BABIBAI THAKUJI Vs. FAZLUDDIN USMANBHAI MOMIN

JUDGEMENT

(1.) A rather interesting question arises on this civil revision application. A Board under the Bombay Agricultural Debtors' Relief Act of 1939 was set up in the Khed taluka on 1st January, 1942. The last day for making applications tor adjustment of debts under Section 17 was 1st June, 1943. On 7th July, 1942, one Rajguru applied for the adjustment of the debt due by the husband of the petitioner, Thakuji. Notices were issued under Section 31 of the Act and in reply to the notice a statement was submitted by the petitioner, on 19th December, 1946, Thakuji having died in the meanwhile. In that statement she challenged five transactions of sale. Her case was that Thakuji had purported to sell three lands by three transactions of 1925, 1927 and 1931 to the brother of opponent No. 1 Kasambhai and there were two other transactions also purporting to be sales in favour of one Tarvade and these two lands had been ultimately transferred by Tarvade to Kasambhai and in partition between opponent No. 1 and Kasambhai all these five lands had gone to the share of opponent No. 1. The petitioner, therefore, contended in this statement that these transactions should be declared to be mortgage transactions and accounts should be taken in respect of these mortgages.

(2.) NOW, opponent No. 1 had filed two suits in Civil Courts, being suits Nos. 177 of 1946 and 183 of 1946, claiming possession of these lands from the petitioner. He had also filed a tenancy application in respect of these lands before the Revenue Court and that tenancy application was No. 1020 of 1948. An order was passed by consent on 27th February, 1948, transferring these two suits Nos. 177 of 1946 and 183 of 1946 to the Debt Adjustment Court. A consent order was also taken transferring the tenancy application also to the Debt Adjustment Court. The Debt Adjustment Court held that all these five transactions were mortgages and passed an award adjusting the debts due under these mortgages on 5th September, 1950. An appeal was preferred to the District Court and the District Court held that the civil Court bad no jurisdiction to transfer the two suits Nos. 177 of 1948 and 183 of 1946 to the Debt Adjustment Court, that equally the tenancy application No. 1020 of 1948 should not have been transferred to the Debt Adjustment Court, and therefore modified the award passed by the trial Court by deleting from it the provision with regard to the adjustment of these mortgages. On merits the learned District Judge held that the trial Court was right in coming to the conclusion that the transactions were mortgages and not sales. It is from this order of the District Judge that this revision application is preferred.

(3.) MR. Desai's contention is that these two suits Nos. 177 of 1946 and 183 of 1946 were pending in the civil Court when the statement was filed by the petitioner on 19th December, 1946. According to Mr. Desai the relevant and material date in this case is 19th December, 1946, when the petitioner for the first time made an application to the Debt Adjustment Court challenging the transactions, and with reference to that date the two suits must be looked upon as pending suits and therefore they were liable to be transferred under Section 19 of the new Act. Mr. Desai concedes that if that argument is sound, then as far as the tenancy application is concerned, it was filed after the statement of 19th December, 1946, and therefore as far as the transfer of the tenancy application was concerned, he cannot contend that that transfer was a valid or a proper transfer.