BASAPPA GURUBASAPPA KITTUR Vs. TAYAWA VIRUPAXAPPA

JUDGEMENT

(1.) The question in this appeal is, whether the registered deed, Exhibit 45, dated June 15, 1907, is an ostensible sale or in reality a mortgage. There was also an unregistered document bearing the date previous to the registered document containing an agreement to reconvey. The plaintiff-appellant's case was that it was antedated as confirmation of the mortgage nature of the traneaction of June 13, 1907. The defendants-respondents did not admit the genuineness of this document and denied the mortgage. The trial Court held that this document Exhibit 46 did not require registration and was admissible. The Subordinate Judge thought that it was actually passed on the date prior to the ostensible sale and on the strength of Exhibit 46 and the oral evidence declared that the plaint transaction was a mortgage and as the result of making accounts under the Dekkhan Agriculturists Belief Act that the plaintiffs should pay Rs. 1,000 to the defendants, the representatives of the mortgagees.

(2.) In appeal, the learned Assistant Judge held that Exhibit 46 was not admissible for want of registration and that under Section 91 of the Indian Evidence Act, Section 10A of the Dekkhan Agriculturists Relief Act notwithstanding, the oral evidence of the mortgage nature of the transaction was excluded and the suit must fail. He, therefore, set aside the decree of the trial Court and dismissed the suit. The plaintiffs appeal.

(3.) The only questions in appeal are, whether Exhibit 46 is compulsorily registrable, and whether it is admissible even for a collateral purpose, such as the nature of the possession of the respondent; secondly, whether oral evidence to show the mortgage nature of the transaction is excluded under Section 91 of the Indian Evidence Act by reason of the existence of Exhibit 46 ?