Stanley Batchelor, Kt., Acting C.J.
1. This appeal which is brought by the original defendants must, in our opinion, succeed, and as it succeeds upon a preliminary point, we make no pronouncement as to the merits of any part of the case. It is further to be observed that this preliminary point, upon which we are about to reverse the decree of the learned District Judge, goes to the root of this litigation, and to the jurisdiction of the Courts, so that we have felt bound to consider it. It will, however, be recognised that in allowing it to prevail, we are deciding the suit and the appeal upon a point which was not argued before the learned District Judge, and upon which the ruling authority was not cited to him.
2. The suit was filed by the plaintiffs under the Dekkhan Agriculturists' Relief Act as a suit for the redemption of mortgaged property within Section 3, Clause (z) of the Act. The whole question is whether the suit, properly considered, can fall within this description. In our opinion a reference to the pleadings shows that it cannot. After reciting a mortgage by the plaintiffs' father, and alleging payments of vasul thereafter, the plaint in paragraph 3 goes on to say that the Ist defendant with a view of fraudulently acquiring the lands of the plaintiffs obtained an out-and-out sale-deed from the plaintiffs' mother. In paragraph 4, the plaintiffs claim that that sale by their mother was unauthorized and was unlawful, and in this paragraph it is expressly said that the suit has been brought to get this deed cancelled. This is made equally clear in prayer A of the prayer clause, where we read the plaintiffs' prayers are as follows;-'that on deciding' (that is to say after deciding,) 'that whatever transaction may have been entered into between defendant No. 3 and defendant Nos. 1 and 2 is not binding on the plaintiffs, it should be held that all the lands have become free from any mortgage charge.' It is manifest, therefore, that on the plaintiffs' own showing this was not, a mere suit to redeem, but was a suit primarily for the setting aside of a fraudulent deed of sale, and, that being done, for the redemption of certain properties, including those thus released from the fraudulent sale. The difficulty of bringing such a suit within the description in Clause (z) of Section 3 of the Dekkhau Agriculturists' Relief Act was noticed by the defendants who in paragraph 13 of their written statement took the ground that the suit for redemption was not maintainable under the Act so long as the sale-deed was outstanding, and Issue No. 2 framed in the Court of trial seems to have been designed to meet this particular dispute. Thereafter, however, the Court seems to have lost sight of the point, probably because it was not argued and the authority deciding it was not noticed. The authority deciding it is the Privy Council judgment in Mi, Bachi v. Bickchand (1910) 13 Bom. L.R. 56, P.C.. We need not set out the facts in that litigation. It is enough to say that the more the report is studied the more closely do the facts in Mt. Bachi v. Bickchand appear to resemble those now before us. In the judgment Lord Macnaghten, after pointing out that the Dekkhan Agriculturists' Relief Act gave extraordinary relief in certain particular cases specified in the Act, observed that the only question was whether that suit was one in which special relief could be granted. His Lordship continues :-' In their Lordships' opinion it is not. In form it is a suit for redemption. In reality it is nothing of the kind. It is a suit to recover property of which the rightful owner has been deprived by fraud. That settles the case.'
3. Every word of this judgment is strictly applicable to the facts of the present appeal. The suit, though called a suit for redemption, was primarily designed for the setting aside of the deed of sale alleged to be fraudulent. That under the Privy Council ruling is not the sort of case which can be brought within the special categories of the Dekkhan Agriculturists' Relief Act. On this preliminary ground we are of opinion that the appeal must be allowed, and that the suit must be dismissed. We have fully considered Mr. Desai's application that he should be allowed to amend his plaint, and convert the suit into a suit for redemption under the ordinary law, We think, however, in view of the course which the litigation has taken, that it is not possible to accede to this application. For to grant it now would mean a new plaint followed by a new written statement and new issues. Much of the evidence on the record would be inadmissible by virtue of the exclusion of the Dekkhan Agriculturists' Relief Act, whereas a great deal of other fresh evidence would necessarily be introduced. We think, therefore, that our only course is to allow the appeal and dismiss the suit. We see no reason for departing from the ordinary rule as to costs, that is to say, the suit will be dismissed with costs throughout.