TULSIRAM MOTIRAM MARWADI Vs. SHANKAR NANA PATIL

JUDGEMENT

(1.) This appeal raises an interesting question regarding the application of Section 10A of the Dekkhan Agriculturists Relief Act, 1879, to a transaction of 1902, on which the Courts below have differed. The property and the parties come from the district of Kolaba. The property in suit originally belonged to three brothers Budhya, Ganpat and Nana.They executed a sale- deed in favour of one Mathuralal Girdhardas for Rs. 2,000 on May 29, 1902, purporting to convey it to him absolutely. On the same day the vendee Mathuralal passed a document agreeing to reconvey the property to the vendors on repayment of Rs. 2,000 and allowed them to remain in possession as his tenants. Mathuralal owed some money to the plaintiff and after his death the plaintiff obtained a money decree in Suit No. 32 of 1929 against his adopted son, his daughter and the executor of his will. In execution of that decree in darkhast No. 346 of 1935 the property in suit was attached and put to auction. The plaintiff himself purchased it with the permission of the Court on November 23, 1938. The property continued in the possession of the original vendors as tenants and the plaintiff obtained symbolical possession through Court on July 18, 1939. In the meantime defendant No. 1, who is the son of one of the vendors, Nana, made an application to the executing Court to set aside the attachment, but his application was rejected. The plaintiff thereafter gave a notice of eviction to the defendants and filed this suit to recover its possession from them, together with mesne profits and costs. The main contention of the defendants was that the sale of the property to Mathuralal in 1902 was really in the nature of a mortgage, and after paying the requisite Court-fees they asked for an account of the mortgage and for its redemption under the provisions of the Dekkhan Agriculturists Relief Act. The trial Court held that the deed of agreement of re-conveyance was not admissible in evidence for want of registration and that the defendants were not entitled to lead oral evidence to prove the real nature of the transaction under Section 10A of the Dekkhan Agriculturists Relief Act. The plaintiff's claim for possession and mesne profits was, therefore, decreed. But in appeal the learned Assistant Judge held that the defendants were entitled to claim the benefit of Section 10A of the Dekkhan Agriculturists Relief Act, and, therefore, he reversed the decree of the trial Court and remanded the suit for determining whether defendant No. 1's father was an agriculturist in 1902 and for a fresh trial of the question of mortgage and accounts in accordance with the provisions of Secs.10A, 12 and 13 of the Dekkhan Agriculturists Relief Act. It is from that order of remand that the plaintiff has now come in appeal.

(2.) The registered sale-deed of 1902 expressly conveys the property in suit to Mathuralal absolutely, and under Section 92 of the Indian Evidence Act, 1872, no oral evidence can be adduced to vary its terms except under certain circumstances, which are not alleged in this case. But the defendants want to avail themselves of the provisions of Section 10A of the Dekkhan Agriculturists Relief Act to adduce oral evidence to prove that the transaction which was expressed as a sale was in reality a mortgage. This departure from the strict provisions of Section 92 of the Indian Evidence Act is permitted to an agriculturist party to a suit to enable him to prove the real nature of the transaction provided that Such agriculturist or the person, if any, through whom he claims was an agriculturist at the time of such transaction.

(3.) Although Section 10A was enacted in 1907 and extended to the District of Kolaba in 1911, it is held in Ganpat Chandrabhan V/s. Tulsi (1923) I.L.R. 48 Bom. 214 to be retrospective in its application and its benefit extends to a transaction entered into before the enactment of the section, provided an agriculturist is a party to the suit and he or the person through whom he claims was an agriculturist at the time of the transaction. It is not disputed that the defendants are agriculturists at present, but it is contended that in 1902, when the transaction was entered into, neither they nor their predecessors-in-title could possibly be agriculturists as denned in Section 2 of the Dekkhan Agriculturists Relief Act. According to the first clause of that section : Agriculturist shall be taken to mean a person who by himself or by his servants or by his tenants earns his livelihood wholly or principally by agriculture carried on within the limits of a district or part of a district to which this Act may for the time being extend, or who ordinarily engages personally in agricultural labour within those limits.