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Narasimiah Vs. Venkatappa and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 488 of 1955
Judge
Reported inAIR1957Kant86; AIR1957Mys86; ILR1957KAR9; (1957)35MysLJ85
ActsDebt Law; Mysore Agriculturists' Relief Act, 1928 - Sections 2, 3, 4 and 5; Evidence Act, 1872 - Sections 92; Dekkhan Agriculturists' Relief Act - Sections 10-A
AppellantNarasimiah
RespondentVenkatappa and anr.
Appellant AdvocateK.P. Muddappa, Adv.
Respondent AdvocateH. Lakshmanaswamy, Adv.
Excerpt:
.....that he was an agriculturist and the defendants were also agriculturists, both on the date of the suit transaction as well as on the date of the suit and that though the mortgage deed was ostensibly a usufructuary mortgage deed it was intended to be only a simple mortgage' deed, that the defendants continued to be in possession of the property mortgaged under the deed and therefore he was entitled to recover not only the principal amount but also the interest from the defendants. therefore an agriculturist whether he is a plaintiff or a defendant is entitled to take advantage of the provisions of section 5 of the mysore agriculturists' belief act and enjoy the special benefit of it in disregarding the provisions of section 92 of the indian evidence act if he is an agriculturist as..........that he was an agriculturist and the defendants were also agriculturists, both on the date of the suit transaction as well as on the date of the suit and that though the mortgage deed was ostensibly a usufructuary mortgage deed it was intended to be only a simple mortgage' deed, that the defendants continued to be in possession of the property mortgaged under the deed and therefore he was entitled to recover not only the principal amount but also the interest from the defendants.the petitioner contended that he was entitled to establish by adducing oral evidence that the transaction was intended to be only a simple mortgage and not an usufructuary mortgage deed. it was conceded that both the parties to the suit were agriculturists as defined under the mysore agriculturists relief act......
Judgment:

Hombe Gowda, J.

1. This is a revision petition under Section 4 of the Mysore Agriculturists' Relief Act for revision of the finding in Order Section No. 275 of 1954 on the file of the Munsiff of Doddaballapur that the petitioner though an agriculturist under the Mysore Agriculturists' Relief Act cannot claim any relief under the Act and that therefore no finding on the first issue is necessary.

2. This revision petition came up for disposal before the Hon'ble Justice Sri K. N. Padmanabhiah and the learned Judge felt that the question

'whether an agriculturist plaintiff suing on an usufructuary mortgage deed can claim the benefit under the provisions of Section 5 of the Mysore Agriculturists' Relief Act alleging that an apparently usufructuary mortgage deed was actually intended to be a simple hypothecation deed on which he could sue ior recovery of money by sale of hypothecated properties'

needs an authoritative pronouncement to serve as a guide, to the lower Courts and referred it to a Division Bench for disposal.

3. The facts necessary for the appreciation of the point raised in the case are as follows: The petitioner filed a suit for the recovery of certain money due on a mortgage deed dated 21-10-1948 executed by the respondents in his favour with costs and current interest.

He alleged in his plaint that he was an agriculturist and the defendants were also agriculturists, both on the date of the suit transaction as well as on the date of the suit and that though the mortgage deed was ostensibly a usufructuary mortgage deed it was intended to be only a simple mortgage' deed, that the defendants continued to be in possession of the property mortgaged under the deed and therefore he was entitled to recover not only the principal amount but also the interest from the defendants.

The petitioner contended that he was entitled to establish by adducing oral evidence that the transaction was intended to be only a simple mortgage and not an usufructuary mortgage deed. It was conceded that both the parties to the suit were agriculturists as defined under the Mysore Agriculturists Relief Act. But it was contended on behalf of the respondents that the petitioner was not entitled to claim and get any relief in the hands of the Court in view of the fact that the suit was not one coming under any of the provisions of the sub-sections of Section 3 of the Mysore Agriculturists Relief Act.

It was on the other hand contended by the petitioner that so long as one of the parties to the suit was an agriculturist he was entitled to adduce oral evidence to establish what exactly is the true nature of the transaction under Section 5 of the Mysore. Agriculturists' Relief Act and the petitioner was therefore entitled to ask for a decree as prayed for in the suit.

The learned Munsiff was of the opinion that there was no substance in the contention of the petitioner and that the suit did not fall under any of the sub-sections of Section 3 of the Mysore Agriculturists Relief Act and rejected the contention of the petitioner. It is against this decision that the present revision petition has been filed by the petitioner.

4. Section 5 of the Mysore Agriculturists' Relief Act reads as follows :

'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, at any time within a period of six years before this Act is extended to the. local area concerned, 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 this Chapter, the Court shall, notwithstanding anything contained in Section 92 of the Indian Evidence Act, 1872, or in any other law for the lime 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 with a view to such determination and decision.'

It is clear from the above that the Section is not intended to be restricted to cases wherein an agriculturist is arrayed as a defendant. One of the objects of the Agriculturists' Relief Act as can be gathered from Section 5 of the Act is to empower the Courts in suits against or by agriculturists to investigate the entire history of the transaction between the parties and do substantial justice between them.

Therefore an agriculturist whether he is a plaintiff or a defendant is entitled to take advantage of the provisions of Section 5 of the Mysore Agriculturists' Belief Act and enjoy the special benefit of it in disregarding the provisions of Section 92 of the Indian Evidence Act if he is an agriculturist as defined in Section 2 of the Mysore Agriculturists' Relief Act-

There is absolutely no basis for the contention of the respondents that it is only a defendant in a suit that is entitled to claim the special benefits conferred under Section 5 of the Mysore Agriculturists' Relief Act. Once it is conceded by the respondents that the petitioner is an agriculturist as defined in Section 2 of the Mysore Agriculturists' Relief Act, there is absolutely no reason, whatsoever, to deny the special benefits conferred on agriculturists by the Mysore Agriculturists' Relief Act to the petitioner.

Further it cannot he said that the suit filed by the petitioner against the respondents docs not come under any of the sub-sections of Section 3 of the Mysore Agriculturists' Relief Act. Subjection (iii) of Section 3 of the Mysore Agriculturists' Relief Act leads as follows:

'Suits for foreclosure or for the possession of mortgaged property or for sale of such property or for foreclosure and sale when the defendant or any one of the defendants is an agriculturist.' It is admitted by the respondents that they are agriculturists. The suit filed by the petitioner is for sale of the suit schedule property and for the recovery of the amount due under the deed. It cannot therefore reasonably he urged that the suit does not fall under the above sub-section.

5. Section 5 of the Mysore Agriculturists'Relief Act is almost in the same terms as Section 10-A of the Dekkhan Agriculturists' Relief Act. Thereare a number of decisions of the Bombay HighCourt in which it had been held that the plaintiffis entitled to the special benefit conferred by Section 10-Aof the Dekkhan Agriculturists' Relief Act and to askthe Court to investigate the entire history of thetransaction to ascertain the true nature of the transaction entered into between the parties.

Reference in this connection may be made to Bhukhandas Valabdas v. Chhaganlal Dayaram, AIR 1944 Bom 32 (A), wherein it was held that the three essentials required by Section 10-A 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 3 and that one of the parties to the suit must he an agriculturist.

In that case it was the plaintiff that sought for the benefit of Section 10-A of the Agriculturists' Relief Act. It was contended in that case that since the plaintiff was not an agriculturist and was claiming through. an agriculturist he was not entitled to claim the benefit of Section 10-A. It was held by His Lordship Lokur J. that it was not 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. (See also Basappa Gurubasappa v. Tayawa Virupakshappa, AIR 1930 Bom 79 (B); Sawantrawa Fukirappa v. Giriyappa Fakirappa, 15 Bom LR 778: (AIR 1914 Bom 273)(FB) (C); Gautam Jayachand v. Malharj Bapu, 34 Ind Cas 408: (AIR 1016 Bom 206 (1)) (D). In this connection it is useful to notice that in Channe Gowda v. Mallappa, 51 Mys HCR 187 (E), dealing with the scope of Section 5 of the Mysore Agriculturists' Relief Act His Lordship Venkata Ranga lyengar J. observed as follows :

'In cases, as in the present case, where the parties to the transactions are agriculturists, Section 5 of the Mysore Agriculturists' Relief Act enables them to adduce evidence to show that a document, which is ostensibly a sale deed, is in reality a deed of mortgage, notwithstanding any thing contained in Section 92 of die Evidence Act.

The rule contained in Section 5 of the Mysore Agriculturists' Relief Act as regards the letting in of parole evidence to prove the intention of the parties is quite in accordance with the principles of English Law, as laid down in the leading case on the subject. Alderson v. White, (1858) 2 De G & J 97: 44 ER 924 (F) & other cases, though in India and in Mysore, as already mentioned, except in cases coming under Agriculturists' Relief Act, parole evidence to prove the intention is not admissible under Section 92 of the Evidence Act.'

It is clear from the above that the relief of the special benefit provided under Section 5 of the Mysore Agriculturists' Relief Act is not restricted to only a defendant. A plaintiff if he is an agriculturist, is as much entitled to claim and get the benefit of the same and to adduce oral evidence to prove that the transaction is not what it imports to be on the face of it. The finding of the learned Munsiff to the effect that the petitioner is not entitled to claim any relief under the Mysore Agriculturists' Relief Act on the first issue cannot therefore be upheld.

6. In the result, therefore, this revision petition is allowed and the finding of the learned Munsiff on the preliminary issue is set aside and the case is remanded to the lower Court for disposal according to law.

7. In the circumstances of the case the partieswill bear their own costs.

8. Revision allowed.


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