Decided on April 03,1963

VELU Appellant
KORATHU Respondents


- (1.)This appeal is against the order of Vaidialingam, J., allowing O. P. No. 1535 of 1962 under Art.227 of the Constitution.
(2.)The facts relevant are as follow:
The appellant had on 10-3-1118 executed an agreement for sale of immovable property, evidenced by Ext. D l, to the respondent, and received an advance of Rs. 200/- out of the price, agreeing to execute the conveyance on or before 10-9-1118 when the balance price, Rs. 1,000/- was to be paid. The appellant did not carry out his contract. The respondent enforced specific performance of the contract in O. S. No. 925 of 1118 in the court of the Munsiff, Quilon. Though the decree was affirmed by the High Court, the appellant did not care to obey it, and ultimately the court had to execute the conveyance on behalf of the appellant. The sale deed thus executed by the court on 24-2-1125 is Ext. P.13. The respondent has been put in possession of some of the properties involved; but some remain to be delivered to him under the decree. The Kerala Agriculturists Debt Relief Act, 1958, by its S.9(3) allowed agriculturists to plead and prove that a transaction purporting to be a sale of immovable property was really one of debt between the parties, namely, the apparent vendor and vendee, untrammelled by S.91 and 92 of the Evidence Act. On 24-3-1959 the appellant moved C. M. P. No. 3905 of 1959 to have the aforesaid sale declared a transaction of debt liable to be discharged under the Act so that he may get back the property on return of the price received; and on 30-3-1959 moved C. M. P. No. 3967 of 1959 for redelivery of the property already delivered and for stay of delivery of the properties remaining to be delivered under the decree. Those applications, after several vicissitudes, came to the dismissed by the Munsiff, but were allowed on appeal by the Subordinate Judge. The respondent filed C. R. P. No. 1234 of 1960 challenging the latter order, and subsequently converted it, with permission of Raghavan, J., into O. P. 1535 of 1962 under Art.227 of the Constitution. Vaidialingam, J. allowed the O. P., reversed the order of the Subordinate Judge and restored the order of the Munsiff dismissing the applications of the appellant. Hence this appeal.

(3.)S.9(3) of the Kerala Agriculturists Debt Relief Act, 1958 allows an agriculturist to plead and prove that a transaction executed by him as a sale of immovable property was really one of debt between himself and his vendee and, if that be established, to discharge that debt and redeem the property as if the transaction was really a mortgage. It runs thus:
"Notwithstanding anything in the Indian Evidence Act, 1872, in the case of any transaction entered into on or after 1st January 1946 and purporting to be a sale of immovable property or a lease of usufructs, any agriculturist who is a party to the transaction may plead, adduce evidence and prove that the transaction is really a debt and thereupon the amount advanced shall be deemed to be the principal of the debt and the income from the property or the value of the usufructs, as the case may be, shall be appropriated towards interest calculated at the rate specified in S.5 on the principal and the balance, if any, towards the principal. The amount, if any, outstanding after such appropriation together with the value of improvements, if any, effected by the creditor shall be paid in accordance with the provisions of sub-s.(2), (3) and (5) of S.11, as if the transaction were a usufructuary mortgage and the rights of the creditor and the debtor shall be governed, as far as may be, by the provisions of the said sub-sections:

Provided that this sub-section shall not affect the rights of bona fide alienees of the creditor deriving rights before 20th November 1957."


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