HIMATSING DHANSING RAJPUT Vs. SONU DEVSING RAJPUT

JUDGEMENT

(1.) THE point of law which arises in these two appeals is whether the sale -deeds passed in favour of the appellant by the respondent are valid in view of the provisions of Section 40 of the Bombay Agricultural Debtors Relief Act.

(2.) THE property in suit consists of two fields, S. Nos. 114 and 30 of Aundanecha Pada in Baglan taluka. These survey numbers originally belonged to the defendant. They were sold by him to the plaintiff by two sale -deeds executed on April 6, 1948, for Rs. 2,000 and Rs. 4,000 respectively. The plaintiff's case was that he was put in possession of the properties conveyed to him and that he was subsequently dispossessed. That is why on March 2, 1949, he has filed the present suits to obtain possession of the said two fields.

(3.) IT is common ground that the defendant is a debtor, that an application was pending against him for the adjustment of his debts under the provisions of this Act and that at the time when the sale -deeds were executed in favour of the plaintiff the debts of the debtor had not been discharged, Mr. Gokhale, however, contends that in construing the provisions of Section 40 we should bear in mind the policy underlying the said provisions. According to Mr. Gokhale the policy underlying the section is to protect the creditors' claims and that is why limitation has been imposed upon the powers of the debtor to alienate his properties until his debts are discharged. It is, of course, clear that if an alienation is made by a debtor after his debts are discharged, this section cannot come into operation. Mr. Gokhale, therefore, suggests that we should construe the provisions of this section so as to make the impugned transaction not binding against the creditors alone. In other words, if a transaction is made by a debtor contrary to the provisions of Section 40, it may not bind the creditors and they may ignore it, but it would nevertheless bind the parties to the transaction.