Judgement Consolidated Appeals (No. 37 of 1947), by special leave, from two orders of the Board of Revenue (January 5 and August 28, 1943) which had dismissed appeals from orders passed by the Additional Collector of Benares (July 29, 1942, and April 19, 1943) in a matter arising from an application by the respondents under s. 4 of the United Provinces Encumbered Estates Act, 1934, and continued under that Act and the United Provinces Debt Redemption Act, 1940. The following facts are taken from the judgment of the Judicial Committee. On January 13, 1932, one Har Kishan Das mortgaged certain lands to the appellant to secure a debt of Rs. 1,78,500. The mortgagor was the manager and head of a joint Hindu family consisting of himself, his sons and grandsons, and the mortgaged property, the subject of this appeal, was and had remained the property of that joint family. In 1935, after the death of the mortgagor, the appellant instituted a suit against the then surviving members of the joint family to recover the balance of his mortgage debt. On July 3, 1936, while that suit was pending, the present respondents filed an application in the Court of the Collector of Benares for relief under the Act of 1934 and, as a result, the mortgage suit was stayed. After the passing of the Act of 1940 the application was continued, as already indicated, with a view to obtaining under that Act the protection from execu tion and foreclosure which it afforded in respect of the lands of certain agriculturists. The lands to which the application related formed part of the property mortgaged to the appellant. They fell into four categories which, with the local rates payable in respect of each, were as follows— Rs. as. ps. (1) Lands in Danialpur and Bikapur in the district of Benares .. .. 46 5 1 (2) Lands in Puranpatti in the district of Benares .. .. 9 10 0 (3) Lands in -Hemchapur in the district of Gorakhpur .. .. 25 14 9 (4) Lands in Parsar in the district of Jhansi 78 11 2 The respondents made that application as the only members then in existence of the joint family. Of them Nos. 1 and 2 were the sons of the mortgagor, Nos. 3, 4 and 5 were the sons of No. 1, and No. 6 was the son of No. 2. Of them Nos. 1 and 2 were the sons of the mortgagor, Nos. 3, 4 and 5 were the sons of No. 1, and No. 6 was the son of No. 2. In 1938 another son, Ganga Das, was born to respondent No. 2, making the membership of the joint family seven in all. On July 29, 1942, the Collector made an order declaring the lands in question protected lands under s. 17, read with s. 19, of the Act of 1940. The appellant then took the matter to the Board of Revenue (H. S. Ross, I.C.S., additional member) and on January 5, 1943, it affirmed the declaration of protection in respect of all the lands specified above and dismissed the appeal. From that decision the appellant now appealed. 1948. Mar. 10, 11. Rewcastle K.C. and Handoo for the appellant. In view of the decision of this Board in Hardat Ram v. Thakur Paras Nath (Ante p. 19.) it is not now contended that for the purposes of s. 17 of the Act of 1940 the joint indu family must be taken as a collective unit, and it is not denied that under that Act the individual members are entitled to protection if certain conditions are fulfilled. Further, it is not suggested that the basic principles of the Mitakshara govern this case entirely, or that the liability of the joint Hindu family to pay the local rates cannot be apportioned. What is submitted, however, is that in apportioning liability the share of each member must first be ascertained and the liability related to the share, and that notionally one must arrive at the share of each member as being that which he would receive on a partition. It was said in Hardat Rams case (Ibid. 22.) that "the " fourth respondent was the minor son of respondent No. 1, " and had no separate interest in the lands in suit,” and in that case the fourth respondent was not brought in. So here, the grandsons merely take a share in the fathers estate. When Har Kishan Das died there were two branches of the family, and two only, and on a partition each of the sons would take one-half, and the grandchildren would have to look for their share in the estate of their father. So here, the grandsons merely take a share in the fathers estate. When Har Kishan Das died there were two branches of the family, and two only, and on a partition each of the sons would take one-half, and the grandchildren would have to look for their share in the estate of their father. [In connexion with shares on partition reference was made to Mullas Principles of Hindu Law 9th ed., p. 388.] In the circumstances of this case, therefore, and for the purposes of this particular legislation, there should be a division into two. On the facts, however, and whether the division of the local rates is to be amongst two or six, the respondents are outside the protection of the Act. Further, even if it be correct to treat each co-parcener as if he were the holder of a divided share in the joint family property it would still be incorrect so to treat the two co-parceners born subsequent to the making pi the loan, who could in no circumstances be properly regarded as agriculturists to whom the loan was made. Lastly, even if it is correct to treat each co-parcener as if he were a co-sharer, still, inclusive of the local rate payable on the respondents Jhansi property, the amount of local rates payable by each member of the family in respect of his share exceeded the Rs. 25 limit, and it is contended that the local rate payable on the Jhansi property should not be excluded from consideration. Pringle K.C. and Pullan for the respondents. With regard, first, to the Jhansi property, on the basis of the facts and documents it cannot be said that local rates in respect of that property were paid by the respondents. They are not so payable, and in the circumstances it is not open to the appellant now to contend that they are. Further, as regards the Jhansi property the respondents do not satisfy the description of a " muafidar .... holding land" in the definition of " landlord" in s. 2, sub-s. 5, of the United Provinces Local Rates Act, 1914. Further, as regards the Jhansi property the respondents do not satisfy the description of a " muafidar .... holding land" in the definition of " landlord" in s. 2, sub-s. 5, of the United Provinces Local Rates Act, 1914. The position is that there was a judgment of the Collector declaring that all the landed property belonging to the applicants was protected under s. 17 read with s. 19 of the Act of 1940; the appellant then appealed against that judgment, and the first four grounds of appeal were all concerned with Jhansi, the other grounds, five to eight, dealt, in substance, with the question whether the mortgaged property was the self-acquired property of Har Kishan Das; then at the very beginning of the judgment of the Board of Revenue it was said "against this order the appellant pleads that the " Jhansi property has been ignored and the local rate there is "Rs. 78-11-2. Other grounds of appeal No. 5 to 8 have "been waived." That covers the whole question. The Board of Revenue went on to treat the matter as open and held that as the respondents paid no local rate in respect of the Jhansi property all the land was protected. Here, the stage of execution has been reached; there is land of seven agriculturists, and the question is, what local rate for the purposes of the Act is each of them paying? The only question decided in Hardat Rams case (Ante p. 19.) was that for the purpose of arriving at the Rs. 25 limit the joint Hindu family is not to be taken as a unit, but that each member is to be treated individually, and he must pay his proportionate share. On that basis, and excluding Jhansi, the proportionate share of each of the seven members is such as to bring them within the Rs. 25 limit. Pullan followed. Rewcastle K.C. replied. April 8. The judgment of their Lordships was delivered by LORD MACDERMOTT, who stated the facts set out above and continued The appellants second appeal arises from subsequent proceedings before the Collector and the Board of Revenue, but it is unnecessary to go into these as, on the con clusions reached by their Lordships, the second appeal will be ruled by the decision in that from the Board of Revenues order of January 5, 1943. To obtain the protection from execution sought by the respondents under the Act of 1940 an applicant must be an "agriculturist," which is defined by the portion of s. 2, sub-s. 3, relevant to this case as meaning "a proprietor of "a mahal or of a share in or portion of a mahal or a tenant," and he must also by s. 17, sub-s. 1 (a), be "an agriculturist, "the local rate payable by whom or recoverable from whom " does not exceed twenty-five rupees per annum . . . ." Though, as will appear later, the respondents are superior proprietors of certain of the lands in question and, as such, are not directly concerned either personally or through tenants in the agricultural use of those lands, the appellant did not contend in the courts in India, or suggest as a ground for his appeal to the Board, that the respondents were not agriculturists within the meaning of the Act of 1940 in respect of all or any of their lands. This being so, their Lordships do not propose to discuss the wide terms of the definition and will proceed on the assumption that the respondents were agriculturists for the purposes of the statute as regards all the said properties. Under the Mitakshara law it is well settled that a member of an undivided Hindu family cannot be regarded as having a definite share in the family property before partition. It was on this proposition that the appellant based his first submission to the effect that the respondents should be treated as a single, joint family, unit and should not be considered separately, as individuals, for the purpose of qualifying for protection under the terms of s. 17 of the Act of 1940. This point, however, is no longer open to the appellant as it has been decided against him in the recent judgment of the Board in Hardat Ram and others v. Thakur Paras Nath and others (Ante p. 19.) which was delivered by Sir Madhavan Nair on January 13, 1948. There it was held that the relief given by the legislation under consideration was personal and that each debtor member should be regarded separately. This conclusion was based on a careful survey of the relevant statutory provisions which need not now be re-examined. There it was held that the relief given by the legislation under consideration was personal and that each debtor member should be regarded separately. This conclusion was based on a careful survey of the relevant statutory provisions which need not now be re-examined. It appears sufficiently from the following passage in the judgment "As regards the " objection that no individual member of the joint Hindu " family can claim a definite share of the property till partition, " their Lordships, after carefully considering the question, " are definitely of opinion that this case should be judged "solely with reference to s. 3 (e) (i), and s. 17, sub-s. 1 (o), " of the Act of 1940, to which attention has already been "drawn, and not by applying to it any basic principle of the " Mitakshara law. Though it cannot be predicated that a " member of an undivided Hindu family under the Mitakshara " law has a definite share in the family property till partition, " it cannot be disputed that he has a joint coparcenary interest " in the ancestral property along with the other coparceners” (Ibid. 29.). Proceeding, then on the basis that the terms of s. 17, sub-s. 1 (a), of the Act of 1940 must be applied to the respondents individually, two further questions arise— (1.) What is the total amount of the local rates payable by or recoverable from the respondents, for the purposes of s. 17, in respect of the lands in question? and (2.) of that amount does the share or proportion to be allocated to each respondent exceed Rs. 25 per annum ? On the first of these questions it was contended for the appellant that the rates payable on the lands in the Jhansi district, which were Rs. 78-11-2 per annum, should be included in the computation. The Collector appears to have disregarded these rates in making his order of July 29, 1942. On appeal therefrom to the Board of Revenue the appellant waived all grounds of appeal save those relating to the amount of local rates and it would appear that the point under discussion was then closely canvassed. The Collector appears to have disregarded these rates in making his order of July 29, 1942. On appeal therefrom to the Board of Revenue the appellant waived all grounds of appeal save those relating to the amount of local rates and it would appear that the point under discussion was then closely canvassed. The Board decided that the Jhansi rates should be left out of account, the material part of its judgment of January 5, 1943, reading as follows — " The respondents are superior proprietors and receive the “land revenue from the zamindars, who are described as " Malik Adna. The position has been discussed in appeal " No. 60 Gulam Mustafa v. Musammat Imam Bandi Bibi " decided on December 12, 1942, from district Jaunpur. The " zamindars, namely, the Malik Adna pay local cess and there " is no liability on the superior proprietors to pay ; under " s. 7 of the Local Rates Act, 1914, the zamindar or Malik "‘Adna’ recovers the local rates from the tenants and it is " they who settle the land and cultivate the ‘sir ." On the facts it is clear that these rates were not paid by the respondents, but the test is whether in law they were payable by or recoverable from them, and that depends on the provisions of the United Provinces Local Rates Act, 194, which by chapter II places liability for payment on " the landlord "independently of, and in addition to, any land revenue for "the time being assessed on the estate . . . ." and by chapter III empowers the landlord to recover the rates paid from tenants and certain other inferior interests. By s. 2, sub-s. 5, of this Act—" landlord means the person responsible for the payment of the land revenue, if any, assessed on " the estate, and includes a muafidar or other person holding l land of which the land revenue has been wholly or in part "released, compounded for, redeemed or assigned." In the view of their Lordships this definition cannot, on the true construction of the statute, extend to superior proprietors, such as the respondents, who receive the land revenue from under proprietors who themselves hold the lands directly or through tenants. They are, therefore, of opinion that the decision of the Board of Revenue was right and that the rates payable in respect of the Jhansi property should be disregarded. A further point arose on this branch of the case respecting the local rates of Rs. 9-10-0 payable in respect of the lands in Puranpatti in the district of Benares. This sum was not reckoned by the Collector and the omission to do so was not ruled on by the Board of Revenue, which found it unnecessary to decide whether there had been a mistake regarding this item. The record affords little material on which to reach a conclusion concerning this matter, but as it is evident that there was such a rate and that the considerations respecting the Jhansi rating did not apply to it, their Lordships will assume in the appellants favour, for the purposes of this judgment, that the respondents were liable to pay this sum. So assuming, and giving effect to the proviso to s. 17 of the Act of 1940 by which, for the purposes of that section, the local rates in the Benares district are to be taken as doubled, the relevant total of local rents payable in respect of the lands in question is Rs. 137-12-11, computed as follows Rs. as. ps. (1) On the lands in Danialpur and Bikapur, Benares, Rs. 46-5-1 x 2 .. = 92 10 2 (2) On the lands in Puranpatti, Benares, Rs. 9-10-0 x 2 .. = 19 4 0 (3) On the lands in Hemchapur, Gorakhpur 25 14 9 137 12 11 Turning to the second of the questions stated above it will be convenient to consider first of all the submission made on behalf of the appellant that, to ascertain the relevant shares or proportions of the total rating liability for the purposes of s. 17, sub-s. 1 (a), the division should be made per stirpes and that the divisor should, in consequence, be two. This was on the theory that if the joint family and its landed property had to be notionally divided in applying s. 17, the appropriate unit was the stirps of which, at all material times there were two, namely, the respondents B. Parshottam Das and B. Jai Krishna Das and their respective sons. In their Lordships view this contention must be rejected. In their Lordships view this contention must be rejected. It cannot be related to the specific provisions of s. 3, (e) (ii), of the Act of 1940 which deal only with the qualification of a member of a joint Hindu family to rank as an agriculturist for the purposes of that Act, nor can it be reconciled with the principle of personal protection laid down by their Lordships in Hardat Rams case (Ante p. 19.). The next matter to be considered is whether, in the process of allocating the total of the local rates between the members of the joint family the membership should be reckoned at six, as it was when the application for relief was first made, or at seven, as it was after the birth of Ganga Das in 1938. While it is clear that in working out the provisions of the Act of 1940 the qualification for relief must be settled with regard to the facts existing at some particular date, their Lordships can see no reason for looking on the date of the original application as crucial or for saying that an increase in the joint family membership taking place in 1938, before any final adjudication in the matter had been made, should be left out of account. They therefore consider that the relevant membership should be taken at seven and not six. The basis of the notional division to be made for the purpose of applying s. 17, sub-s. 1, to individual members of a joint Hindu family was the subject of much debate in the course of the argument. Apart from the stirpital basis which has already been rejected, the rival contentions were—(a) that the division should be amongst the members per capita, and (b) that the division should be amongst the members according to the shares they would take in the joint property on partition. The correct basis was not decided in Hardat Rams case (Ante p. 19.), but would appear to be one or other of the alternatives just mentioned. The question thus arising is one of some difficulty due, no doubt to the manner in which the requirements of the statute conflict with the conception of the joint family according to the Mitakshara law. The question thus arising is one of some difficulty due, no doubt to the manner in which the requirements of the statute conflict with the conception of the joint family according to the Mitakshara law. In the present case, however, it is unnecessary to resolve this difficulty as on either view, having regard to the conclusions already arrived at, the proportion of the total rating burden of Rs. 137-12-11 falling on any one of the respondents does not exceed Rs. 25 per annum, the only possible divisors being seven in one case and eight and six in the other. For these reasons, their Lordships are of opinion that the respondents were entitled to the relief claimed under the Act of 1940. They will therefore humbly advise His Majesty that the decisions of the Board of Revenue be affirmed and the appeals dismissed. The appellant will pay the costs of the appeals.