NARAYAN BHIMJI VADANGALE AND ANR.

\i.

HUKUMCHAND CHUNILAL THOLE AND ANR.

DECEMBER 6, 1991

[MADAN MOHAN PUNCHHI AND G.N. RAY, JJ.]

Bombay Tenancy and Agricultural Lands Act, 1948.

Sections 2(2), 63 and 85-A-Firm purchasing agricultural land in court auction in execution of decree-Whether firm agriculturist or non-agriculturise depends Upon activities of its partners-Pariners, agriculturists and mem- C bers of joint family, holding land beyond the ceiling limitr-Whether auction sale in favour of firm vaiid.

In execution of the decree for recovery of a sum of money obtained by the respondentfirm, the agricultural land of the judgriientdebtor was attached and put to auction and the decree holder-firm with due permis- D sion of the Court emerged as the successful bidder in the auction. The auction was later confirmed by the Executing Court, but before the isSuance of the sale certificate, the appellants, heirs of the judgment debtor, moved an Objection Petition under Section 47 of the Code of Civil Procedure before the Executing Court on the ground that the auction sale E was violative of Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 inasmuch as the decree-holder firm was non-agricultur ist. This objection was upheld by the Executing Court and affirmed in appeal, but the same was reversed by the High Court on the view that the firm being an inanimate person could neither be an agriculturist nor a non-agriculturist. Hence, the heirs of the Judgment-debtor filed an appeal F before this Court.

Allowing the appeal, this Court,

HELD : 1.1 When a firm is said to be cultivating land, it means that U is the partners of the firm who cultivate the land and in that sense the G firm cultivates it personally. The firm may be inanimate but the partners comprising thereof are people in flesh and blood. Whether the firm is agriculturist or non-agriculturist would depend upon the activities of its partners. [241 D]

1.2 In the instant case, in order to determine as to whether the H

SUPREME COURT ~.EPORTS

[1991) SUPP. 3 S. C.R.

A partners or the firm were agriculturist or not, the Executing Court

referred the issue to the revenue Court for trial under Section 85-A of the Bombay Tenancy and Agricultural Lands Act, 1948 and on the basis of its finding that both the partners or the firm were agriculturists, but as members or a joint family their holding was reckoned as such and was beyond their ceiling Omit, it sustained the objection o( the appellant and B held that the auction sale was violative or Section 63 or the Act. (241 E]

1.3 Under Section 63 or the Act no person, including a Hindu joint family, could purchase area which would go to exceed the ceiling area to which he or it was entitled. It is' undisputed that the auction sale in the instant case has gone to swell the area of the joint family, members or C which were the two partners comprising the firm so as to exceed the ceiling

area. Hence, the auction sale in favour or the respondents is void under sectfon 63 of the Bombay Tenancy and Agricultural Lands Act, 1948.

(241 F]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1903 of 1979

From the Judgment dated 12.1.1979 of the Bombay High Court in Appeal No. 625 of 1975. ·

P.H. Parekh and BN. Agm; wal for the Appellants.

E V N. Ganpule, A.B. Lal and Mrs. V.D. Khanna for the Resi)ondents. ·

The following order of the Court was delivered :

This appeal by special leave is directed against the judgment and order F dated 12.1.1979 of the High Court of Bombay passed in Second Appeal No. 625of1975.

The appellants herein are heirs of the original judgment-debtor. The respondents herein is the decree holder firm. The decree holder firm as plaintiff filed a suit for recovery of a sum of money against the Defendant judgmentdebtor. The suit was decreed. In execution thereof some agricultural land of the G judgment-debtor was attached and put to auction. The decree holder firm with due permission of the Court emerged as the successful bidder at the auction.

The auction was later confirmed by the Executing Court and a sale certificate was issued to the firm.

In the meantime, before the issuance of the sale certificate, the heirs of H the judgment-debtor moved an Objection Petition under Section 47 of the Code

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NARAYAN BHIMJI v. HUKUMCHAND 241

of Civil Procedure before the Executing Court on the ground that the auction A sale was violative of Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 inasmuch as the decree holder firm was non-agriculturist.

This .objection found favour with the Executing Court and was affirmed in appeal but the same was reversed by the High Court. The High Court took the view that the firm being an inanimate person could neither be an agriculturist nor a non-agriculturist. For the view taken the High Court took in aid the B definition of the word 'agriculturist' contained in Section 2(2) of the aforesaid Act which meant a person who cultivates the land personally. Since the firm as such was held by the High Court to be incapa, ble of personal cultivation the auction sale was taken out of the purview of Section 63 of the Act resulting in the dismissal of the Objection Petition giving rise to the present appeal.

Now we are required to examine whether the view taken by the High c

Court in treating the firm as inanimate, incapable of personal cultivation of agricultural land is correct or otherwise. No elaboration is necessary to understand the legal composition of a firm and its personality which is a name given compendiously to a group of people who comprise its partners, and those people have naturally to be live persons. When we talk of a firm cultivating land we mean to convey that it is the partners of the firm who cultivate the land D and in that sense the firm cultivates it personally. the firm may be inanimate but the partners comprising thereof are people in flesh and blood. On this analysis the basis of the judgment of the High Court gets knocked off. Whether the firm is agriculturist or non-agriculturist would depend upon the activities of its partners. It is worthwhile to mention here that in order to determine as to whether partners of the fitm were agriculturists or not the Executing Court E ventured to send to the revenue Court for trial an issue to that effect under Section 85-A of the said Act as required by law. The revenue Court returned the finding that both the partners of the firm were agriculturists but as members of a joint family their holding was reckoned as such and was beyond their ceiling limit. Relying on such finding the Executing Court sustained the objection. But it was obvious that under Section 63 of the said Act no person, F including a Hindu Joint Family, could purchase area which would go to excee9 the ceiling area to which he or jt was entitled. It is undisputed that the auction sale has gone to swell the area of the joint family; members of which were the two partners comprising the firm, so as to exceed the ceiling area. This being the position it inevitably follows that the auction sale in favour of the respondents herein has to be declared as void under Section 63 of the Bombay G Tenancy and Agricultural Lands Act, 1948. The objection is thus sustained, the judgment and order of the High Court is set aside and that of the Executing Court as confirmed by the First Appellate Court restored. In the circumstances of the case there shall be no order as to costs. ,.

N.P.V.

Appeal allowed.