GOPAL GHELA Vs. RAJARAM AMTHA

JUDGEMENT

(1.) Both the lower Courts have misunderstood the decisions of this Court on the question whether and when oral evidence is admissible to prove that what purports to be a deed of sale represents, according to the true intention of the parties, a transaction of mortgage. The effect of those decisions is that, where Section 10A of the Dekkhan Agriculturists Relief Act does not apply, such evidence is admissible, under proviso 1 to Section 92 of the Indian Evidence Act, only when the element of fraud or other similar element mentioned in the proviso exists to invalidate the deed. The Subordinate Judge, First Class, who decided this case on appeal, has relied in support of his view on some dicta in one of the judgments in Sangita v. Ramappa,(1909) I.R. 34 Bom. 59 without carefully noticing their context; and the result of the Subordinate Judge s decision is that he has treated the deed of sale as one of mortgage on the evidence of a contemporaneous agreement between the parties contradicting the terms of the deed. That is not the law laid down in Sangira v. Ramappa.

(2.) The decree, therefore, would have to be reversed and the suit for redemption brought by the respondent dismissed, unless we allow the contention of his pleader that he is at this stage entitled to rely on and invoke the aid of Section 10A of the Dekkhan Agriculturists Relief Act. That section was not in force in the District, from which this case comes, either when the suit was filed or when the appeal to the District Court was heard and decided. It has been applied to the District since the disposal of the appeal; and we are asked to confirm the decree on the ground of the section.

(3.) The question is whether in second appeal we have jurisdiction to give effect to the section, which is now part of the law of the District but which was not the law when the case was pending in either of the Courts below.