1. The question in this appeal is, whether the registered deed, Exhibit 45, dated June 15, 1907, is an ostensible sale or in reality a mortgage. There was also an unregistered document bearing the date previous to the registered document containing an agreement to reconvey. The plaintiff-appellant's case was that it was antedated as confirmation of the mortgage nature of the traneaction of June 13, 1907. The defendants-respondents did not admit the genuineness of this document and denied the mortgage. The trial Court held that this document Exhibit 46 did not require registration and was admissible. The Subordinate Judge thought that it was actually passed on the date prior to the ostensible sale and on the strength of Exhibit 46 and the oral evidence declared that the plaint transaction was a mortgage and as the result of making accounts under the Dekkhan Agriculturists' Belief Act that the plaintiffs should pay Rs. 1,000 to the defendants, the representatives of the mortgagees.
2. In appeal, the learned Assistant Judge held that Exhibit 46 was not admissible for want of registration and that under Section 91 of the Indian Evidence Act, Section 10A of the Dekkhan Agriculturists' Relief Act notwithstanding, the oral evidence of the mortgage nature of the transaction was excluded and the suit must fail. He, therefore, set aside the decree of the trial Court and dismissed the suit. The plaintiffs appeal.
3. The only questions in appeal are, whether Exhibit 46 is compulsorily registrable, and whether it is admissible even for a collateral purpose, such as the nature of the possession of the respondent; secondly, whether oral evidence to show the mortgage nature of the transaction is excluded under Section 91 of the Indian Evidence Act by reason of the existence of Exhibit 46 ?
4. Both the lower Courts have found that Exhibits 46 and 45 are parts of the same transaction. It is nobody's case that Exhibit 46 was, as it purports to be, an agreement to reconvey, and therefore, under the decision of the Full Bench in Harkiaondas Bhagwavdas v. Bai Dhanu I.L.R(1926) . 50. Bom. 566. Exhibit 46 was compulsorily registrable and was inadmissible for want of registration.
5. The question whether it was admissible for a collateral purpose showing the nature of the respondents' possession is not free from difficulty. But for the view of their Lordships of the Privy Council in Varada Pillai v. Jeevarathnanimul I.L.R.(1919) Mad. 244 I should myself be inclined to the opinion that it was not so admissible. The question, however, is not of very much importance in this case. It rather turns on the second point, namely, whether Exhibit 46, by reason of Section 91 of the Indian Evidence Act and notwithstanding Section 10A, Dekkhan Agriculturists' Relief Act, excludes oral evidence of the mortgage nature of the transaction. For the appellant reliance is placed on the concluding words 'Notwithstanding anything contained in Section 92 of the Indian Evidence Act 1872 or any other law for the time being in force' in Section 10A of Dekkhan Agriculturists' Relief Act. The respondents relied on the remarks of Batchelor J. in Gopal v. Morar : (1913)15BOMLR555 and argued that Section 91 is not ejusdem generis with Section 92 and not being, like Section 92, expressly specified, must be excluded, Section 10A of the Dekkhan Agriculturists' Relief Act was expressly enacted in order to admit oral evidence as to the real nature of the transaction. Sections 91 and 92 of the Indian Evidence Act are successive sections in Chapter VI of the Indian Evidence Act 'On the exclusion of oral by documentary evidence' and are in fact illustrations of the principle that a document must speak for itself as to the agreement therein and excludes oral evidence of it. Section 91 excludes oral evidence of the contents of the document and Section 92, oral evidence of any variation of its terms. The view put forward for the respondents would treat the words 'or any other law for the time being in force' as mere surplusage. The case of Gopal v. Morar only decided that 'any other law for the time being in force' did not include the Indian Registration Act, Taking the object of Section 10A, namely, the decision as to the real nature of the transaction by admission of the oral evidence which would otherwise be excluded by the ordinary law, whether Section 92 or the like, I am clearly of opinion that the Tayawa legislature intended that Section 10A of the Dekkhan Agriculturists' Relief Act should override not merely Section 92 but also, where necessary, Section 91 of the Indian Evidence Act, Otherwise, the effect in such a case as the present would be that whilst the oral evidence would be admissible notwithstanding Exhibit 4% the registered deed of sale, oral evidence admissible under Section 10 A, Dekkhan Agriculturists' Relief Act, would be excluied under Section 91 of the Indian Evidence Act; in other words, Section 91 overrides Article 10 A of the Dekkhan Agriculturists' Relief Act and not vice versa, which the legislature could hardly be taken to have intended on the plain language of Section 10A, The view of the lower appellate Court was, therefore, in my opinion, wrong, when it held that oral evidence was excluded by reason of the existence of Exhibit 46. The general result is that although Exhibit 46 is inadmissible, such oral evidence is admissible by reason of Section 10A, which in a suit such as the present will be taken to override Article 91. In this view both the lower Courts are agreed that on the oral evidence the transaction was one of mortgage, and on taking accounts, the lower appellate Court held nothing is due to the respondents-mortgagees.
6. The decrees of the lower Courts are set aside and there will be a decree for possession in favour of the appellants and on the finding of the lower appellate Court that nothing is due, the appellants will be entitled to possession without any further payment.
7. Each party will pay its own costs in the trial Court. The respondents will pay the appellants' costs in this Court and in the District Court.