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Tarachand Pirchand Marwadi Vs. Bala Sakharam Fad - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 701 of 1935
Judge
Reported in(1938)40BOMLR974
AppellantTarachand Pirchand Marwadi
RespondentBala Sakharam Fad
DispositionAppeal allowed
Excerpt:
dekkhan agriculturists' relief act (xvii of 1879), sections 3, 10a-suit by agriculturists-suit for declaration that rent-note is in nature of sale-evidence of contemporaneous oral agreement-admissibility of-maintainability of suit-scope of section 10a.; section 10a of the dekkhan agriculturists' relief act, 1879, which confers privileges exempting parties from the restrictions imposed by the ordinary rules of evidence as laid down in section 92 of the indian evidence act, 1872, must be strictly construed and must be limited to cases which are clearly covered by the provisions of the section. therefore the special privileges which section 10a confers on an agriculturist of alleging an oral agreement different from the written one evidenced by a document, in spite of the provisions of..........it is true that the relationship between the parties was that of a debtor and creditor when the suit transaction was entered into. but that does not by itself make section 10a applicable. the legislature has contemplated that the indulgence of adducing oral evidence to vary or contradict a written instrument should be enjoyed by agriculturists only in certain classes of suits and not to all suits to which agriculturists are parties. suits falling under section 3, clause (y) and (z), would clearly be suits where the agriculturist's contention is that the transaction is a mortgage and none other and suits under section 3, clause (w), would be suits for recovery of money on account between the parties. it is important to note that suits for rent are specifically included in section 3,.....
Judgment:

N.J. Wadia, J.

1. This appeal raises an interesting question of law under the Dekkhan Agriculturists' Relief Act. The respondents who are agriculturists brought a suit in the Court of the Second Class Subordinate Judge of Yeola for a declaration that a rent-note which had been passed by them to the defendant in the year 1927 for a period of eleven years was in reality a transaction of sale on payment of Rs. 3,300 at the end of eleven years. The plaintiffs' case was that the rent of Rs. 300 per year which was stipulated in the rent-note was really meant to cover annual instalments of Rs. 300 for eleven years ; and that there was a contemporaneous oral agreement that on payment of eleven annual instalments of Rs. 300 a sale-deed was to be executed by the defendant in favour of the plaintiffs. The trial Judge decreed the plaintiffs' suit holding that it came within the provisions of Section 10A of the Dekkhan Agriculturists' Relief Act; that it was therefore open to the plaintiffs to prove the contemporaneous oral agreement, and that they had proved such agreement. He therefore granted the declaration asked for. In appeal the First Class Subordinate Judge of Nasik confirmed the decree of the trial Court, the appellate Judge holding that the plaintiffs' suit though described in the plaint as one under Section 10A of the Dekkhan Agriculturists' Relief Act was really a suit under Section 42 of the Specific Relief Act for a declaration, but that the plaintiffs were entitled to the benefit of Section 10A of the Dekkhan Agriculturists' Relief Act. Both the trial and the appellate Courts have relied on the decision in Hallappa v. Irappa : (1922)24BOMLR406 for the view that the provisions of Section 10A were not restricted to suits of the description mentioned in Section 3, Clause (w), (y), or (z), of the Dekkhan Agriculturists' Relief Act.

2. The only point before us in this appeal is whether a suit of this description can be brought under Section 10A of the Dekkhan Agriculturists' Relief Act. Section 10A provides that whenever it is alleged at any stage of any suit or proceeding to which an agriculturist is a party that any transaction in issue entered into by such agriculturist or the person, if any, through whom he claims was a transaction of such a nature that the rights and liabilities of the parties thereunder are triable wholly or in part under this Chapter, the Court shall, notwithstanding anything contained in Section 92 of the Indian Evidence Act, 1872, or in any law for the time being in force, have power to inquire into and determine the real nature of such transaction and decide such suit or proceeding in accordance with such determination, and shall be at liberty, notwithstanding anything contained in any law as aforesaid, to admit evidence of any oral agreement or statement with a view to such determination and decision.

3. It is clear from the language of the section that it applies only to a transaction of such a nature that the rights and liabilities of the parties under it are triable wholly or in part under the Chapter in which Section 10A occurs, namely Chapter III. From an examination of the provisions of that Chapter it appears that only transactions falling under Section 3, Sub-clauses (w), (y) and (z) of the Dekkhan Agriculturists' Relief Act fall under Chapter III. Section 11 of Chapter III relates to suits of the description mentioned in Section 3, Clause (w). Section 12 relates to suit of the description mentioned in Section 3, Clause (to), (y) and (z). The other provisions of the Chapter deal with methods of taking accounts and with the rights of agriculturist mortgagors as regards redemption, instalments and accounts. There is no provision in the Chapter which deals with suits for rent. It is clear from the language of the plaint, and the fact is conceded by the learned advocate for respondent No. 2, that the suit is filed for a declaration that the transaction evidenced by the rent-note was a transaction of sale, and does not fall expressly within any of the provisions of Chapter III of the Dekkhan Agriculturists' Relief Act, or within Clause (w), (y) and (z) of Section 3 of that Act. It is true that Section 10A refers not merely to suits in which the plaint as filed expressly comes within the purview of Clause (to), (y) and (z) of Section 3, but also to suits in which it is alleged at any stage of the suit or proceeding that the transaction in issue was a transaction of such a nature that the rights and liabilities arising under it were triable under Chapter III. The learned Subordinate Judge says that if the defendant: had brought a suit for recovery of money due to him on the rent-note under Clause (x) of Section 3 of the Act against the present plaintiffs, it would have been, open to the plaintiffs to contend that the rent-note sued upon was intended, to operate as a sale. This view seems to me to be clearly wrong. If the defendant, the present appellant, had brought a suit on the rent-note, that: suit would certainly have been a suit under Section 3, Clause (x), of the Act, but it would not have been a suit wholly or partly triable under Chapter III of the Dekkhan Agriculturists' Relief Act. It would not, therefore, have been open to the plaintiffs to contend in that suit that the transaction was really one of sale and not a lease. The special privilege, which Section 10A confers on an agriculturist of alleging an oral agreement different from the written one: evidenced by a document, in spite of the provisions of Section 92 of the Indian Evidence Act, is restricted strictly to suits which fall under Chapter III and would not be available to parties whose suits do not fall within that Chapter. A provision like Section 10A of the Dekkhan Agriculturists' Relief Act which confers privileges exempting parties from the restrictions imposed by the ordinary rules of evidence as laid down in Section 92 of the Indian Evidence Act, must be strictly construed and must be limited to cases which are clearly covered by the provisions of the section. The plaintiffs' suit as framed clearly did not fall within the purview of Chapter III of the Dekkhan Agriculturists' Relief Act and therefore of Section 10A. Nor could the plea which the plaintiffs have urged have been raised by them under Section 10A even if they had been defending a suit brought by the present appellant on the rent-note.

4. The decision in Hallappa v. Irappa, to which both the Courts have referred., does not help the plaintiffs in any way. It was held in that case that Section 10A of the Dekkhan Agriculturists' Relief Act was not limited to suits mentioned, in Section 3, Clause (w), (y) and (z), and that it applied to every suit where an agriculturist was a party and the transaction entered into by such agriculturist was of such a nature that the rights and liabilities of the parties thereunder were triable wholly or in part under Chapter III of the Act. The latter part of the head-note makes it clear that Section 10A could only apply to transactions the rights and liabilities under which were triable wholly or in part under Chapter III of the Act. In that case the plaintiff had sued for partition of certain lands and houses. One of the lands sought to be partitioned was in the possession of defendant No. 4 who claimed to hold it as a vendee. The: plaintiff alleged that the transfer to defendant No, 4 was really in the nature of a mortgage and that therefore the land was still owned by the plaintiff's family and was liable to be partitioned. It was clear that the claim put forward by the agriculturist plaintiff was one which was covered by the provisions of Section 3, Clause (2), of the Dekkhan Agriculturists' Relief Act, and Section 12. The case is, therefore, clearly distinguishable from the present case in which neither the plaint as filed nor any claim which could have been put forward by the plaintiffs even if the defendant had sued them on the rent-note, could possibly have come under any of the provisions of Chapter III. The view taken by both the lower Courts appears to be clearly wrong. The plaintiffs' suit was not maintainable under the Dekkhan Agriculturists' Relief Act and it was not open to them to prove the alleged oral agreement.

5. The appeal will, therefore, be allowed, the decree of the lower appellate Court set aside and the suit dismissed with costs throughout.

Divatia, J.

6. I concur. The plaintiff sues to get a declaration that the-transaction in suit between the parties is in the nature of a sale and not a lease. He wants to prove it by adducing oral evidence to contradict the terms of the document purporting to be a rent-note. Being an agriculturist, he can only do so if the suit falls under Section 10A of the Dekkhan Agriculturists' Relief Act. Now, in order that a suit can come under that section, it is necessary that the transaction in dispute was of such a nature that the rights and liabilities of the parties thereunder were triable under Chapter III of that Act. The various sections under that Chapter make it clear that it is only those suits which are described in Section 3, Clause (w), (y) and (z), that would fall under this Chapter. That being so, the question is whether the transaction in the present suit as alleged either by the plaintiff or the defendant would fall under Clause (w), (y) and (2) of Section 3. Taking the suit as brought, the allegation of the plaintiff that the transaction is a sale does not bring it under any of these three clauses, and taking the defence also that the transaction is a lease, that also does not bring it under any of these three clauses. It, therefore, follows that the present suit does not fall under Section 10A. It is contended, however, that the Dekkhan Agriculturists' Relief Act is meant to give relief to poor agriculturists and to protect them as against their creditors. Now it is true that the relationship between the parties was that of a debtor and creditor when the suit transaction was entered into. But that does not by itself make Section 10A applicable. The legislature has contemplated that the indulgence of adducing oral evidence to vary or contradict a written instrument should be enjoyed by agriculturists only in certain classes of suits and not to all suits to which agriculturists are parties. Suits falling under Section 3, Clause (y) and (z), would clearly be suits where the agriculturist's contention is that the transaction is a mortgage and none other and suits under Section 3, Clause (w), would be suits for recovery of money on account between the parties. It is important to note that suits for rent are specifically included in Section 3, Clause (x), and there is nothing in the third Chapter of the Act which makes the special provisions of that Chapter applicable to suits falling under Section 3, Clause (x). It is, therefore, clear to my mind that where the dispute between the parties is whether the transaction is a lease or a sale, it cannot fall under Section 10A of the Act. It seems to me to be the object of the legislature, as contended on behalf of the appellant, that the Act was meant to give special relief to agriculturists in preserving or safeguarding the property which they had already got, but not in acquisition of property. What the plaintiff seeks to do here is in effect to invoke the aid of this Act not in preserving his property but in acquisition of a property on the allegation that the transaction entered into between him and the sowkar was one by which the sowkar had sold his property to him and not the one by which the property which originally belonged to him had been mortgaged by him to the sowkar and which the latter alleged to be a sale. On behalf of the respondent reliance has been placed upon a decision in Hallappa v. Irappa : (1922)24BOMLR406 . That suit was one for partition by an agriculturist on the basis that the property of which partition was sought belonged to the family of the plaintiff and that although it was ostensibly sold to some persons outside the family, the transaction was really in the nature of a mortgage and the plaintiff specifically sought to recover possession of his share in the property by partition after redeeming it from persons who were ostensible purchasers, but really mortgagees. That suit clearly fell under Section 3, Clause (z), of the Dekkhan Agriculturists' Relief Act, and hence it fell under the 3rd Chapter and therefore under Section 10A of the Act. There are, no doubt, observations which might lend colour to the view that Section 10A was not confined to the limited class of cases described in Clause (w), (y) and (z) of Section 3. But these observations were, in my opinion, obiter and not necessary for the decision arrived at. That decision, therefore, is not an authority for the proposition advanced by the plaintiff-respondent. I think, therefore, that the present suit does not, for the reasons that I have given above, fall under Section 10A of the Act and that, therefore, the plaintiff is not entitled to get the benefit of that section. I agree, therefore, that the appeal should be allowed.


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