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Ratansi Jethabhai Bhat Vs. Balkisan Gangabakas Nandwani - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberAppeal from Order No. 28 of 1939
Judge
Reported inAIR1940Bom267; (1940)42BOMLR528
AppellantRatansi Jethabhai Bhat
RespondentBalkisan Gangabakas Nandwani
DispositionAppeal allowed
Excerpt:
.....of price by instalments-failure to pay instalments-suit by vendor to recover possession of lands-oral evidence by agriculturist to vary terms of agreement not admissible.; the plaintiff agreed to sell his land to defendants, who were agriculturists, for a price the amount of which was to be paid by annual instalments. the possession of the land was given to defendants on payment of the first instalment. it was stipulated that if there was failure in payment of two instalments, the plaintiff was to recover back possession of the land. the defendants having failed to pay two instalments, the plaintiff sued to recover possession of the lands. at the hearing, defendants sought to lead evidence, under section 10a of the dekkhan agriculturists' relief act, 1879, to vary the terms of the..........rs. 230 each. the trial court rejected the defendants' contention that they were entitled to lead oral evidence under section 10a of the dekkhan agriculturists' relief act, it also rejected their further contention that a notice was required to be given to them in any event. on appeal the lower appellate court came to the conclusion that section 10a of the dekkhan agriculturists' relief act governed the case and ordered a remand to take oral evidence as tendered by the defendants. the plaintiff has appealed to the high court.2. in my opinion the view of the lower appellate court, about theadmissibility of oral evidence, is incorrect. the nature of the transaction, as found in the written document, is a purchase by the agriculturists of certain fields. they agreed to pay the price in.....
Judgment:

Kania, J.

1. This is an appeal from the order of the Assistant Judge at Jalgaon. The plaintiff agreed to sell to the defendants certain lands in terms of a writing passed by the defendants on November 30, 1932. The lands are agricultural fields, and the defendants are agriculturists. The agreement was to sell the lands for Rs. 3,000, payable by six annual instalments of Rs. 500 each. The defendants paid the first instalment of Rs. 500 but failed to pay the two subsequent instalments. The result was that, in terms of the agreement, the plaintiff required the defendants to hand over the lands back to him. On their failing to do so, he filed the suit to recover back his possession. It is to be noticed that there was no conveyance in favour of the defendants from the plaintiff. In the trial Court the plaintiff succeeded. The defendants' contention was that although the writing contained a stipulation to pay the plaintiff Rs. 3,000 in six instalments the real agreement between the parties was that the purchase price was Rs. 1,750 payable as follows : Rs. 500 on the signing of the agreement and five subsequent annual instalments of Rs. 230 each. The trial Court rejected the defendants' contention that they were entitled to lead oral evidence under Section 10A of the Dekkhan Agriculturists' Relief Act, It also rejected their further contention that a notice was required to be given to them in any event. On appeal the lower appellate Court came to the conclusion that Section 10A of the Dekkhan Agriculturists' Relief Act governed the case and ordered a remand to take oral evidence as tendered by the defendants. The plaintiff has appealed to the High Court.

2. In my opinion the view of the lower appellate Court, about theadmissibility of oral evidence, is incorrect. The nature of the transaction, as found in the written document, is a purchase by the agriculturists of certain fields. They agreed to pay the price in instalments mentioned in the agreement. On their failure to pay the instalments the vendor filed the suit to recover back the possession. The short question therefore is whether such a transaction falls within the scope of Section 10A of the Dekkhan Agriculturists' Relief Act.

3. Under Section 10A it is provided (omitting unnecessary words)

Whenever it is alleged at any stage of any suit or proceeding to which an agriculturist is a party that any transaction in issue... was a transaction of such a nature that the rights and liabilities of the parties thereunder are triablewholly or in part under this Chapter, [Chapter III], the Court shall, notwithstanding anything contained in Section 92 of the Indian Evidence Act,... have power to inquire into and determine the real nature of such transaction and decide such suit.

4. Chapter III contains Section 12, which alone is relevant to be considered inthis case. It runs as follows :- 'In any suit of the description mentioned in Section 3, Clause (w), inwhich the defendant or any one of the defendants is an agriculturist, and in any suit of the descriptions mentioned in Section 3, Clause (y) or Clause (2), the Court, if the amount of the creditor's claim is disputed, shall examine boththe plaintiff and the defendant...and shall inquire into the history and merits ofthe case... with a view to ascertaining whether there is any defence to the suit onthe ground of fraud. . .and, secondly, with a view to taking an account betweensuch parties in manner hereinafter provided.'

5. Section 3 (w), which is the only sub-Section relevant here, runs (omitting the unnecessary words) as under :

Suits for the recovery of money alleged to be due to the plaintiff

* * * * *on a written or unwritten engagement for the payment of money not hereinbefore. provided for.

On behalf of the defendants it was contended that it is the duty of the Court first to determine the nature of the transaction and next to find whether the liability of the defendants even in part was triable under the third chapter i.e. covered by Section 3(W). It was contended that the Court was not bound to look to the actual frame of the suit but must look at the transaction included in the suit to find out whether the case was covered by Section s 10A, 12, and 3(w) or not. In my opinion these Section s give special rights to agriculturists which are not enjoyed by ordinary citizens. Being exempting Section s the liability covered by the ordinary laws of the land should be shown to be expressly excluded by the plain terms of these Section s; in default the laws of the land must govern the transaction. The Court has to determine the nature of the transaction and find out whether the liability, even in part, has to be determined under the third chapter. Section 12 begins with the words ' In any suit of the description mentioned in Section 3, Clause (w). . .' The later words ' if the amount of the creditor's claim is disputed ' also indicate that the suit must be one to recover money. That is the nature of the suit indicated in Section 3(w), in terms, and is further emphasized by the words of Section 12. Unless therefore the suit itself is one to recover money the case will not fall under Section 3(w). I am unable to read the three Section s together as meaning that oral evidence is permitted to be led in every case in which an agriculturist is a party and contends he is liable to pay a smaller amount than what is mentioned in a written document, when the plaintiff's suit is not to recover money. There is nothing to justify such a wide construction of those Section s. I find that reasoning on the same lines was accepted in Tarachand v. Bala : (1938)40BOMLR974 .

6. The lower appellate Court has tried to distinguish that case. It has observed that the land originally belonged to defendant No. 2. I am unable to appreciate what follows from that fact. It is not suggested in the judgmentof the lower appellate Court that there was any doubt about the transfer of ownership from defendant No. 2 to the plaintiff. The Assistant Judge has further stated as follows :-

Considering the sale-deed executed by defendant No. 2 in favour of the plaintiff in respect of the plaint property as well as the acreage and assessment of the land and other evidence in the case the Court will have to arrive at a conclusion whether the oral agreement set up by the defendants is true or not.

I fail to see the relevancy of the sale-deed executed by defendant No. 2 in favour of the plaintiff as no case of fraud or undue influence in respect of that transaction is mentioned or suggested in the pleadings or evidence at any stage. In my opinion a transaction of the type contained in the agreement of sale in this case is outside the scope of Section 10A, when the suit is to obtain back possession of the property on the ground that the transaction had fallen through. This is not a suit to recover the purchase price or to recover any amount alleged to be due under a written agreement. The result is that the appeal is allowed, the order of the lower appellate Court is set aside and the matter is remanded back to the lower appellate Court for disposal on merits on the footing that no oral evidence to alter the terms of the written document is admissible. Respondents will pay the costs of this appeal.


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