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Pranjivndas Narsidas Vs. Mia Chand Bahadur - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Second Appeal No. 575 of 1919
Judge
Reported inAIR1921Bom426; (1920)22BOMLR1123
AppellantPranjivndas Narsidas
RespondentMia Chand Bahadur
DispositionAppeal dismissed
Excerpt:
dekkhan agriculturists' relief act (x vii of 1879), sex. 10a, '2nd provision-sale or mortgage - bona fide transferee for value without notice of less than twelve years' standing affected by section 10a.;the dekkhan agriculturists' relief act,, section 10a, '2nd proviso, does not protect a bona fide transferee for value without notice of the real nature of a transaction if he holds under a registered deed executed less than twelve years before the institution of the suit. - - it is quite possible from our point of view that the intention of the legislature might have been more clearly expressed. the fact that it is there, although it is not as explicit as it might be, seems to me to show quite clearly that the ordinary rule as to a purchaser for value without notice is abrogated......as a matter of fact tyeballi was a mortgagee or a purchaser. but the 2nd proviso to a 10a of the dekkhan agriculturists relief act does not protect a bona fide transferee for value without notice of the real nature of a transaction if he holds under a registered deed executed less than twelve years before the institution of the suit. it has been contended that we ought not to read the proviso in that way, and that it has not been directly enacted that a bona fide transferee shall not be protected until after twelve years from the date of his title deed. it is quite possible from our point of view that the intention of the legislature might have been more clearly expressed. but it is difficult to see why this proviso was inserted unless it meant that a bonafide transferee for value.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff sued for redemption under the Dekkhan Agriculturists' Relief Act alleging that the document dated 6th March 1911 passed by him to the father of defendants Nos. 1 and 3 to 8 for Its. 75 though in form a sale out and out was really in the nature of a mortgage. The defendant No. 9 obtained, on the 12th May 1915, a sale-deed from defendants 1 to 8 for Rs. 525 It has been found by both Courts that the sale-deed in favour of Tyeballi, the father of defendants 1 and 3 to 8, was really a mortgage. Accordingly a redemption decree was passed in favour of the plaintiff. The defendants Nos. 9 and 10 have appealed, and contend that the plaintiff ought not to have been allowed to redeem the mortgage of 1911 on the ground that defendants 9 and 10 were bona fide purchasers for value without notice from the heirs of Tyeballi.

2. The appellate Court seemed to be of the opinion that defendants 9 and 10 had notice. But except for the fact that Rs. 75 was mentioned as the consideration for the document of 1911, there was nothing that was brought to their notice which would put them on inquiry to ascertain whether as a matter of fact Tyeballi was a mortgagee or a purchaser. But the 2nd proviso to a 10A of the Dekkhan Agriculturists Relief Act does not protect a bona fide transferee for value without notice of the real nature of a transaction if he holds under a registered deed executed less than twelve years before the institution of the suit. It has been contended that we ought not to read the proviso in that way, and that it has not been directly enacted that a bona fide transferee shall not be protected until after twelve years from the date of his title deed. It is quite possible from our point of view that the intention of the Legislature might have been more clearly expressed. But it is difficult to see why this proviso was inserted unless it meant that a bonafide transferee for value without notice would only be protected if twelve years had expired from the date of the transfer. If that is not the meaning and the effect of the proviso, then there was no necessity whatever for its insertion. If the ordinary rule under Section 41 of the Transfer of Property Act applies, that a bona fide transferee for value without notice is protected, where the owner of the property can succeed in proving that the document which he executed to the transferee's vendors was a mortgage and not a sale-deed, then that rule would apply in spite of Section 10A of of the Dekkhan Agriculturists Relief Act, and a bona fide transferee would in all cases be protected. But apparently the object of the Legislature in enacting Section 10A of the Dekkhan Agriculturists' Belief Act was to protect the mortgagor and not the transferee, if the mortgagor was sufficiently diligent in seeking to redeem the property. In my opinion the appeal should be dismissed with costs.

Heaton, J.

3. I concur. The judgment of the first appellate Court is not to my mind altogether clear. It leaves me in doubt as to whether that Court really did find that the present appellant was a purchaser for value without notice. But I will assume for the purpose of this judgment that the appellant was a bona fide purchaser for value without notice, and that if the ordinary rule applied, i. e., the rule contained in Section 41 of the Transfer of Property Act, the appellant would be entitled to succeed. But I think that where Section 10A of the Dekkhan Agriculturists' Belief Act applies, Section 41 of the Transfer of Property Act ceases to have any application. It is replaced by the 2nd proviso to Section 10A. If that is not the result, I confess I cannot conceive why s 10A was ever enacted. The fact that it is there, although it is not as explicit as it might be, seems to me to show quite clearly that the ordinary rule as to a purchaser for value without notice is abrogated. I find nothing surprising in this for it has to be remembered that the rule in favour of a purchaser for value without notice is an exception to one of the fundamental rules of property, which is that the property belongs to its proper owner and cannot ordinarily pass away from its proper owner without the consent and active participation of that owner. But where you have an Act, such as the Dekkhan Agriculturists' Relief Act, which is intended to protect agriculturists, not only against the rapacity of money-lenders but also against adventitious circumstances which are likely to operate to the prejudice of an agriculturist on account of his ignorance, it is not, to my mind at any rate, in any way surprising to find that the rule which is legalised by Section 41 of the Transfer of Property Act is abrogated altogether. I agree, therefore, that this appeal must be dismissed with costs.


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