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Gurunath Madhav Vs. Mallappa Shantappa - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal Nos. 425, 426 and 427 of 1945
Judge
Reported inAIR1950Bom340; (1950)52BOMLR288
ActsDekkhan Agriculturists' Relief Act, 1879 - Sections 10A; Evidence Act, 1872 - Sections 10A and 32
AppellantGurunath Madhav
RespondentMallappa Shantappa
Appellant AdvocateS.M. Shah, Adv. and ;G.A. Desai, Adv.
Respondent AdvocateA.A. Adarkar, Adv.
Excerpt:
dekkhan agriculturists' relief act (xvii of 1879), section 10-a - indian evidence act (i of 1872), section 32--whether provisions of indian evidence act as to hearsay evidence excluded by section 10-a of dekkhan agriculturists' relief act.;section 10-a of the dekkhan agriculturists' relief act, 1879, does not override the provisions of section 32 of the indian evidence act, 1872.;basappa v. tayawa (1929) 31 bom. l. r. 1266, referred to. - - sections 91 and 92 cannot be read divorced one from the other and they are both in regard to the exclusion of oral evidence in certain well-defined cases when written documents are entered into by and between the parties......on the ground that this being a transaction which the court was entitled to investigate under the dekkhan agriculturists' relief act, by virtue of the provisions of section 10-a, dekkhan agriculturists' relief act the provisions of section 82, evidence act, were excluded and, secondly, on the ground that even though section 82, evidence act, applied, the statements therein contained fell within section 32, clause (3), evidence act, and were thus admissible in evidence. it is necessary, therefore, to consider whether the provisions of section 32, evidence act, are excluded by section 10-a, dekkhan agriculturists' relief act. section 10-a, dekkhan agriculturists' relief act enacts :'whenever it is alleged at any stage of any suit or proceeding to which an agriculturist is a party that any.....
Judgment:

Bhagwati, J.

1. After setting out the facts of the case and holding that the transaction dated 30th September 1940, was really a transaction of sale and not a transaction of mortgage. His Lordship proceeded:] There are, however, a few further points in this connection advanced by Mr. Shah for Gurunath which we shall now consider. He contended that there was a letter dated 29th March 1940, which was addressed by Madhav to his brother Shivram in the course of which he made certain statements which if admitted in evidence would go to establish that this transaction was not a transaction of sale but was a transaction of mortgage. This letter was sought to be tendered in evidence before the learned trial Judge, but was rejected by him as not being admissible in evidence. It was contended before us that this ruling of the learned trial Judge was wrong and he ought to have really admitted this letter in evidence, firstly, on the ground that this being a transaction which the Court was entitled to investigate under the Dekkhan Agriculturists' Relief Act, by virtue of the provisions of Section 10-A, Dekkhan Agriculturists' Relief Act the provisions of Section 82, Evidence Act, were excluded and, secondly, on the ground that even though Section 82, Evidence Act, applied, the statements therein contained fell within Section 32, Clause (3), Evidence Act, and were thus admissible in evidence. It is necessary, therefore, to consider whether the provisions of Section 32, Evidence Act, are excluded by Section 10-A, Dekkhan Agriculturists' Relief Act. Section 10-A, Dekkhan Agriculturists' Relief Act enacts :

'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 such agriculturist or the person, if any, through whom he claims was a transaction of such a nature that the rights and liabilities of the parties thereunder are triable wholly or in part under the Chapter, the Court shall, notwithstanding anything contained in Section 92. Evidence Act, 1872, or in Section 49, Registration Act, 1908, or in any other law for the time being in force, have power to enquire into and determine the real nature of such transaction and decide such suit or proceeding in accordance with such determination and shall be at liberty, notwithstanding anything contained in any law as aforesaid, to admit evidence of any oral agreement or statement or unregistered document with a view to such determination and decision.'

2. It was contended by Mr. Shah that what was contained in this letter of Madhav addressed to Shivram was a statement of Madhav and that statement was admissible with a view to the determination and decision of the real nature of the transaction of 30th September 1940, notwithstanding anything contained in any law specified in the earlier part of the section. He contended that even though Section 92, Evidence Act and Section 49, Registration Act were in terms mentioned therein that did not mean that when the phrase 'in any law for the time being in force' was used in the Act it was meant to exclude the other provisions of the Evidence Act or the other provisions of the Registration Act, and therefore Section 32, Evidence Act being other law for the time in force apart from Section 92, Evidence Act, which has been mentioned therein, the operation of Section 32, Evidence Act, was excluded by the later provision contained in this section. In support of this contention of his he drew our attention to a decision of Madgavkar J., reported in Basappa v. Tayawa 31 Bom. L. R. 1266 : A. I . R 1930 Bom. 79. This decision was arrived at before the amendment was made in Section 10-A, Dekkhan Agriculturists' Relief Act, by incorporating therein 'or in Section 49, Registration Act, 1908.' In the absence of that provision, the Court in that case went on the basis that the document being one which required registration and not being registered could certainly not be admitted in evidence. If it was not admissible in evidence, Section 91, Evidence Act, was also a bar to the admissibility of oral evidence as regards the contents of that document, because if the terms of a contract, grant or disposition of property were reduced to writing, no oral evidence as to the contents of that document could be adduced having regard to the provisions of Section 91, Evidence Act. This was the point which came to be considered by Madgavkar J., in that decision and the learned Judge held that Section 10-A, Dekkhan Agriculturists' Relief Act, overrides not merely Section 92, but also, where necessary, Section 91, Evidence Act. The learned Judge's decision literally taken is capable of the interpretation which Mr. Shah wants to put upon it, but we do not agree that the learned Judge meant to lay down any such sweeping proposition as has been contended for by Mr. Shah. Sections 91 and 92 cannot be read divorced one from the other and they are both in regard to the exclusion of oral evidence in certain well-defined cases when written documents are entered into by and between the parties. Whatever was the extension of this principle extending the operation of Section 10-A, Dekkhan Agriculturists' Relief Act to Section 91, Evidence Act, we see no warrant for this proposition that even the rule as to the exclusion of hearsay evidence is get at naught when you have to determine the real nature of the transaction under Section 10-A, Dekkhan Agriculturists' Relief Act and that in order to admit in evidence a statement of a deceased person or a person who has absconded or cannot be found etc., within the meaning of the first part of Section 32, Evidence Act, you need not satisfy the various conditions which have been laid down in the later clauses of Section 32 of the Act. If Mr. Shah's argument is correct, when a Court sits to inquire into the transaction of an agriculturist, and determines the real nature of the transaction as it has taken place under Section 10-A, Dekkhan Agriculturists' Relief Act, it can brush aside all rules of evidence, it can introduce any amount of hearsay evidence howsoever flagrant and run a coach and four through all the provisions of the Evidence Act. We are not prepared to accept that argument. The provisions of Section 10-A, Dekkhan Agriculturists' Relief Act have got to be reasonably construed, and unless we are compelled to construe that all the provisions of the Evidence. Act including Section 32, thereof and the provisions of the Registration Act are set at naught, we do not think that we can accede to that argument. We are of opinion that Section 10-A, Dekkhan Agriculturists' Relief Act, does not override the provisions of Section 32, Evidence Act, and it was necessary if this letter addressed by Madhav to the plaintiff on 29th March 1942, was to be admitted in evidence that it ought to have been shown that it came within any of the clauses of Section 32, Evidence Act. [The rest of the judgment is not material to this report.]


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