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Bhukhandas Valabdas Vs. Chhaganlal Dayaram - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 20 of 1942
Judge
Reported inAIR1944Bom32; (1943)45BOMLR854
AppellantBhukhandas Valabdas
RespondentChhaganlal Dayaram
DispositionAppeal dismissed
Excerpt:
.....who wants to take the benefit of the section must himself be an agriculturist or must be a party to the transaction.;gautam jayachand v. malhari (1916) i.l.r. 40 bom. 397 : s.c. 18 bom. l.r. 247, referred to.;gangadhar kashinath v. dattatraya vishvanath (1940) 43 bom. l.r. 341, holleppa kallappa v. irappa giri mallappa (1922) i.l.r. 46 bom. 843 : s.c. 24 bom. l.r. 406, and swantrava v. giriappa fakirappa (1913) i.l.r. 38 bom. 18 : s.c. 15 bom. l.r. 778, explained. - - 2 and 3 had not been joined as parties, the suit would not have been defective and would not have failed for non-joinder of parties, and not that they are not proper parties. 1 and 4, they might as well have supported the plaintiff's claim that the sale was really a mortgage. in my opinion that contention is not..........to another by assignment or by devolution. after the death of the plaintiff who had brought the suit, no agriculturist remained a party to the suit. hence evidently section 10a could not be availed of by his son who was not an agriculturist.6. on the other hand the ruling in gautam jayachand v. malhari i.l.r. (1916) 40 bom. 397 shows that section 10a is sufficiently wide to be applicable to cases of the present nature. in that case one achyut executed a sale-deed in favour of the plaintiff and on the same day the plaintiff leased the land to the defendant's father on a rent-note. when the plaintiff sued the defendant to recover possession of the land on the strength of the rent-note, the defendant contended that the plaintiff was only a benamidar and that the lease was not intended to.....
Judgment:

Lokur, J.

1. This appeal raises an important question under Section 10A of the Dekkhan Agriculturists' Relief Act, 1879. The land in suit belonged to Lallu Naran, the father of defendants Nos. 2 and 3, who passed a sale-deed in favour of defendant No. 4 on June 22, 1928, purporting to convey the land to him absolutely for Rs. 1,000. Defendant No. 4 then sold it to defendant No. 1 for the same amount on December 17, 1936, and at present it is in defendant No. 1's possession. In the meantime the plaintiff obtained a money decree against defendants Nos. 2 and 3 for Rs. 776 in Suit No. 305 of 1935, and in execution of that decree he got the judgment-debtors' equity of redemption in the land in suit attached, alleging that the sale by their father in favour of defendant No. 4 was intended to be really a mortgage. In Miscellaneous Application No. 110 of 1937 defendant No. 1 objected to the attachment and got the attachment raised. The plaintiff then filed this suit under Order. XXI, Rule 63, Civil Procedure Code, 1908, for a declaration that the transaction of sale of 1928 in favour of defendant No. 4 was really a mortgage, that the equity of redemption still vested in defendants Nos. 2 and 3 and that it was liable to be attached and sold in execution of his money decree against them. Both the Courts below held that the transaction was really a mortgage and decreed the plaintiff's claim. An objection was raised on behalf of the defendants that no evidence could be adduced to prove that the transaction evidenced by a registered sale-deed was not what it purported to be. The trial Court held that the plaintiff who was not a party to the transaction was not debarred by Section 92 of the Indian Evidence Act, 1872, from leading evidence to prove its real nature. The lower appellate Court held that the bar of Section 92 was removed by Section 10A of the Dekkhan Agriculturists' Relief Act, as one of the parties to the suit was an agriculturist. All the defendants, including defendants Nos. 2 and 3, contended that the transaction was an out and out sale, and the question raised in this appeal is whether evidence can be adduced to prove that it was not a sale but a mortgage.

2. It is admitted that the plaintiff and defendants Nos. 1 and 4 are not agriculturists and that defendant No. 2, the son of the original owner, is an agriculturist. Defendant No. 3 is described in the plaint as a minor without any occupation. Mr. Pochaji for defendant No. 1, who is the appellant in this Court, contends that the plaintiff cannot get the benefit of Section 10A of the Dekkhan Agriculturists' Relief Art, as this is not a suit falling within Chapter III of the Act. But as held in Holleppa Kallappa v. Irappa Giri Mallappa I.L.R. (1942) 46 Bom. 843 : 24 Bom. L.R. 406 S.C. the provisions of that section are not limited to suits of the description mentioned in Clause (w), (y) or (z) of Section 3 of the Act, but apply to all suits to which an agriculturist is a party and in which there is in issue some transaction entered into by such agriculturist or a person, if any, through whom he claims, which is of such a nature that the rights and liabilities of the parties thereunder are triable wholly or in part under Chapter III of the Act. The three essentials required by that section are that the transaction must be entered into by an agriculturist or a person through whom the agriculturist claims, that the transaction must be of such a nature that the rights and liabilities of the parties under that transaction are triable under Chapter III, and that one of the parties to the suit must be an agriculturist. The opening words of the section are that it must be alleged at any stage of any suit or proceeding to which an agriculturist is a party, that such a transaction was of the nature specified. It does not say that the party to the transaction must make such an allegation. It is not, therefore, necessary that the plaintiff who wants to take the benefit of the section must himself be an agriculturist or must be a party to the transaction. Defendant No. 2, whose father was a party to the transaction, is an agriculturist. But it is argued that defendants Nos. 2 and 3 have been needlessly impleaded as parties, and that if their names are struck out as unnecessary, then no other party to the suit is an agriculturist. It cannot be said that the plaintiff was wrong in joining defendants Nos. 2 and 3 as parties to the suit. It is true that in Ghasi Ram v. Mangal Chand I.L.R. (1905) All. 41 it has been held that where a decree-holder brings a suit against a successful claimant to establish that certain property belongs to the judgment-debtor and that he is entitled to bring it to sale in execution of his decree, the only person against whom he claims relief is the successful claimant and that the judgment-debtor is not a necessary party to such suit. This only means that if defendants Nos. 2 and 3 had not been joined as parties, the suit would not have been defective and would not have failed for non-joinder of parties, and not that they are not proper parties. In fact they are interested in the result of the suit and their presence on the record will avoid multiplicity of suits. Instead of joining hands with defendants Nos. 1 and 4, they might as well have supported the plaintiff's claim that the sale was really a mortgage. Whatever stand they may choose to take, there is no doubt that they are proper parties, and it cannot be said that the plaintiff has purposely or wantonly joined them in order to claim the benefit of Section 10A of the Dekkhan Agriculturists' Relief Act.

3. Several cases were cited to show that the benefit of Section 10A cannot be claimed by one who is not a party to the transaction and who is himself not an agriculturist. But every case was decided on its own facts.

4. In Amichand v. Kanhu Mahadu (1884) P.J. 203 the plaintiff who brought a suit for redemption under the provisions of the Dekkhan Agriculturists' Relief Act had purchased the equity of redemption from the mortgagor who was an agriculturist, but, as the plaintiff himself was not an agriculturist, it was held that he could not get the benefit of the provisions of the Act. In that case the provisions of Section 10A had not to be considered. The plaintiff claimed the benefit of Sections 12 and 13 and the benefit under those sections can be available only to an agriculturist who wants an account of the mortgage to be taken.

5. In Marland v. Amritrao : AIR1925Bom501 the plaintiff, who was an agriculturist, claimed the benefit of Section 10A and sought to lead evidence to prove that the sale-deed passed by him was intended to create only a mortgage, but the plaintiff died during the pendency of the suit and his son who was brought on record as his legal representative was not an agriculturist, and it was held that the privileges conferred upon an agriculturist are personal and cannot pass from one person to another by assignment or by devolution. After the death of the plaintiff who had brought the suit, no agriculturist remained a party to the suit. Hence evidently Section 10A could not be availed of by his son who was not an agriculturist.

6. On the other hand the ruling in Gautam Jayachand v. Malhari I.L.R. (1916) 40 Bom. 397 shows that Section 10A is sufficiently wide to be applicable to cases of the present nature. In that case one Achyut executed a sale-deed in favour of the plaintiff and on the same day the plaintiff leased the land to the defendant's father on a rent-note. When the plaintiff sued the defendant to recover possession of the land on the strength of the rent-note, the defendant contended that the plaintiff was only a benamidar and that the lease was not intended to create a tenancy. He was allowed to lead evidence to prove the real nature of the transaction under Section 10A of the Dekkhan Agriculturists' Relief Act. Scott C.J. observed that the nature of the suit should not be determined by the frame of the plaint, but by the allegations of the parties which raised the question of mortgage or no mortgage, and it was held that although the saledeed was in favour of the plaintiff and the plaintiff had paid the consideration for it, yet the defendant was the real purchaser and the lease was really a mortgage in favour of the plaintiff for the amount of the consideration and the defendant was the real owner having the equity of redemption.

7. In Gangadhar Kashinath v. Dattatraya Vishvanath (1940) 43 Bom. L.R. 341 the headnote says that a plaintiff who invokes the Court's jurisdiction under Section 10A of the Dekkhan Agriculturists' Relief Act, must be an agriculturist within the meaning of Section 2 of the Act at the date when the suit is instituted. That does not mean that the benefit of Section 10A is available only to a plaintiff who is an agriculturist. What was decided in that case was that the agriculturist party whose transaction is sought to be varied by other evidence must be an agriculturist within the meaning of Section 2 of the Act at the date when the suit is instituted. In this case defendant No. 2 who claims through the party to the transaction was an agriculturist at the date of the suit. It is not necessary that the plaintiff who wants to prove the real nature of the transaction should also be an agriculturist.

8. In Holleppa Kallappa v. Irappa Giri Mallappa I.L.R. (1922) 46 Bom. 843 the suit was one for partition of certain lands, and one of the lands sought to be partitioned had been transferred by the plaintiff and the father of defendants Nos. 1 to 3 to defendant No. 4, and it was held that the question whether the transaction was really a mortgage could be gone into in such a suit under Section 10A. Coyajee J. observed (p. 847) :-

The contention is that the operation of Section 10A of the Deccan Agriculturists' Relief Act should be confined to that limited class of suits which is described in Section 3 of the Act, whereas the present suit being a suit for partition of certain properties does not fall within that class. In my opinion that contention is not well founded. The material words of the section are 'at any stage of any suit or proceeding to which an agriculturist is a party'. These words must be given their ordinary and natural meaning, and the Legislature must be taken to mean what it plainly expresses.

9. In Swantrava v. Giriappia Fakirappa I.L.R. (1913) 38 Bom. 18 it was observed that the object of Section 10A is to enable a party to the suit to prove, notwithstanding the words of the document, what the real intention was at the time when the document was executed and that regard must be paid to the date of the transaction, and an agriculturist can only be allowed to enjoy the special benefit of the favored class in disregarding the provisions of Section 92 of the Indian Evidence Act, if he belonged to the favored class as defined by the statute at the date of the transaction. The question in that case was whether the party who executed the document should be an agriculturist at the date of the transaction or whether it was enough if he was an agriculturist at the date of the suit, and it was held that he must have belonged to the favored class at the date of the transaction. But it does not mean that a party to a suit, who is not a party to a transaction, cannot get the benefit of Section 10A to prove the real nature of the transaction, though it was entered into by an agriculturist and though one of the parties to the suit is an agriculturist.

10. It is true that the object of the Act is to benefit the agriculturist class, and even in this case, if the sale be held to be really a mortgage, the agriculturist defendants Nos. 2 and 3 are bound to be benefited by that finding, since they will have some interest left in the property which they are alleged to have absolutely alienated to defendant No. 4. It is true that the plaintiff also will be benefited by such a finding, since he can attach the equity of redemption and get it sold for the satisfaction of his decree. But thereby the liability of defendants Nos. 2 and 3 under the decree will be partially or wholly satisfied, and that is undoubtedly a benefit to them. It does not matter that they themselves do not seek that benefit. It is well settled that although the agriculturists themselves may not realise what is in their interest, yet it is the duty of the Court to give them the benefit to which they are entitled under the Act. Thus in Kisandas v. Nama Rama : (1910)12BOMLR1024 although the agriculturist debtor entered into a compromise in contravention of the provisions of Section 15(2) of the Act, it was held that the mere fact that the agriculturist defendant agreed to such a compromise did not invest the Court with a jurisdiction to pass a decree which contravened the provisions of the Act which were intended for his benefit, I, therefore, agree with the lower appellate Court that the plaintiff can be allowed under Section 10A of the Act to prove the real nature of the transaction in disregard of Section 92 of the Indian Evidence Act.

11. In this view of the case it is not necessary to consider whether, even if the plaintiff is not entitled to the benefit of Section 10A, being not a party to the transaction, he is debarred by Section 92 from leading evidence to prove the real nature of the transaction. The rule of exclusion of oral evidence embodied in Section 92 of the Indian Evidence Act is limited in its operation to parties to the instrument which is sought to be contradicted or varied, and to their representatives in interest. Section 99 enables strangers to an instrument to prove the real nature of the transaction by oral evidence. In Jagat Mihini Das v. Rakhal Das Bisoyi (1905) Cri.L.J. 238 where A purported to make a gift of land to his daughter B, it was held that it was open to a creditor of X, the husband of B, to prove by oral evidence that the transaction was in reality a sale to X and that the property was consequently liable to toe attached and sold in execution of a decree obtained against him. It is, however, true that if the benefit of Section 10A be held not available to the plaintiff, defendant No. 1 would be; entitled to the benefit of Section 41 of the Transfer of Property Act, since he is held to be a bona fide purchaser for value. But under the second proviso to Section 10A of the Dekkhan Agriculturists' Relief Act, as his bona fide purchase is within twelve years before: the institution of the suit, the plaintiff can prove that the original transaction was really a mortgage. It fellows, therefore, that the equity of redemption is still subsisting in defendants Nos. 2 and 3 and is liable to be attached in execution of the plaintiff's decree against them.

12. The appeal is, therefore, dismissed with costs.


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