GAJANAN YESHWANT PATANKAR Vs. GOVIND RAMCHANDRA DESHMUKH

JUDGEMENT

(1.) This is an appeal from an order of the Assistant Judge of Thana, There was a mortgage made in 1921 by the plaintiffs and their father, and in 1927 they purported to sell the equity in the property to the mortgagee, who is defendant No 1. In this suit the plaintiffs claim that the sale-deed of 1927 was really a mortgage, as they are entitled to do under Section 10A of the Dekkhan Agriculturists Relief Act, 1879, and they ask to have an account of this mortgage taken under Section 15D of the Act. I apprehend if the 1927 sale-deed be really a mortgage, accounts under that deed will necessarily also involve account under the original mortgage, as the whole accounts between the mortgagor and mortgagee will have to be taken.

(2.) The trial Judge dismissed the suit on the ground that it did not lie, because the plaintiffs could not claim to treat the sale-deed as a mortgage, and at the same time exercise the privilege conferred by Section 15D by asking for accounts under that section. He relied on Krishna V/s. Shankar (1939) 41 Bom. L.R. 863. In that case there was a mortgage, and subsequently a sale of part of the equity of redemption to the mortgagee, and the suit was for an account under the original mortgagey and to set aside the sale-deed. It was held that the suit did not lie; but the whole basis of that decision, as I understand it, was that the sale-deed was to be set aside, and not merely to be treated as a mortgage.

(3.) The judgments in the lower Courts suggest that some difficulty is felt in reconciling the cases upon this subject, though the lower appellate Court correctly appreciated the law. It was pointed out in Savant V/s. Bharmappa (1933) 35 Bom. L.R. 604 that if a plaintiff is suing for a declaration that what purports to be a sale-deed is a mortgage, and for relief on that basis, he must, of course, prove the mortgage, if it is not admitted, and part of the proof of that mortgage may involve showing that what on the face of it looks like a sale-deed was in fact a mortgage, and it was there held that the plaintiff was entitled to prove that that which purported to be a sale-deed was a mortgage, and then to get an account on the basis that it was a mortgage. But if the suit involves setting aside a sale of the equity of redemption as a preliminary to getting an account on the original mortgage, no doubt, on the authorities, that cannot be done where the account is claimed under the special privilege conferred on agriculturists by Section 15D of the Dekkhan Agriculturists Relief Act. Krishna V/s. Shankar was a case of that nature. But the present case claims to treat the sale-deed as a second mortgage, and there is no objection to claiming an account on the original mortgage plus the second mortgage, which takes the form of a sale-deed. This case is clearly covered by the case of Savant V/s. Bharmappa (supra) as the lower appellate Court held, and I think, therefore, the appeal must be dismissed with costs. Weston, J.