies are frequently divided amongst the cosharers so that each possesses and cultivates a portion which represents his share. Though partitions of this kind frequently take place, the individuals rarely become tenants of their shares in the strict sense of the term, and the tenancy remains that of the larger area with the body of coshares as the tenants. Such a division or partition has undoubtedly taken place in this case, as the decree-holder in his amended application for execution admits that the judgment-debtor is the sole person interested in the land sought to be sold.

Mr. G.C. Mukharji concedes that the land held by the judgment-debtor would be a holding if the provisions of Section 25A, Bihar Tenancy Act, had been complied with; but as there has been no such compliance the land cannot be regarded as a holding. Had notice of this partition been given to the landlord and the latter had agreed to the proposed distribution of rent, the matter would have been beyond question. However, all that has occurred is that the cosharers have divided the land amongst themselves without taking the necessary steps to create vis-a-vis the landlord distinct tenancies with respect to each portion so divided.

The judgment-debtor''s land in this case does not constitute a holding under the Bihar Tenancy Act, but the judgment-debtor does, in my view, hold this land exclusively for himself. Once it is conceded that the land is exclusively that of the judgment-debtor and can be sold to satisfy his debts, then it is, I think, land held by him or, in other words the land is his holding as that word is used in the Bihar Money-Lenders Act. To hold otherwise would be to defeat to a large extent the object of Section 15. If the term ''holding'' must be given the meaning it has in the Bihar Tenancy Act, then Section 15 could not apply except where there had been a partition in strict accord with the provisions of Section 25A, Bihar Tenancy Act. In cases where there had been actual partition but no separate tenancies created, no relief could be given under the Act. To place such a construction on the Section would deprive a large number of poor agricultural debtors of the protection which the Legislature clearly intended they should have. In my view, a beneficial construction must be placed on the terms used in this section. The rule of "beneficial construction" is enunciated as follows in Maxwell on the Interpretation of Statutes, Edn. 8, at pages 61 and 62:

It is said to be the duty of the Judge to make such construction of a statute as shall suppress the mischief and advance the remedy. Even where the usual meaning of the language falls short of the whole object of the Legislature, a more extended meaning may be attributed to the words, if they are fairly susceptible of it. The construction must not, of course, be strained to include cases plainly omitted from the natural meaning of the words.... Thus, the Legislature having intended when passing the Workmen''s Compensation Act, 1897, that every workman in the prescribed trades should be entitled to compensation, the Act ought to be construed, so far as possible, to give effect to its primary provisions.

In my view, this Section also must be construed, as far as possible, to give effect to its primary provisions, namely, the relief of poor agricultural debtors, and this, I think, can be done without straining the natural meaning of the word "holding." The word "holding" should be so construed as to give the poor agricultural debtor the relief intended and not in a manner which would deprive him of such relief. In this Section ''holding,'' in my view, means what the agriculturist holds as his own, even though a relationship of landlord and tenant has not been created with respect to the land. The land in question in this ease undoubtedly belongs to the judgment-debtor vis-a-vis his cosharers, and that being so, it is his holding within the meaning of that term as used in Section 15, Bihar Money-Lenders Act. It was also strenuously contended that the judgment-debtor is not an agricultural debtor because he is not a raiyat in the strict sense of the term. As I have already stated, "agricultural debtor" is defined in Sub-section (2) of Section 15

as a raiyat the total area of whose holding or holdings does not exceed such area as the Provincial Government may fix for the district....

and as I have mentioned that area has now been fixed at five acres. It was pointed out by Mr. G.C. Mukharji that the term ''raiyat'' is defined in Sub-sections (2) and (3) of S.5, Bihar Tenancy Act. Sub-section (2) is in these terms:

''Baiyat'' means primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family, or by hired servants, or with the aid of partners, and includes also the successors in interest of persons who have acquired such a right.

Sub-section (3) provides that

a person shall not be deemed to be a raiyat unless he holds land either immediately under a proprietor or immediately under a tenure-holder.

In short a person to be a raiyat under the Bihar Tenancy Act must hold a tenancy of the land from either the proprietor or the tenure-holder. It was again urged before the Court that the term "raiyat" is a technical term and must be given its technical meaning whenever it appears in any statute. There can be no doubt that a special meaning has been given to this term in the Bihar Tenancy Act, but there can be no doubt that in this province the word "raiyat" is used often to mean any cultivator cultivating land for his own benefit. The Bihar Tenancy Act draws a distinction between raiyats and under-raiyats, that is between persons holding from a proprietor or tenure-holder and persons holding from a raiyat. In a village, however, the word "raiyat" would be wide enough to cover both classes of tenants. In short, the word "raiyat" as it is ordinarily used, is a word to denote a cultivator or agriculturist rather than a per. son who holds a tenancy from a particular class of person. It must be remembered that where the members of a joint family are the tenants of land no individual member of that family can be regarded as a raiyat under the Bihar Tenancy Act, yet all the members of such family who are engaged in cultivation are invariably referred to as raiyats. In ordinary language, the word has a wider meaning than that given to it in Section 5, Sub-sections (2) and (3), Bihar Tenancy Act, It is a word used to denote actual cultivators or agriculturists as opposed to zamindars, tenure-holders, ijaradars, etc., and that being so, I do not see why this wider but ordinary meaning of the word should not be given to it in Section 15, Bihar Money-lenders Act, and thus give relief to those who were intended to have such relief.

In my judgment, the judgment-debtor is for the purposes of Section 15, Bihar Money-lenders Act, a raiyat cultivating a holding, and this is supported by the description given to him in the execution petition, namely, "girhasti." As the judgment-debtor is, in my view, an agricultural debtor holding less than three acres of land, the Courts below were right in exempting one acre from the execution sale. For the reasons which I have given, I see no ground for interfering with the orders of the Courts below, and that being so, I would dismiss this appeal with costs.

Dhavle, J.

I agree.