Basil Scott, Kt., C.J.
1. This suit was instituted by the plaintiff for redemption of certain property, which she alleged had been mortgaged by her husband to the defendants by a document, which though in form a sale was in reality a mortgage. In order to prove that she was a mortgagor it would be necessary for her to give evidence of the intention of the parties at the time of the transaction, namely in the year 1899, and to show 1 that that intention was not expressed in the deed. This she could not do under the provisions of Section 92 of the Indian Evidence Act. But if she was enabled to avail herself of the provisions of Section 10A of the Dekkhan Agriculturists' Relief Act she could give the proof that she desired.
2. The suit was brought in the Dharwar District, to which the provisions of the Dekkhan Agriculturists' Relief Act were extended in the year 1905. Section 10A enables the Court to inquire into the real nature of the transaction in issue, provided that the agriculturist, who was a party to the suit, claiming the benefit of the Act, was an agriculturist at the time of the transaction, (in this case, in the year 1899). It is argued that ' agriculturist ' in the proviso to Section 10A must not be read by the light of the statutory definition, but must be interpreted in the general and popular sense, and that in |hat sense the mortgagor was earning a living by agriculture, and therefore falls within the proviso.
3. The difficulty is that Section 2 is peremptory. It provides that in construing this Act, unless there is something repugnant in the subject or context, the following rule should be observed, namely, 'agriculturist' shall be taken to mean a person who by himself or by his servants or by his tenants earns his livelihood wholly or principally by agriculture carried on within the limits of a district or part of a district to which this Act may for the time being extend, or who ordinarily engages personally in agricultural labour within those limits.
4. It has been argued that if the statutory definition is applied to the proviso to Section 10A we shall have a result repugnant to the object of the section. That does not appear to us to be the case. The object of the section is to enable a party to the suit to prove, notwithstanding the words of the document, what the real intention was at the time when the document was executed. Therefore, one must have regard to the date of the transaction, and he can only be allowed according to the provisions of Section 10A to enjoy the Special benefit -Of the favoured class in disregarding the provisions of Section 92 of the Indian Evidence Act, if he belonged to the favoured class as defined by the Statute at the date of transaction. Therefore, in my opinion, the decision of the Subordinate Judge was correct and this appeal should be dismissed with costs. The case of Gopal v. Rajaram (1911) 14 Bom. L.R. 14 is cited as showing that this Court has applied the provisions of Section 10A to a transaction dated the 15th of June 1869 in the Broach D strict, to which the provisions of Section 10A. were only extended in January 1911, and to which the provisions of the Dakkhan Agriculturists' Relief Act were only extended long subsequent to 1869. We have good reason to believe that this proviso to she was not brought to the notice of the Court at the time of the hearing Of that case, and the judgment itself indicates that no point was based upon the proviso, for there is no reference to it throughout the judgment.
5. I concur.
6. I concur.