1. These are two companion appeals in which the plaintiffs are the same and the contending defendant is different. The point, however, is the same. It is whether the transaction in each case is a sale or a mortgage, and whether the transferee in each case is a benamidar for a third person. The plaintiffs being agriculturists, the suits were governed by Chap. III of the Dekkhan Agriculturists' Relief Act, 1879, under which it is open to the parties to lead oral evidence for proving that the transaction was a mortgage in spite of the provisions of Section 92 of the Indian Evidence Act. Both the lower Courts have held that the transaction in each case is a mortgage and not a sale, and that in each case the ostensible purchaser is a benamidar for one Keshav who is defendant No. 2. The decree for redemption has Been passed in the plaintiffs' favour after taking accounts under the Dekkhan Agriculturists' Relief Act.
2. It is urged by Mr. Desai for the appellants that it was not open to the lower Court to allow the plaintiffs to lead oral evidence in proof of their case of mortgage because the case does not fall under Chap. III of the Dekkhan Agriculturists' Relief Act. The argument is that this is not a pure suit for redemption to which the provisions of that chapter would apply, but a composite suit for a declaration that the defendant is a benamidar for another person and for redemption on the ground that the transaction is not a sale but a mortgage. Mr. Desai has relied upon two decisions in support of his argument. The first is a Privy Council case in Mt. Bachi v. Bikhckand. (1910) 13 Bom. L.R. 56. It is held that the special relief under the Dekkhan Agriculturists' Relief Act could not be granted in a suit which was in form a suit for redemption but in reality a suit to recover property of which the original owner had been deprived by fraud. That decision has been followed in Chandabhai v. Ganpati, : AIR1916Bom199 where the facts were similar. Mr. Desai concedes that these two cases are not on all fours with the present case, but he relies on the principle, which, according to him, they establish, that in order to get the benefit under Chap. III the suit must be for redemption only without other reliefs. I do not think, however, that such a general proposition was intended to be laid down. In both the cases certain properties were mortgaged. Thereafter they were sold to the mortgagee by a sale-deed. The suit was brought to redeem the mortgage after setting aside the sale as fraudulent. It was held that such a suit was not maintainable under the provisions of the Dekkhan Agriculturists' Relief Act, because it was not really a suit for redemption but was primarily designed for setting aside the deed alleged to be fraudulent. In the present case there were no two transactions, and there is no question of setting aside any deed. The plaintiffs' case is that the transaction in suit amounts to a mortgage and not a sale and the ostensible purchaser is only a benamidar for the real mortgagee. In my opinion, there is nothing in the Dekkhan Agriculturists' Relief Act which would prevent a plaintiff from seeking relief of that kind under Chap. III of that Act. The concession allowed under the Act is that in order to prove that the transaction is a mortgage and not a sale an agriculturist party can lead oral evidence notwithstanding Section 92 of the Indian Evidence Act. In order to prove the benami nature of the transaction there is no prohibition for leading oral evidence. The plaintiffs, therefore, do not get the benefit of leading oral evidence in proof of the benami nature of the transaction by suing under the Dekkhan Agriculturists' Relief Act for redemption of the mortgage. They do not seek to set aside any transaction before they can get relief for redemption. The suit is for redemption which involves the consideration as to what was the real nature of the transaction and who are parties to it. There is no prohibition for filing such a suit under the Dekkhan Agriculturists' Relief Act. The decision in Tarachand v. Bala : (1938)40BOMLR974 has no application to the facts of this case because there the question was entirely different. It was held there that it was not open to an agriculturist to sue for a declaration that a rent-note passed by him to the defendant was in reality a transaction of sale.
3. The other point urged on behalf of the appellant is that the findings arrived at by the lower Court are vitiated because it has relied upon certain irrelevant evidence and they are based on speculation as well as on certain inadmissible evidence. In my opinion, however, they are not so vitiated. About the benami nature of the transaction there is a finding of the lower Court that the consideration money has proceeded not from defendant No. 1 in each case but from Keshav, defendant No. 2. It is true that there is no direct evidence to prove that the consideration proceeded from Keshav, but from the circumstances and the account books which have been produced and which have been exhaustively discussed by both the lower Courts, they come to the conclusion that it probably came from Keshav. I do not think, therefore, that that finding is vitiated in law.
4. Then with regard to the case of mortgage it has been found that the price paid was so inadequate that it clearly suggested a mortgage rather than a sale, and in one of the cases the possession of the lands remained with the plaintiffs. It was open to the lower Court to come to that conclusion on that evidence as well as the surrounding circumstances, and there is no error of law in that finding also.
5. Mr. Desai has contended that the learned Judge has mixed up the question of burden of proof in each case, but as the lower appellate Court has remarked, the Court had to consider the evidence produced by both sides to decide what was the consideration in each case. Both parties have led evidence to prove their cases and the lower Courts have come to the conclusion; after appreciating that evidence. There is no question, therefore, of the finding being vitiated by any erroneous placing of the burden of proof.
6. The decision of the lower appellate Court in both the cases is correct and. must be confirmed. The appeals are dismissed with costs.
7. It appears that the trial Court has proposed to issue notices against defendants Nos. 1 and 2 for perjury inasmuch as they stated that they had no account books although on a search of their houses a number of account books had been found. No doubt the conduct of the defendants is reprehensible,, but I am told that although notices have been issued nothing further has been done. It is now more than four years after that order. Looking to this delay, the proceedings may well be dropped now.