DAYABHAI JIVABHAI PATEL Vs. SHANA BANA PAGI

JUDGEMENT

(1.) THIS is a second appeal from the judgment of the District Judge of Nadiad. Under a deed dated September 15, 1906 (exhibit 34) the properties in dispute were stated to be conveyed to Bai Parsan. That document shows that the consideration for the transfer was previous debts due to the ostensible purchaser. Under a deed dated April 15, 1941, the original plaintiffs purchased the property from Bai Parsan. The plaintiffs allege that they were put in possession of the suit fields on the date of sale by Bai Parsan with the consent of the defendant, who was then Bai Parsan's tenant and who was unwilling to continue as the plaintiffs' tenant. It was alleged that in May, 1941, the defendant entered the said fields without any right and thus dispossessed the plaintiffs. The plaintiffs demanded possession, from the defendant but the defendant contended that the plaintiffs were not the owners but were mortgagees only. It was contended in the written statement that the transaction in favour of Bai Parsan was a mortgage and not a sale.

(2.) TWO questions were thereupon raised: (1) Whether the transaction in favour of Bai Parsan was a mortgage. If so, the plaintiffs could not get a better title and must be treated as transferees from the mortgagee. The second question was one of law. It was argued that in 1906, when the sale-deed was executed in favour of Bai Parsan, Section 10a of the Dekkhan Agriculturists' Belief Act had not been enacted. Therefore, the defendant was not entitled to lead evidence to show that the transaction was not a sale but was only a mortgage. On both these points the two Courts decided against the plaintiffs. The same two points have been raised before me in this second appeal.

(3.) IN my opinion, that decision in effect rejected the reasons of Scott C. J. on which the decision in Sawantrawa v. Giriappa was based. IN Ganpat v. Tulsi the Court held that in reading the definition of agriculturist it is proper to read after the word 'act', 'wholly or in part. ' That was the view not only of Marten J. but also of the two other Judges who formed the bench. If that meaning is read in the proviso to Section 10a, it is clear that in the present case it is open to the defendant to prove, that the real nature of the transaction of 1906 under exhibit 34 was a mortgage and not a sale. The defendant's predecessor-in-title would be an agriculturist within the meaning of the proviso if the word 'agriculturist' is so interpreted. Section 10a is a rule of evidence which allows an agriculturist-defendant to prove (by evidence what otherwise will not be admissible) the real nature of the transaction. If it is treated as a rule of. evidence, the Court is bound to allow the party to lead evidence when the inquiry is held before it and when Section 10a is operative. The difficulty created by the interpretation of the word 'agriculturist' in Sawantrawa v. Giriappa has been removed by the decision in Ganpat v. Tulsi, The result therefore is that the appellants' contention that the respondent was not entitled under Section 10a to prove that the transaction of 1906 was a mortgage must be rejected. The appeal therefore fails and is dismissed with costs. .