BHUKHANDAS VALABDAS Vs. CHHAGANLAL DAYARAM

JUDGEMENT

(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/s. Irappa Giri Mallappa (1942) I.L.R. 46 Bom. 843 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/s. Mangal Chand (1905) I.L.R. 28 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.