GULABCHAND RAYCHAND Vs. NARAYAN MOTIRAM TELI

JUDGEMENT

(1.) THIS is an appeal from a judgment of the First Class Subordinate Judge, Bijapur, disposing of two companion suits brought by the plaintiff-respondent. The plaintiff is or was an oil merchant. For the purposes of his trade he used to borrow money from the defendant-appellant shop. He became heavily indebted to the defendant who brought a suit on a promissory note and got the plaintiff's immoveable property in Bijapur attached before judgment. Then the parties came together and there was a settlement. The dispute is as to the nature of this settlement and what the intentions of the parties were, but there is no doubt about what they purported to do. The plaintiff executed two sale-deeds, exhibits 36 and 37, dated March 10 and 14, 1931, by which he purported to sell his properties in Bijapur out and out for Rs. 11,000 and Rs. 800 respectively. The deeds were registered on March 14 and they admittedly formed part of one transaction. On March 11 the plaintiff executed a rent-note agreeing to pay Rs. 73 a month as rent for the two properties excluding a portion of one which was leased to one Chhotu. The latter attorned to the defendant. The plaintiff brought separate suits in respect of the two sale-deeds praying for a declaration that the transactions were really mortgages and for accounts on that footing. The two suits were consolidated by consent and disposed of by one decree.

(2.) THE trial Judge held that the plaintiff was an agriculturist and that in any case the circumstances showed that the transaction was a mortgage. THE question of the amount due from the plaintiff to the defendant at the date of the sale-deeds was referred to arbitration. THE arbitrators found that the consideration for the two sale-deeds was Rs. 8,322-12-0 made up of Rs. 4,942-13-3 principal and Rs. 3,379-14-9 interest. THE trial Court accepted this figure, and after taking accounts up to the date of the suit, made a decree that the sum of Rs. 7,419 was due as a mortgage debt on the two deeds in suit up to the date of the decree and that the plaintiff should pay this amount by annual instalments of Rs. 900.

(3.) HOWEVER, in the circumstances of this case, it does not really make a great deal of difference whether he is held to be an agriculturist or not. If he had been an agriculturist, he might have taken advantage of Section 10-A of the Dekkhan Agriculturists' Relief Act and adduced oral evidence to show that there was an oral agreement between him and the defendant to treat the suit transaction as a mortgage. But, as a matter of fact, he has not adduced any evidence on this point beyond his own statement, and on that it is quite impossible to rely.