GANGADHAR KASHINATH SAKHARE Vs. DATTATRAYA VISHVANATH SULAKHE

JUDGEMENT

(1.) THIS is a second appeal from a decision of the Assistant Judge of Sholapur. The only question that arises upon this appeal is whether a plaintiff, who is held not to be an agriculturist at the date of the suit purporting to be one for redemption under the Dekkhan Agriculturists' Relief Act, can invoke the provisions of Section 10A of that Act to show that the original transaction to which his predecessor an agriculturist was a party was in reality intended, contrary to the terms of the document, to be treated as a mortgage.

(2.) THE suit was instituted in August, 1930, by the plaintiff as the adopted son of one Kashinath, the adoption having been made by Kashinath's widow in 1924. THE plaintiff maintained that his father Kashinath, who died in 1909, had executed a formal conveyance of the property in dispute on February 11, 1899, in favour of the defendants, and that, although it was an out and out sale of the entire interest of the transferor, by. a contemporaneous agreement it was intended to be treated as a mortgage. As regards the plaintiff's status it was described in the plaint to be that of an agriculturist. It was also stated that Kashinath was an agriculturist in 1899. THE alleged nature of the transaction, the status of the plaintiff and that of his adoptive father were denied by the defendants, and that denial was upheld by the trial Court. In appeal the learned Assistant Judge took the view that Kashinath was an agriculturist in 1899, that the alleged contemporaneous agreement could be inferred from circumstances, but that as the plaintiff was not an agriculturist at the date of the suit, the suit was incompetent. He, however, remarked in paragraph 7 of his judgment that "it appears that, pending the suit, the plaintiff has started working personally in the fields and has taken lands of others on leases;" but in his opinion that circumstance did not enable the plaintiff to claim the benefit of Section 10A of the Dekkhan Agriculturists' Relief Act. Accordingly the trial Court's decree was confirmed; but the defendants, except the Municipality, who had acquired a portion of the land, were deprived of their costs. Against that decree the plaintiff has filed this second appeal and the defendants, the transferees under the deed of 1899, have filed cross-objections for costs.

(3.) IN the consideration of Mr. Desai's alternative argument it will be interesting to note how the legislature has expressed itself in the different parts of the Dekkhan Agriculturists' Relief Act as to when the privilege can be asserted or established for the purpose of the several reliefs referred to. The language of Section 10A of the Dekkhan Agriculturists' Relief Act does not follow the language used in Section 3 or Section 15B or Section 20 of that Act. IN Section 3(a) the legislature has stated that the provisions of Chapter II shall apply to suits for an account "instituted by an agriculturist." The legislature there expressly lays down that the plaintiff must be an agriculturist at the date of the suit. Section 20 says that "the Court may at any time direct that the amount of any decree, whether before or after this Act comes into force against an agriculturist . . . shall be paid by instalments with or without interest." Here it is obviously intended that the status must be that of an agriculturist at any time when the question of instalments arises. The provisions of Section 15B leave it to implication as to when the status has to be established. Although that section does not indicate clearly, as Section 20 does, the time when the claimant to the privilege should be an agriculturist, it has been construed as implying the time when the accounts are claimed, that is at the time of passing the decree (see Devu Jetiram v. Revappa Satappa (1921) I.L.R. 46 Bom. 964, s.c. 24 Bom. L.R. 370, and Bal v. Maneklal (1931) 34 Bom, L.R. 55, 73). The language used by the legislature is not uniform in these two sections, and the proper time for claiming the privilege has to be fixed by reference to the language used and the provisions as to relief. IN my opinion, the proper time when the jurisdiction to inquire into the real nature of the transaction could be assumed by the Court for the purpose of Section 10A is when the Court is requested to exercise that jurisdiction. That request is contained in the plaint when disclosing the essential cause of action, upon the averment that the plaintiff is an agriculturist and a party to the suit. Therefore if the plaintiff invokes the Court's jurisdiction under Section 10A, he must be an agriculturist within the meaning of Section 2 of the Dekkhan Agriculturists' Relief Act at the date when it is instituted. The question is really not of first impression and is covered by the authority of this Court (see Gadadhar v. Gangaram (1931) 33 Bom. L.R. 825, and Sultan Rahim v. Ranchhadji (1926) 29 Bom. L.R. 249). Although the question in the form in which it is presented was not raised in those cases, this Court has held that the provisions of Section 10A require that there should be an agriculturist plaintiff to a suit for redemption at the time of its institution.