JIBHAOO HARISINGH RAJPUT Vs. AJAB SINGH FAKIRA RAJPUT

JUDGEMENT

(1.) These are two applications in revision against the orders passed by the District Judge of West Khaudesh, and the applicants in both the applications are creditors. The debtors in each case made applications (or an adjustment of their debts contending that the transactions of sale evidenced by the oral vardi given to the village officers were in the nature of a mortgage. They, therefore, claimed accounts on that basis and asked foe adjustments of their debts. The creditors, on the other hand, contended that the transactions were sales out and out. The Debt Adjustment Court raised an issue in each case, "whether the transaction was in the nature of a mortgage." But the Court did not think it feasible to record any finding on that issue. The principal reason for this was that even if, on the evidence adduced by the debtors and from the surrounding circumstances, the Court came to the conclusion that the real nature of the transaction was that of a mortgage, still it could not proceed to grant any relief to the debtor because there could not be a valid mortgage in the absence of a registered instrument. It was further held that the oral sale was invalid and could not operate to convey any title in the property to the creditor. At the same time, the Debt Adjustment Court held that the amount of the purchase money paid by the creditor to the debtor was a debt for which the creditor held a charge on the property. In that view, the Court came to the conclusion that there was an existing debt which could be adjusted, and accordingly relief could be given to the debtor by taking accounts and by ordering restoration of the property to him.

(2.) Against that decision the creditors went in appeal to the District Court. The learned District Judge came to the conclusion that the oral sale evidenced by the vardi was neither a valid sale nor could it be declared as a mortgage. He was of the opinion that the transferee in possession, viz. the creditor, had a charge or a lien upon the property to the extent of the consideration of the transaction. Ho accordingly agreed with the view of the Debt Adjustment Court that the purchase money paid under the invalid sale amounted to a debt within the meaning of that word in the Bombay Agricultural Debtors Relief Act, and that the Special Court under that Act was competent to inquire into the question about the legal effect of the oral sale and the relief claimed by the debtor. The learned District Judge therefore agreed with the view of the Debt Adjustment Court on both the issues and dismissed the creditors' appeal. Against that order these applications have been filed in revision.

(3.) The question before us, viz., whether the Debt Adjustment Court is competent to inquire into the real nature of the transaction of an oral sale turns on the interpretation of Section 24 (1), Bombay Agricultural Debtors Relief Act, 1947. That sub-section is in the following terms :