MAHARU BHIKA Vs. DAGA NATHU

JUDGEMENT

(1.) THIS revisional application arises from debt adjustment proceedings and it raises a short question of limitation. The property in suit consists of two Survey Nos. 186 and 187. The opponent alleged that these two fields had been conveyed to the two petitioners respectively by way of security for a loan borrowed by his grandfather Jairam. He Accordingly claimed adjustment of the said debt and asked for the possession of the two lands. The petitioners denied this allegation and claimed absolute tide to the properties. The evidence disclosed that there was no registered document in respect of cither transfer. A mutation entry of the year 1911, which was produced however showed that Survey No, 186 had been sold by an oral sale by Jairam to the father of creditor 1 for Rs. 500/ -. . The said entry similarly showed an oral sale to creditor 2 in respect of Survey No. 187. The entry did not indicate the amount of consideration for the said transaction. The opponent stated in his evidence that the allegations made by him in regard to the nature of the transaction were based upon information received by him from his mother. At the elate of the application his mother was dead. The learned trial Judge held that oral transfers, which were invalid could not attract the provisions of Section 24 of R. A. D. R. Act. These oral transfers made the creditors chargeholders and since the transactions had taken place before 1911 the title of the chargeholders had become complete so that it was not open to the applicant to allege that the persons in possession of the properties were his creditors and to ask for adjustment of the said debts. On appeal the finding that the transactions were oral sales was confirmed but the learned District Judge took the view that the claim for adjustment of the debts was not barred because he held that to such a claim Article 148, Limitation Act would apply. That is why he set aside the order passed by the learned trial Judge and remanded the case for disposal in accordance with law. It is this order which is challenged before me by Mr. Jahagirdar on behalf of the creditors.

(2.) THE question of limitation which falls to be considered in the present revisional application will have to be dealt with in the light of the reported decision of a Division Bench of this Court in -- 'jibhaoo Harising v. Ajab Sing', 54 Born LR 971: (AIR 1953 Born 145) (A ). Rajadhyaksha J. who delivered the judgment of the Bench in that case, has held that an invalid transfer cannot invoke the provision of Section 24 (1) of the B. A. D. R, Act the learned Judges in this case, were dealing with an oral sale and they came to the conclusion that it was incompetent to the Court administering the provisions of the B. A. D. R. Act to hold an enquiry about the nature of such an oral sale and that an oral sale of immovable property worth more than Rs. 100/- is invalid and no enquiry about the character of this sale could be held under Section 24 (1 ). It was also held in this case that though an oral sale may to invalid and its nature cannot be determined under Section 24, it nevertheless created rights in favour of the alleged purchasers under Section 55 (6) (b), Transfer of Properly Act, In other words even though the sale may be invalid it created a charge in favour of the buyer for the purchase price paid by him unless the buyer forfeits the right by improperly declining to accept delivery of the property. Such a charge according to the judgment exists even in cases where the buyer may be in possession of the properties intended to be sold. In other words the position with regard to oral sales would be that the nature of such transactions cannot be determined under Section 24 (1) of the B. A. D. R. Act, but the buyer becomes a chargeholder and it would be open to the debtor to offer the amount in question to the intending buyer and require him to release his property from the burden of the charge. In that sense a proceeding under the B. A. D. R. Act can be entertained and the debt in question can be adjusted. It is in the light of this judgment that the question of limitation must be considered.

(3.) MR. Jahagirdar concedes that if his clients are in the position of chargeholders it would have been open to the opponent to take steps to release his properties from the burden of the charge by offering the amount or initiating legal proceedings in that behalf within limitation and according to Mr. Jahagirdar the limitation prescribed for taking such steps is one of 12 years and no more. Mr. Jahagirdar contends that the view taken by the learned District Judge that Article 148 would cover such a case is erroneous.