MARTAND TRIMBAK GADRE Vs. AMRITRAO RAGHOJIRAO DAMALE

JUDGEMENT

(1.) The original plaintiff Raghoji Yeshvantrao tiled this suit in the year 1913 to redeem the land described in Schedule A to the plaint and to take possession thereof after taking accounts under the Dekkhan Agriculturists Relief Act, He alleged that the lands were mortgaged on June 9,1885, to the defendants father for Rs. 2,000 to 2,500 but that the defendants father taking advantage of the weakness of the plaintiff's intellect took a sale-deed from the plaintiff with regard to all his lands and Inami Haks agreeing to reconvene them when the amount due to him would be paid off. The defendant denied that the plaintiff was an agriculturist; and an issue was raised whether the plaintiff was an agriculturist. That issue was found in the affirmative. Before the suit came on for hearing the plaintiff died and his son Amritrao was placed on the record as his legal representative, An issue was then raised whether Amritrao was an agriculturist in 1916 -17 when he was put on the record A as a party, and it was found that he was an agriculturist in 1913 but was not one in 1916-17. The Subordinate Judge then said :-"This finding does not affect the suit except in one fact, namely, it only excludes some oral evidence that could not have been led except under Section 10A of the Dekkhan Agriculturists Relief Act. The finding arrived at by me does not prevent the plaintiff from proving a mortgage under the provisions of Section 92 of the Indian Evidence Act." Thereafter there was further delay owing to an allegation that there had been a compromise. The suit finally came on for hearing before Mr. Taskar, who held that the transaction dated January 9, was in the nature of a mortgage, that the consideration for the same was Rs. 1,300, principal and Rs. 200, interest on old debt; and that on taking accounts nothing was due to the mortgagee. So he passed a decree in favour of the plaintiff that the defendant should hand over possession of the lands in suit to the plaintiff free from the mortgage.

(2.) In appeal to the District Judge this finding was confirmed.

(3.) The first question is whether the present plaintiff who is not an agriculturist can take advantage of the fact that his father Raghoji who had filed the suit was an agriculturist, We are not aware of any direct authority on this question. But it seems clear that the privileges conferred upon an agriculturist by the Dekkhan Agriculturists Relief Act are personal; they are not such as can pass from one person to another either by assignment or by devolution. They are limited to him in that special character. " When his right as mortgagor passes into non- agriculturist hands, the special privilege previously annexed to the right perishes." (Amichand V/s. Kanhu (1884) P.J. 203).