Lallubhai Shah, Kt., Ag. C.J.
1. The few facts which are necessary to understand the point which has been raised in support of this appeal are these. The plaintiff's father effected a mortgage on May 13, 1896, in favour of the defendant's father of the property in suit for Rs. 200. The plaintiff was a minor at the time of his father's death. The mother of the plaintiff as his guardian purported to sell the property on December 14, 1907, to the defendant's father for Rs. 220, of which Rs. 200 represented the amount of the mortgage of 1896. The plaintiff attained majority in June 1915; and more than three years after that lie tiled the present suit on November 16, 1919, to redeem the mortgage of May 12, 1896, and also the mortgage of December 14, 1907. He alleged that the transaction of December 14, 1907, was in reality a mortgage, and he claimed to be able to show that in virtue of his status as an agriculturist under the provisions of the Dekkhan Agriculturists' Relief Act. The defendant raised several defences, but as the trial Court found that the transaction of ] h07 was in fact a mortgage, it allowed redemption : and as nothing was found due on taking accounts a decree for possession was passed in favour of the plaintiff.
2. In appeal, before the learned District Judge, the only point raised was whether the transaction of December 14, 1907, for Rs 220 was a sale or a mortgage. The learned Judge found that it was in fact a mortgage.
3. In the appeal here it is urged that the plaintiff ought to have sued within three years of his attaining majority to set aside the sale of December 14, 1907, which was effected by his mother during his minority, and that a suit of this character which is substantially a suit to set aside the sale of 1907 is not competent under the Dekkhan Agriculturists' Relief Act. There can be no doubt that if it is necessary for the plaintiff to set aside the sale, his claim would be beyond time: see Fakirappa Limanna v. Lumanna Mahadu I.L.R. (1919) 44 Bom. 742: 22 Bom. L.R. 680. In that case the suit would not be within the scope of the Dekkhan Agriculturists' Relief Act, as the prayer for setting aside a sale would be necessary : see Musammat Bachi v. Bickchand (1916) 13 Bom. L.R. 56 and Chanaabhai v. Ganpati : AIR1916Bom199 . But the question is whether it is necessary for him to set aside this sale. If the transaction of 1907 was a sale, undoubtedly it would be necessary for him to set it aside before he could redeem the mortgage of 1896. But his case is that it is in fact a mortgage. He is entitled to make that case ; and for that purpose it is not necessary for him to set aside the sale. The present case differs in no essential particulars from the ordinary case in which a transaction is in form a sale between an agriculturist, and a purchaser from him, and in which he sues to redeem on the footing that it is in fact a mortgage. No setting aside of the sale is necessary in such a case, and no setting aside is necessary in the present case. He accepts the transaction of 1907 as a real transaction but he says that it is in fact a mortgage, and not a sale. He is entitled to do that in view of the provisions of Section 10A. of the Act. In my opinion, there is no substance in the point urged in support of this appeal, and it is not difficult to understand why Apparently it was not pressed before the lower appellate Court.
4. The only other point mentioned by Mr. Mulgankar in support of the appeal relates to the question of costs. It is urged that as the defendant is a mortgagee, he ought to get his costs according to the ordinary rule applicable to such a case. But this is not an ordinary case of a mortgagee, but a case in which the person, who is now found to be the mortgagee, claimed to be the purchaser ; and that is the real defence which the plaintiff had to meet. The defendant has failed to make out that plea. I do not think, therefore, that there is any reason to interfere with the order of costs in the trial Court I affirm the decree of the lower appellate Court and dismiss the appeal with costs.