(1) This is a defendant's appeal against the judgment and decree passed against him by the Civil Judge, Kolar in Regular Appeal No. 110 of 1959 by which the learned Judge directed a preliminary decree for redemption to be passed against him.
(2) The respondent-plaintiff instituted O.S. 429 of 1958 alleging that the sale-deed executed by him in favour of the defendant for Rs. 500 on 7-5-1955 conveying Survey Nos. 68/1 and 69/1 situated at Lakkur in Malur Taluka was in reality a mortgage. According to him, there was an oral agreement at the time of settlement of the transaction between himself and the defendant to the effect that the latter should reconvey the property on receiving Rs. 500/- with interest at 9% per annum. He prayed for a decree for redemption, or, in the alternative, a decree directing the defendant to reconvey the schedule properties after receiving the amount due to him. The defendant denied the oral agreement and contended that he was the absolute owner of the suit properties not liable to reconvey the same to the plaintiff.
(3) It is admitted that the plaintiff is an agriculturist. The trial Court dismissed the suit holding that the oral evidence adduced by the plaintiff was not worthy of belief and that he had failed to establish the alleged oral agreement to reconvey. In the appeal preferred by the plaintiff, the learned Civil Judge was of the view, that the plaintiff could not claim the benefit of S. 58(c) of the Transfer of Property Act as the alleged oral agreement to reconvey had not been embodied in the sale-deed. He however came to the conclusion that the plaintiff was entitled to claim the benefit of S. 5 of the Mysore Agriculturists' Relief Act and that the oral evidence was meant to be a security for the loan. He accordingly passed a decree for redemption.
(4) In the appeal, the learned Advocate for the appellant has submitted that the plaintiff was not entitled to the benefit of S. 5 of the Mysore Agriculturists' Relief Act and that the decree passed by Civil Judge in favour of the respondent was prima facie unsustainable. In support of this argument, he has relied upon the Full Bench decision of this Court in Dasappa v. Jogiah in 1964(1) Mys LJ 254: (AIR 1965 Mys 54 (FB)) in which it has been laid down that the provisions of S. 5 of the Mysore Agriculturists' Relief Act, 1928 (Mys. Act 18 of 1928) applied only to transactions which took place at any time within a period of six years before the Act was extended to the local area concerned and are not applicable to transactions entered into subsequent to such extension. That section empowers the Court to enquire into and determine the real nature of the transactions whenever it is alleged in any suit to which an agriculturists is a party that any transaction in issue entered into by him at any time within a period of six years before the extension of the Act to the local area concerned, by admitting evidence of any oral agreement or statement whit a view to decide the question, notwithstanding anything contained in S. 92 of the Indian Evidence Act, or in any other law for the time being in force. It is common ground that the Act was extended to the Kolar District on 1-1-1934. The suit transaction was entered into on 7-5-1955. Obviously the plaintiff is not entitled to claim the benefit of S. 5 and so the learned Civil Judge was in error in admitting oral evidence for determination of the nature of the transaction.
(5) Mr. Somasekhara Rao the learned Advocate for the plaintiff concedes this position, but has applied for amendment of his plaint praying therein for a decree against the defendant for specific performance of the agreement to reconvey the suit property on receipt of Rs. 500/- towards principal and Rs. 150/- towards interest the learned Advocate for the appellant has opposed this application, and I do not think that there are any just grounds for permitting the amendment prayed for. Even in the plaint as originally instituted, there is an alternative prayer for directing the defendant to reconvey the suit lands after receiving Rs. 500/- towards principal and interest thereon at 9% per annum from 7-5-1955. Mr. Somasekhara Rao however argued that since S. 58(c) of the Transfer of Property Act, 1882 was not applicable to the Mysore State, it was open to the plaintiff to establish by oral evidence that there had been an oral agreement to reconvey the property even though the same has not been embodied in the sale deed and to sue for reconveyance of the property.
(6) I do not think that there is any substance in this argument. The provisions of the Transfer of Property Act, 1882 were applied to the former State of Mysore by the Part B States (Laws) Act, 1951, (Central Act No. 3 of 1951) hereinafter called the Act, with effect from 1st April 1951. While conceding this position, Mr. Somasekhara Rao contended that the provisions contained in Chap. IV of the Transfer of Property Act, 1882 relating to 'Mortgages of Immovable Property and Charges' could not operate in the Mysore area as the competence to legislate on 'transfer an alienation of agricultural land' rested exclusively in the State Legislature in view of Entry 18 of List II of Sch. VII of the Constitution. Entry 18 of List II of Sch. VII to the Constitution reads:
'Land that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land and agricultural loans; colonization.'
This entry confers exclusive power on the State Legislature to deal with transfer and alienation of agricultural land. Section 3 of the Act applied the various enactments (subject to the amendments specified therein) mentioned in the Schedule thereto, to Part B States to the extent that 'any of the provisions contained therein relates to matter with respect to which Parliament has power to make laws.' The section makes it clear that the Central Acts applied to the Part B States would operate only in respect of matters on which the Parliament is competent to legislate. In this connection it is also necessary to refer to S. 6 of the Act which repealed any law to force in the State and corresponding to any of the Acts or Ordinances extended to that area.
The learned Advocate argued that as the Act repealed the Mysore Transfer of Property Act, there was no law relating to mortgages in force in the Mysore area and S. 58(c) of the Transfer of Property Act would be no bar to the plaintiff to prove the alleged agreement by leading oral evidence. This argument loses sight of one fundamental fact. After the enactment of Central Act No. 5 of 1951, the Mysore State Legislature took relevant steps in the matter and enacted the Mysore Transfer of Property (Extension to Agricultural Lands) Act, 1951 (Mysore Act 32 of 1951) replacing the corresponding Ordinance which had extended the provisions of the Transfer of Property Act, 1882 to the Mysore Area, Section 2 of the Mysore Act provides that the terms 'property' and 'immovable property' in the Transfer of Property Act, 1882, shall include agricultural land. It would be evident from S. 2 of this Act that the provisions relating to mortgages contained in the Transfer of Property Act became applicable to the former Part B States of Mysore and S. 58(c) was in force at the date when the suit transaction was entered into. So the plaintiff is debarred from leading oral evidence in proof of the agreement to recovery.
(7) The recitals of the plaint make it clear that the oral agreement to reconvey the property on receipt of Rs. 500/- and interest thereon was entered into prior to the execution of the document. It is expressly stated in para 2 that as the defendant agreed to accept the property as security for the loan and to reconvey the same if the amount of loan together with interest at 9% per annum was repaid at any time within five years, the plaintiff executed a mortgage deed in the form of a sale deed. Section 58(c) provides that where the mortgagor ostensibly sells the mortgaged property on condition that on payment of the mortgage money by a certain date, the buyer shall transfer the property to the seller, the transaction shall be called mortgage by conditional sale, provided that no such transaction shall be deemed to be a mortgage unless the condition is embodied in the document which effects or purports to effect the sale. In this case the condition is not embodies in the document effecting the sale and so the transaction cannot be considered to be a mortgage by conditional sale.
(8) It thus follows that the plaintiff is not entitled to the benefit of S. 5 of the Mysore Agriculturists' Relief Act. Since the alleged oral agreement to treat the transaction as mortgage and to reconvey the property on payment of the mortgage money with interest is not embodied in the sale deed, the plaintiff cannot get over the bar created by S. 58(c) of the Transfer of Property Act. So it is not open to him to lead oral evidence contrary to the recitals of the sale deed.
(9) In the result, the appeal is allowed, the decree passed by the Civil Judge is set aside and the plaintiff's suit is dismissed with costs throughout.
(10) Appeal allowed.