PARWAT VEDU PATIL Vs. SUKDEV SHIVRAM PATIL

JUDGEMENT

(1.) THIS revisions; application arises from debt adjustment proceedings. The transaction in question took place on 10-6-1927. The property which was the subject-matter of this transaction is Survey No. 193. It admeasures 17 acres and 25 gunthas. This property was ostensibly sold for Rs. 2,000/ -. This property originally belonged to an undivided Hindu family consisting of three brothers Shivram, Shankar and Parwat. The purchaser was the brother-in-law of Shivram. In the present proceedings Parwat and Shankar pleaded that the transaction was a mortgage and they wanted the adjustment of their debts on that footing. The learned trial Judge accepted the plea of the debtors, held that the transaction was a mortgage, adjusted the debts and passed an award in their favour. In appeal, a different view has prevailed. It has been held by the lower appellate Court that the transaction was a sale. On that view, there was no question of adjusting any debts and the application of the debtors so far as this transaction is concerned, has been dismissed. It is this decision which has given rise to the present revisional application.

(2.) MR. Desai for the petitioners fairly conceded that the question as to whether a transaction is in the nature of a mortgage or not would be a question of fact and ordinarily findings of fact recorded by the lower appellate Court on such a question would bind the parties in a revisional application. But Mr. Desai contended that in coming to the conclusion that the transaction was a sale the learned Judge also took the view that one document which was produced by the debtors appeared to be fabricated. That is why, in allowing the appeal preferred by the creditor, the learned Judge also directed that a notice shall be issued to both the debtors as also to their witness Dhanji Shivram to show cause as to why sanction should not be granted for prosecuting them for having forced the document and for using the same as evidence in the case. The document in question is Ex. 63/1. It is this part of the order and the finding on which the order is based that is seriously challenged before me by Mr. Desai.

(3.) NOW, the document in question purports to be a Karar executed on 25-1-1927. If this document were genuine, it may lend considerable support to the plea made by the debtors that the transaction of 1927 was a mortgage. In order to appreciate the effect of this document, some more facts must be stated. In 1927, a partition took place between the three brothers. By this partition, Parwat got 13 1/4 gunthas, Shankar got 4 3/4 gunthas and Shivram got 18 acres and 13 gunthas. 'prima facie' the partition appears to be inequitable. Shankar has got a very poor share and Shivaram appears to have obtained the best share. The debtor's case was that, at the time when the partition was effected, the family was indebted, and since Shivram took it upon himself to repay the family debts he was given 18 acres and 13 gunthas on condition that he should repay the family debts, enjoy the land for the said period and then bring it bark to the hotchpot to be divided again amongst the three brothers. This document was produced by the debtors on 7-3-1949 and the view which the lower appellate Court was disposed to take was that this document may have been fabricated some time in January 1949. The learned Judge has given some reasons in support of this conclusion. On the other hand, the trial Court was not impressed by the argument that the document was fabricated. He felt that the very fact that the partition was disclosed by the entries from the record of rights showed that there must have been some reason why one of the brothers was given a much larger share whilst the others were given a much smaller share and the learned Judge felt impressed by the argument that the Karar offered the explanation for the apparently inequitable nature of the partition. It is possible to take either of the two views on the record as it stands. If the Judgment of the lower appellate Court had not been materially influenced by inadmissible evidence, I may not have interfered with his final decision in the matter. But I am satisfied that, in coming to the conclusion that the document impugned appeared to be a fabricated document, the learned Judge was considerably swayed by the opinion of the handwriting expert.