1. The question in this appeal is, whether the plaintiffs Nos. 1 to 3 respondents are entitled to avoid the sale deed passed by them to the defendants Nos. 1 and 2 appellants and the defendants Nos. 8 and 4 respondents in 1912. Both the lower Courts have answered the question in the affirmative, holding that the sale deed in question, though ostensibly of the whole of a recognised portion of the Bhag, was, in reality, a sale deed of one-half, for half the recited amount, and the plaintiffs in reality retained possession of the other half themselves without receipt of the other half of the recited consideration. The defendants Nos. 1 and 2 appeal.
2. It is argued for the appellants that the sale deed in question, being on the face of it one for a recognised portion of the Bhag, does not offend against the provisions of the Bhagdari Act V of 1862, and that in any case the plaintiffs having taken advantage of the sale, should not be allowed to avoid it. For the respond' ents it is contended that the transaction in reality was an alienation of an unrecognised portion of the Bhag and must therefore be set aside.
3. The facts as found by both the lower Courts are as follows: Mohan the appellants Sonees were the mortgagees from the plaintiffs respondents. The latter brought a suit in redemption. Accounts were made up and the plaintiffs were declared entitled to redeem on payment of the amount by instalments. The mortgagors failed to pay the instalments. The mortgagees threatened to put up the property to sale and the mortgagors in order to retain possession of at least a portion, agreed to transfer the other portion to the mortgagees decree- holders for the decretal balance due. In order to avoid the provisions of the Bhagdari Act, the parties decided that the real sale of one-half should take the apparent form of a sale of the whole for double the appellants' decretal amount, the defendant No. 8 the eon of the plaintiff No. 1 and the defendant No. 4 the father-in-law of the other plaintiff being joined as purchasers. The plaintiffs, however, continued to remain in possession of their half. In May 1913 some unregistered documents were passed, followed a few days later by a document Exhibit 56, under which, the purchasers appellants agreed to reconvey to the defendants Nos. 3 and 4 respondents the portion of which the former were in possession on receipt of the price at the rate of Rs. 240 per acre.
4. Bombay Act V of 1862 has formed the subject of numerous decisions in this Court. The restriction on alienation of a portion is evidently found inconvenient by Bhagdars; and it is not uncommon to find that the same parties who had joined in an alienation contrary to the Act, subsequently come forward, when their purpose is served, to have the alienation set aside under the Act. However antiquated or inconvenient, the Act stands on the Statute Book and it is the plain duty of the Courts to give effect to its provisions. The object of the Act in express terms is to avoid dismemberment of the Bhag or of a recognised sub-division of it, the means being provisions such as as, 3 and 5, rendering alienation of a recognised portion unlawful. Reliance is placed for the appellants on Gulab Raiji v. Bai Tejbai (1918) 21 Bom. L.R. 707, as an instance of a liberal interpretation of the Act and a refusal by the Courts to set aside what was in terms an alienation of an unrecognised portion. The facts there are clearly distinguishable. The purchaser had already been in adverse possession of a portion of a recognised sub-division of a bhag. He obtained two sale deeds from two different persons in respect of the remaining portion of the recognised sub-division, Being himself in possession, he could easily have given the transaction the necessary legal appearance by means of a different conveyancing purchaser. The Court held that the effect Mohan of the sale deeds was in fact to bring the recognised portion Madgavkar J. of the Bhag together, and not to effect a dismemberment of it, 'and, regarding the substance of the transaction in that light, it declined to set aside the sale deeds. In so far as that case lays down any principle, it is that the Courts should look to the substance and not to the mere form of the transaction. And in any case, where the law such as Section 3 expressly declares certain transaction unlawful, the Courts not only may but must regard the reality and not the appearance of the iransaction in question. In the present case, for instance, had the agreement to reconvey Exhibit 56 been effected by the necessary payment by the plaintiffs and the necessary reconveyance, it might have been urged with aome reason that the appellants would not have been entitled to set aside such a reconveyance in favour of the plaintiffs respondents, inasmuch as the effect then would have been, as in Oulab Raiji's case, not to effect dismemberment but to bring about a reunion of the recognised portion of the bhag. That is not, however, the case and that is not the question on the present facts. We agree with the lower Courts that the transaction in reality was a sale of one-half of the recognised portion by the plaintiffs in favour of defendants Nos. 1 and 2 with a subsequent agreement to reconvey by the defendants Nos. 1 and 2 on receipt of Rs. 240 per acre. In this view the transaction was unlawful and the Courts are bound on the application of the plaintiffs to avoid it, even though the plaintiffs might have taken advantage of it for a period of very nearly twleve years and though the revenue authorities had apparently never intervened. At the same time, the lower Courts have considered these circumstances and, having regard to the equities, have ordered the repayment of the actual consideration to the appellants. To further relief than this they are not in our opinion entitled.
5. The appeal fails and is dismissed with costs.