GANGARAM ICHARAM Vs. BHIKASING NATHUSING

JUDGEMENT

(1.) The respondents filed Civil suit No. 169 of 1945 in the Court of the Joint Civil Judge, Junior Division, Bhusaval, claiming that a transaction effected by their father Nathusing on 30-4-1938 in favour of the petitioner, whereby lands S. Nos. 3/5A and 31/3/1 of the village Borkhede. Taluka Raver, were ostensibly sold, was in the nature of a mortgage and for accounts. The suit was transferred under section 19(b) of the Bombay Agricultural Debtors Relief Actm 1939, to the Board established in that behalf, and it was numbered as application No. 4374 of 1945. It was heard by the Civil Judge on whom the powers of the Board were conferred by the B. A. D. R. Act, 1947 with other applications in which the respondents were concerned. The Joint Civil Judge, Junior Division, Bhusaval by his order dated 28-6-1955 declared the impugned transaction to be in the nature of a mortgage, and directed the transferee Gangaram Ichharam to deliver possession of the lands to the respondents and to pay to the respondents mesne profits from the date of the application. Against that order an appeal was preferred to the District Court at Jalgaon. In appeal, the learned Assistant Judge confirmed the order passed by the trial Court in revision against the order passed by the District Court.

(2.) The question whether the transaction, dated 30-4-1938, was in the nature of a morgage is essentially a question of fact and the finding on that question by the Courts below is not liable to be challenged in this revision application. But Mr. Divekar, who appears on behalf of the petitioners contends that the Courts below were in error in awarding mesne profits from the date of institution of the debt adjustment proceeding against the petitioner. Mr. Divekar contends that the disputed transaction could be regarded as a mortgage from the date on which the award was made by the B. A. D. R. Court and the mortgagees' hability to pay mesne profits will arise only from that date and not anterior thereto. Mr. Divekar submits that the B. A. D. R. Act was passed with the object of relieving debtors of their indebtedness and that once the liability of a debtor under a disputed transaction creating a debt is regarded as discharged, it was not the intention of the Legislature to render the creditor liable to pay to the debtor any amount which he may be found liable on taking accounts under the special procedure prescribed by the B. A. D. R. Act. Therefore, Mr. Divekar contends that if under a transaction which is found to be in the nature of a mortgage on taking accounts nothing is due by the debtor at the date of the application, the mortgagee will not be required to account for the rents and profits received by him during the period that the application was pending in the Court of First Instance. In our view, these contentions cannot be accepted. By section 24 of the B. A. D. R. Act a Debt Adjustment Court is authorised to declare the true nature of a transaction by declaring it to be a mortgage though ostensibly in the form of a sale or of any other nature. the power conferred upon the Court under the B. A. D. R. Act is, however, a power to declare the true nature of a transaction, that is, to ascertain the true intention and agreement between the parties irrespective of the from in which the transaction is clothed and umhampered by any rules of evidence or other law. Section 24(1) of the B. A. D. R. Act, in so far as it is material provides:

(3.) Reliance was sought to be placed by Mr. Divekar upon an unreported judgment of Chief Justice chagla in Civil Revn. Appln. No. 151 of 1951 D/- 16-11-1951 (Bom). In that case, it is true that the learned Chief Justice took the view that only when the declaration is made under the B. a. d. R. Act that the transaction operates as a mortgage and, therefore mesne profits cannot be awarded from the date of the application but can only be ordered from the date of the award with respect, we are unable to accept that view. If the power as we have already observed under section 24 of the B. A. d R. Act conferred upon the Court is to declare the real nature of the transaction, the Court is not by adjudicating the true nature of a transaction converting a transfer in the nature of a sale or other transfer into a mortgage. The Court being authorised to declare the real nature of the transaction; the declaration, in our judgment, operates as from the date of the transaction.