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Shidvirappa Gurusatappa Chinvar and ors. Vs. Shivalingappa Basalingappa Chinwar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberAppeal No. 8 of 1949
Judge
Reported inAIR1951Bom137; (1951)53BOMLR539; ILR1952Bom54
ActsDebt Law; Mudhol State Agriculturists' Relief Act, 1940 - Sections 6 and 14; Dekkhan Agriculturists' Relief Act, 1879 - Sections 10A; Evidence Act; Code of Civil Procedure (CPC) , 1908
AppellantShidvirappa Gurusatappa Chinvar and ors.
RespondentShivalingappa Basalingappa Chinwar
Appellant AdvocateG.R. Madbhavi, Adv.
Respondent AdvocateN.S. Anikhindi, Adv. for ;K.G. Datar, Adv.
DispositionAppeal dismissed
Excerpt:
.....question was whether the agriculturist was entitled to avail herself of the provisions of section 10a of the dekkhan agriculturists' relief act, & the learned chief justice delivering the judgment of the full bench held that she was not entitled, & the view he took was that one must have regard to the date of the transaction & a person could 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, evidence act, if he belonged to the favoured class as defined by the statute at the date of the transaction......& requiring the court to permit oral evidence should be an agriculturist himself at the date of the suit, but he muat also be an agriculturist at the date when the transaction was entered into which he is challenging.2. now, the contention of mr. madbhavi is that the proviso refers to transactions entered into after the act came into force. mr. madbhavi says that as in this case the transaction was of 1937 before the act came into force, it is immaterial & irrelevant whether the pltf. was an agriculturist at that date or not. it is only if the transaction was entered into after 1-11-1940, that the proviso would apply & the court would have to investigate whether the party challenging the transaction was an agriculturist at the date of the transaction. now, looking to the plain.....
Judgment:

Chagla, C.J.

1. The pltf. filed a suit in the Court of the Second Class Subordirate Judge, Mudhol State, alleging that he was an agriculturist within the meaning of the Mudhol State Agriculturists' Relief Act & contending that a certain transaction he had entered into with the defts. on 12-8-1937, although ostensibly a sale, was in reality a mortgage & asking for accounts of this mortgage transaction. The trial Court held that the pltf. was not an agriculturist & dismissed his suit. In appeal the learned Dist. J. of Mudhol took a contrary view & held that the pltf. was an agriculturist & remanded the suit to the trial Court for disposal. It is from this decision that this appeal is preferred, & as the matter involved consideration of a rather important question of law, the matter has been referred to this Full Bench.

1a. The Mudhol State Agriculturists' Relief Act came into force on 1-11-1940, & the suit was filed on 20-9-1943. The suit is under Section 14 of that Act which enables an agriculturist whose property is mortgaged to sue for an account of the amount of principal & interest remaining unpaid on the mortgage & for a decree declaring that amount. 'Agriculturist' is defined in Section 2. The definition lays down that he must possess land used for agricultural purposes within the limits of the Mudhol State & cultivate such land personally or he ordinarily engages personally in agricultural labour, & his income from sources other than agriculture & manual labour should not ordinarily exceed 33 per cent. of his total income, Having filed the suit under Section 14, the pltf. wanted the benefit of Section 6 of that Act, A that section provides: '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 each agriculturist or the person, if any, through whom he claims was a transaction of such a nature that the rights & liabilities of the parties thereunder are triable wholly or in part under this chapter, the Court shall, notwithstanding anything contained in Sections 91 & 92, Evidence Act, 1872, or in any other law for the time being in force, have power to inquire into & determine the real nature of such transaction & decide such suit or proceeding in accordance with such determination & 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 & decision.' Therefore, the pltf.'s contention was that the transaction of 12-8 1937, was in reality a mortgage & he wanted liberty to prove the real nature of the transaction notwithstanding the bar contained in the Indian Evidence Act & other provisions of the law. There is a proviso to this section & the proviso is in these terms :

'Provided that such agriculturist or the person if any, through whom he claims was an agriculturist at the time of such transaction.'

The main section itself is complied with in the case of the pltf., because he was admittedly an agriculturist at the date of the filing of the suit. The difficulty arises with regard to the application of the proviso, & what we have to determine is whether he was an agriculturist at the time of the transaction which he has challenged, because Section 6 requires two conditions : Not only that the party challenging the transaction & requiring the Court to permit oral evidence should be an agriculturist himself at the date of the suit, but he muat also be an agriculturist at the date when the transaction was entered into which he is challenging.

2. Now, the contention of Mr. Madbhavi is that the proviso refers to transactions entered into after the Act came into force. Mr. Madbhavi says that as in this case the transaction was of 1937 before the Act came into force, it is immaterial & irrelevant whether the pltf. was an agriculturist at that date or not. It is only if the transaction was entered into after 1-11-1940, that the proviso would apply & the Court would have to investigate whether the party challenging the transaction was an agriculturist at the date of the transaction. Now, looking to the plain language used by the Legislature, no limitation or qualification is placed upon the expression 'at the time of such transaction.' Obviously, if we were to give this expression its natural meaning, it would mean 'at the time of such transaction whenever that transaction was entered into.' But Mr. Madbhavi suggests that we must qualify this expression because according to him the canons of construction require that we must not give a retrospective effect to a piece of legislation which affects or interferes with vested rights. Mr. Madbhavi is quite right, & if this particular piece of legislation we are dealing with did affect vested rights, then we must not give retrospective effect to such a piece of legislation unless the Legislature in clear & explicit terms did intend to affect vested rights. Now, what is the right that is being affected by Section 6 All that Section 6 does is to abrogate, as it were, certain provisions of the Evidence Act with regard to the production of evidence. The Evidence Act precludes the leading of oral evidence to contradict the terms of a written document & the more so when that document has taken the solemn form of a registered document. Section 6 permits a particular class of persons defined in the Act to override those provisions of the Evidence Act & lead oral evidence in order to satisfy the Court what the real nature of the transaction was, notwithstanding what form it took in the written document. It should be noted that the transaction itaelf is not being affected. The rights of the parties under the real transaction are in no way being interfered with. Only permission is being given to the agriculturist to satisfy the Court as to what the real transaction was. We could have understood if Section 6 in any way limited or qualified the rights of the mortgagee or vendee which had accrued to him under the transaction. But that is not the purpose of Section 6. Section 6, in our opinion, is purely procedural & it deals with rules of evidence. Can it then be said that in construing the proviso we must look upon it as affecting substantive rights &, therefore, refuge to put upon it a construction which may give it a retrospective effect It cannot be said--& Mr. Madbhavi has not urged it--that his client has any vested right in proce-dure. He has no vested right in certain rules of evidence being observed by a Court of law &, to repeat again, all that Section 6 does is to ask the Court to observe certain rules of evidence contrary to the Evidence Act where certain parties are before the Court.

3. It is then argued that if the definition of 'agriculturist' was not in force at the date of the transaction, it is difficult to understand how a party could be an agriculturist at the date of the transaction. It is pointed out that the definition only came into force when the Act came into force, viz., on 1-11-1940. How then it is asked, could the pltf. be an agriculturist on 12-8-1937, when he entered into the transaction in suit? That argument, in our opinion, does not present any difficulty because it is open to the Legislature to lay down a certain definition & to state that parties answering that definition at a particular time will be entitled to certain benefits. What the Legislature in the proviso does is to state that if a particular person answers the qualifications laid down in the Act which it has passed at the time when he entered into the transaction, then he would got the benefit provided in Section 6. There is one other aspect of the matter which also requires consideration. If Mr. Madbhavi was right in his contention, the result would be that all transactions prior to 1-11-1940, would not come within the purview of the Act to the extent that Section 6 may apply to them; in other words, the result would be that an agriculturist would not be able to challenge any transaction & get relief in respect of that transaction prior to 1-11-1940. It is perfectly true that when the language of a section is clear, it is not for the Court to consider what the object or the intention of the Legislature might have been. Bub when there is any doubt or ambiguity, it is perfectly competent to the Court to look at the preamble of the statute & to determine what was the object that the Legislature had in mind when putting the particular legislation on the statute book. Turning to the preamble of this Act, it states that it is expedient to relieve the agricultural classes in the Mudhol State from indebtedness. Therefore it was to indebted agriculturists that relief was sought to be brought by this Act. The object was not to relieve agriculturists who may have become indebted after the Act came into force; the object was to give relief to those who were already indebted; & certainly if an agriculturist was indebted by reason of a transaction which in reality was a mortgage & not a sale & his property had been taken away by the alleged vendee, then it is clear that the object of the Mudhol State Act was to give relief to such an agriculturist. From this point of view also, we feel that a restricted meaning should not be given to the expression 'at the time of such transaction' used in the proviso & that the expression used in it means 'at the time of the transaction whenever that transaction might have been entered into.'

4. There is a large volume of case law on this subject because to a large extent the Mudhol State Agriculturists' Relief Act has followed our own Dekkhan Agriculturists' Relief Act, & Mr. Madbhavi strongly relies upon the decisions of two Full Benches of our Court. As far as our Act is concerned, the definition is to be found in Section 2 which substantially corresponds to the definition contained in Section 2 of the Mudhol State Act; But there is a second definition in our Act which does not find a place in the Mudhol State Act. That is not an exhaustive but an inclusive definition & that definition is that the term 'agriculturist', when used with reference to any suit or proceeding, shall include a person who, when any part of the liability which forms the subject of that suit or proceeding was incurred, was an agriculturist within the meaning of that word as then defined by law. The reason for including this definition is obvious. It we turn to Chap. III in which Section 10A appears, which corresponds to Section 6, Mudhol State Act, it is necessary that the person wishing to take advantage of that section must be an agriculturist at the date of the suit. This inclusive definition seems to contemplate those cases where a person who was an agriculturist at the date of the transaction has ceased to be an agriculturist at the date of the suit, & the advantages of Section 10A are to be given not to all agriculturists who cease to be agriculturists at the date of the filing of the suit but only to a limited class who satisfy the definition of 'agriculturist' as then defined by law, i. e., defined by law at the date of the transaction. But with regard to the first definition it is clear that it would apply to those cases where a person was an agriculturist at the date of the filing of the suit. No difficulty would arise in that case & it would not be necessary for him to fall back upon the inclusive definition contained in Section 2 (2). As we shall presently point out, the decisions of this Court have taken the same view with regard to these two definitions contained in Section 2. With regard to the other sections, Section 15D corresponds to Section 14, &, as I said, Section 10A corresponds to Section 6.

5. Turning to the Full Bench decisions to which we have referred, the first is Sawantrawa v. Giriappa 15 Bom. L. R. 778. In that case the transaction was of the date 1899. It is necessary to consider the history of the application of our Act, Dekkhan Agriculturists' Relief Act. The Act was passed in 1879. Sections 1 & 11 came into force immediately. Sections 2 & 20 were applied first to Khandesh & then to other districts in between 1902 & 1905. And Section 10A was enacted in 1907 & applied in 1911. As we said before, the transaction in question before the Full Bench was in 1899 & the suit was filed on 16.3.1912, & the question was whether the agriculturist was entitled to avail herself of the provisions of Section 10A of the Dekkhan Agriculturists' Relief Act, & the learned Chief Justice delivering the judgment of the Full Bench held that she was not entitled, & the view he took was that one must have regard to the date of the transaction & a person could 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, Evidence Act, if he belonged to the favoured class as defined by the statute at the date of the transaction. Therefore, according to the Full Bench, it was only when the transaction was entered into after the statute was enacted that the party could avail himself of the benefits of Section 10A. With very great respect to the decision of the Full Bench, the only argument which seems to have been seriously considered in the judgment was that the person who claimed to be an agriculturist prior to the coming into force of the Act should be so determined in the usual & popular sense & not in the light of the definition given by the statute. That argument, with respect, was rightly rejected. If a party wishes to benefit himself by the provisions of Section 10A he has to establish his status as an agriculturist not in any other sense except the sense laid down in the Act. But then when the question came to be considered as to the date of the transaction, again with respect to the Full Bench, there does not seem to be any attempt at construing the language of the proviso. The real question which we thought it necessary to consider in thia judgment was not even looked at, viz., whether the proviso to Section 10A itself was purely procedural or it affected substantive rights, & the Full Bench seemed also to hive assumed, with respect, erroneously that the proviso qualified the expression 'at the time of such transaction' by the words as defined by law. With respect, there does not seem to be any warrant for reading into the plain language of the proviso a limitation or a qualification which the Legislature did not intend.

6. Coming to the later decision of the Full Bench in Ganpat v. Tulsi 26 Bom. L. R. 118, that was a case from Khandesh, the transaction was of the date 1905, & Sections 2 & 20 had been made applicable in 1902 & Section 10A in 1911, & the suit was filed in 1919, the suit being a suit for redemption under Section 150, & the same question arose as to whether the pltf. was entitled to the benefit of Section 30A. The only question that the Full Bench considered was whether the extension of Sections 2 & 20 of the Dekkhan Agriculturists' Relief Act to the District of Khandesh was sufficient to make a person an agriculturist within the meaning of Section 2, & that question the Full Bench answered in the affirmative. It was attempted to be argued that the pltf. was not entitled to the benefit of Section 10A because at the date of the transaction that section was not in force, and this argument was advanced on the strength of the decision in the earlier Full Bench in Sawantrawa v. Giriappa. Marten J., as he then was, refused to consider this question & left it to the Divisional Bench, which had referred this matter to the Full Bench, to decide this point. When the matter went back to Shah & Crump JJ., Shah J. took the view that notwithstanding the fact that Section 10A was not applicable at the date when the transaction was entered into the agriculturist was entitled to take the benefit of Section 10A, & Shah J. relied apparently on the principle of stare decisis because he says that (p. 137) :

'It is a matter of common knowledge that during fill these years after Section 10A was enacted & extended to the whole presidency, it has been applied to all transactions, whether entered into after that date or before that date, provided the party to the transaction was an agriculturist as defined by the Act, subject of course to the other provisions of the section, without any objection having been raised.'

And the learned Judge goes on to say that he has no hesitation in rejecting the argument which has been urged on behalf of the appellants in support of the view that Section 10A must be applied only to transactions which are entered into after the date on which that section waa enacted or extended to this particular district. Read in this bald form this opinion seems to suggest that the decision in Sawantrawa v. Giriappa was impaired if not completely overruled. But it must be conceded in fairness to Mr. Madbhavi who has pointed this out to us that in this particular case, although Section 10A was not applicable when the transaction was entered into, Section 2 had been made applicable, & therefore Mr. Madbhavi says that when you have a case where the definition section has come into force, then it may be urged with some force that a transaction entered into after Section 2 has come into force, although before Section 10A itself has come into force, may fall within the purview of Section 10A, And Crump J. in his concurring judgment makes it clear that he agrees with Shah J. because in this particular case Section 2 had been made applicable before the transaction was entered into. Bat with very great respect, it is difficult to understand on principle why a distinction should be made between cases in which transactions have been entered into before Section 10A was put in fores but subsequent to Section 2 being made applicable, & cases in which transactions were entered into before Section 2 was brought into force. It is difficult to understand why the mere fact that a defining section has come into force can possibly affect the position under Section 10A when that section itself was not in force. Either Section 10A is procedural, in which case it has a retrospective effect, or it affects substantive rights, in which case it should nob be given a retrospective effect. But the mere coming into force of a section which defines an agriculturist cannot make the transaction which is being challenged affect vested rights less than it would have done if the definition section had not come into force. Logically, Sawantrawa v. Giriappa, in the extreme view that it took may be supported. On the other hand, the other logical view, the one which we are proposing to take, is possible. But, with respect, the view taken in Ganpat v. Tulsi by Shah & Crump JJ. is not supportable on principle or authority, though in fairness to Shah J. at least it must be said that he was not called upon to consider the larger question which we are dealing with in this reference. It may be that Shah J. might have taken the same view & we are inclined to that opinion looking to the language in which his judgment is couched. 7. There are judgments by two single Judges which have considered this question. One is the judgment of Lokur J. in Tulsiram Motiram v. Shankar 46 Bom. L. R. 621. In that case Lokur J. was dealing with a case in which the transaction was entered into in 1902 in the District of Kolaba & he held that as no section of the Act was extended in 1902 to that district, the pre-decessors-in-title of the deft. could not have been agriculturists in 1902 & therefore the deft. was not entitled to the benefit of Section 10A. In coming to this conclusion Lokur J. really followed Ganpat v. Tulsi. Then there is a judgment of Kania J. as he then was, in Dayabhai Jivabhai v. Shana Bana 48 Bom. L. R. 627 & that learned Judge seems to have been inclined to take the same view as we are taking of Section 10A, because the learned Judge observes at p. 629 that--

'Section 10A is a rule of evidence which allows an agricul-turist-deft. to prove (by evidence what otherwise will not be admissible) the real nature of the transaction. If it is treated as a rule of evidence, the Court is bound to allow the party to lead evidence when the Inquiry is held before it & when Section 104 is operative.'

But it must be pointed out that in thia case also which was from Nadiad the date of the transaction was 1906, & although Section 10A was applied in 1911, Section 2 was already in force, though with respect the learned Judge has erroneously assumed that even Section 2 was not applicable to Nadiad at the date of the transaction. Even on that assumption the learned Judge came to the conclusion that Section 10A was applicable to the transaction. Therefore it is clear that Kania J. was of the same view which we are taking in this case.

8. Perhaps we might refer to Gopal v. Raja-ram 14 Bom. L. R. 14 which was overrulad by Sawantraua v. Giriappa. There the transaction was of 1869 and Bussell & Chandavarkar JJ. held thai the provisions of Section 10A being procedural were retrospective & applied to ponding proceedings. This decision was overruled because, with respect, the learned Judges were more concerned to consider whether an appeal was an extension of a suit or not because the Divisional Bench was asked in appeal to apply Section 10A & thev were more concerned with the jurisdiction to do so rather than in construing Section 10A itself & deciding whether Section 10A applied or not. The other case referred to at the bar was Mahadev v. Vinayak 11 Bom. L. R. 721. In that case the transaction was of the date 1871 & the party challenging the transaction was not an agriculturist when the suit was brought. He attempted to prove that he was an agriculturist at the date of the transaction & Batchelor J. with respect, rightly pointed oat that if he wanted to do so he had to satisfy the inclusive definition contained in Section 2(2) & as he could not establish that he was an agriculturist as then defined by law, he was not entitled to the benefit of Section 10A. The same view of the inclusive definition in Section 2(2) was taken in a later case reported in Damodar v. Manubai 11 Bom. L. R. 1143, by Chandavarkar & Heaton JJ, They were not considering Section 10A but they were considering the definition in Section 2(2) & Chandavarkar J. took the same view that the definition in Section 2(2) only came into play if a party to the proceedings was not an agriculturist.

9. In coming to the conclusion that we do, we are conscious that we are overruling Sawantrawa v. Giriappa because the point that we have now decided was never fully considered in that case. The point that arose for our determination was whether, when a transaction is entered into before any part of the Act came into force & if a party to that transaction was an agriculturist as defined by the Act, it would be open to him to avail himself of the benefit of Section 10A. In coming to the conclusion that we have, we do feel that we have helped the Legislature to carry out its object in putting thia remedial measure on the statute book. The benefit to the agriculturist would have been largely illusory if he could not have challenged transactions antecedent to the passing of thia remedial measure.

10. We, therefore, hold that the learned Dist. J. was right in holding that the pltf. was an agriculturists. The appeal is, therefore, dismissed with costs.


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