HALLAPPA KALLAPPA Vs. IRAPPA GIRIMALLAPPA

JUDGEMENT

(1.) The plaintiff filed this suit for partition of certain lands and houses and moveables at Shirhatti in Athni Taluka. Defendants Nos. 1 to 3 were his bhaubands. The other defendants were alleged to be alienees of some of the lands. Defendant No. 4 did not appear at the trial. The suit was decreed. Thereafter defendant No. 4 got the decree set aside to the extent of the land Survey Number 156, which is said to have been transferred to him by the sale- deed Exhibit 115 in 1913. The plaintiff alleged that the transfer was really a mortgage, and that therefore, the land was still owned by his family and was partible.

(2.) In the trial Court the issue was whether the sale relied on by the defendant No. 4 was really a mortgage. It does not seem to have been suggested there that that issue could not be tried, or that Section 10 A of the Dekkhan Agriculturists Relief Act was not applicable to the case. But in first appeal that point was taken. The learned Judge said: The only question is whether the words whenever it is urged at any stage of any suit or proceeding in Section 10 A are to be so construed as to confine the meaning of the words any suit or proceedings specifically to a suit of the description mentioned in Section 3, Clauses (w), (y), and (z). Section 12 and Section 13 are in terms restricted to those suits, but Section 10A enacted in the same Chapter provides for any suit or proceeding. All that is necessary is that the transaction in issue should be of such a nature as to make it amenable to the operation of Secs.12 and 13. I see no reason for cutting down the scope of the words any suit or proceeding in Section 10A, and limiting it to the four corners of the suits provided for in Section 12. Section 10 A was, it would appear, deliberately given a wider scope. The words any suit have therefore to be read in their ordinary sense.

(3.) It seems to me that when the provisions of Section 12 were specifically limited to any suit of the description mentioned in Section 3, Clauses (w), (y) or (z), if it had been intended to limit the provisions of Section 10A to suits of that description, similar words would have been used instead of the words "in any suit or proceeding." But for the section to be applicable it is only necessary that an agriculturist must be a party to the suit, and that some transaction shall be in issue entered into by such agriculturist or the person, if any, through whom he claims, which shall be of such a nature that the rights and liabilities of the parties thereunder are triable wholly or in part under Chapter III of the Act. The illustration (a) makes this clear:-If a landlord sues for possession of land leased by him to an agriculturist, such suit is not one of the suits referred to in Section 3, Clauses (w), (y) and (z). In a suit on a lease if the defendant alleges that he mortgaged the land with possession to the lessor, who is entitled to its possession only as such mortgagee and not as owner, and asks that he may be allowed to redeem the mortgage without being ejected, then, there is a transaction in issue such as is referred to in Section 10A, and the Court may admit evidence on this allegation, and if satisfied that it is correct, may decline to eject the defendant as tenant, and allow the suit to be converted into one for redemption of the mortgaged property. Therefore the fact that there is some such transaction in issue in a suit to which an agriculturist is a party renders Section 10A applicable whatever the nature of the suit may be. Now it seems to me to be clear that this was a suit for partition which was resisted by the fourth defendant on the ground that a part of the property had been sold to him, so the Court was entitled to take evidence with regard to the real nature of the transaction, and decide whether or not, the transaction was a sale as contended for by the fourth defendant, or a mortgage as alleged by the plaintiff, and having found that it was not a sale but a mortgage, then the Court was entitled to treat the case as against the fourth defendant as a suit for redemption The Court apparently did not take that course left the mortgagee-appellant to his remedy by another suit. As the parties are agreeable now that we should pass orders as if the plaintiff was asking for a redemption of the mortgage from the fourth defendant, while dismissing the appeal by the fourth defendant against the decree for partition, we direct that the suit should be remanded to the trial Court for taking an account under Section 15B of the Dekkhan Agriculturists Relief Act of the mortgage Exhibit 115 of the year 1913. We dismiss the appeal with costs and remand the suit to the trial Court to pass a redemption decree. Costs in remand to be costs in the cause. Coyajee, J.