NADODA KHIMA KESHAR Vs. STATE OF BOMBAY NOW GUJARAT

JUDGEMENT

(1.) This Revision Application arises out of a debt adjustment application preferred by the petitioner and it raises a short question of construction of sec. 55(6)(b) of the Transfer of Property Act. On 26th April 1954 the petitioner executed a sale deed in favour of one Magan Jiva purporting to sell a field bearing Survey No. 136 situate in Wadhwan City Surendranagar District. The price that was paid by Magan Jiva to the petitioner for the field was Rs. 2 200 The petitioner thereafter preferred an application for adjustment of his debts under sec. 4 of the Saurashtra Agricultural Debtors Relief Act 1954 in the Court of the Civil Judge Junior Division Wadhwan. Magan Jiva vas impleaded as creditor No. 4 in the application. The petitioner alleged that the transaction embodied in the sale deed dated 26th April 1954 was in the nature of a mortgage and he claimed adjustment of the debt due under the mortgage and possession of the field from Magan Jiva. Magan Jiva contested the application and his contention was that the transaction was an outright sale and was not in the nature of a mortgage and the petitioner was therefore not entitled to maintain the application against him. The point at issue between the parties before the learned Civil Judge therefore was whether the transaction which on the face of the sale deed dated 26th April 1954 appeared to be an outright sale was in the nature of a mortgage. Both the parties led evidence before the learned Civil Judge on this issue and after the evidence was closed arguments were addressed to the learned Civil Judge on this point. At the hearing of the arguments an alternative contention was put forward on behalf of the petitioner and that is the contention which has been principally argued before me in the present Revision Application namely that even if the transaction embodied in the sale deed dated 26th April 1954 was a sale it was hit by sec. 4 of the Saurashtra Attachment of Agricultural Debtors Property (Temporary Exemptions) Act 1954 which was in the force from 17th April 1954 to 31 July 1954 and Magan Jiva was therefore entitled to a charge on the field for the purchase price paid by him to the petitioner under sec. 55(6)(b) of the Transfer of Property Act and the debt under this charge should be adjusted and the possession of the field should be handed over to the petitioner. On the main contention the learned trial Judge after carefully considering the evidence came to the conclusion that the transaction was a transaction of outright sale and was not in the nature of a mortgage and the applicant was therefore not entitled to adjustment of the mortgage debt as claimed by him. The alternative contention was also rejected by the learned Civil Judge on the ground that it was beyond the jurisdiction of the Courts under the Saurashtra Agricultural Debtors Relief Act 1954 to examine whether the transaction of sale was hit by any provision of law invalidating transfers of agricultural lands by agricultural debtors and the learned Civil Judge accordingly declined to go into the question whether the transaction of sale was void by reason of sec. 4 of the Saurashtra Attachment of Agricultural Debtors Property (Temporary Exemptions) Act 1954 The learned Civil Judge in the result rejected the application of the petitioner against Magan Jiva. The petitioner thereupon preferred an appeal in the District Court Surendranagar. It appears that in the meantime Magan Jiva died leaving him surviving respondents Nos. 4(1) to 4(9) as his heirs and legal representatives and respondents Nos. 4(1) to 4(9) were therefore impleaded as party respondents in the appeal. Before the lower appellate Court the same two contentions were urged on behalf of the petitioners and the lower appellate Court rejected both the contentions. The lower appellate Court held that the transaction embodied in the sale deed dated 26th April 1954 was a transaction of sale and was not in the nature of a mortgage and so far as the question of validity of the sale was concerned the Courts under the Saurashtra Agricultural Debtors Relief Act 1954 had no jurisdiction to examine that question. The lower appellate Court accordingly dismissed the appeal of the petitioner and the petitioner thereupon preferred the present Revision Application in this Court challenging the vieW taken by the lower appellate Court.

(2.) This being a Revision Application the conclusion of the lower appellate Court that the transaction evidenced by the sale deed dated 26th April 1954 was an outright sale and was not in the nature of a mortgage could not be assailed by the petitioner and the petitioner therefore confined his arguments to the alternative ground of relief and urged that the sale effected under the sale deed dated 26th April 1954 was void as being in contravention of sec. 4 of the Saurashtra Attachment of Agricultural Debtors Property (Temporary Exemptions) Act 1954 and Magan Jiva and on his death respondents Nos. 4(1) to 4(9) were therefore entitled to a charge on the field for the purchase money paid by Magan Jiva to the petitioner under sec. 55(6)(b) of the Transfer of Property Act and this debt was liable to be adjusted under the provisions of the Saurashtra Agricultural Debtors Relief Act 1954 The validity of this argument was disputed on behalf of respondents Nos. 4(1) to 4(9) and it was sought to be repelled by a twofold contention. The first contention was that the debt adjustment Court had no jurisdiction to go into the question of validity of a sale effected by a debtor in favour of a creditor and to decide whether it was binding on the debtor and the second contention was that in any event even if the sale was void under sec. 4 of the Saurashtra Attachment of Agricultural Debtors Property (Temporary Exemptions) Act 19545 sec. 55(6)(b) of the Transfer of Property Act had no application and respondents Nos. 4(1) to 4(9) were not entitled to a charge on the field under that section and the application was accordingly not maintainable. The second contention is in my view well-founded and it is therefore not necessary to examine the validity of the first.

(3.) The second contention proceeds on the assumption that the petitioner was at the date of the sale an agriculturist debtor within the meaning of the Saurashtra Attachment of Agricultural Debtors Property (Temporary Exemptions) Act 1954 and the sale purported to be effected under the sale deed dated 26th April 1954 was therefore void under sec. 4 of that Act. The question is whether the sale being void Magan Jiva and on his death respondents Nos. 4(1) to 4(9) could claim to have a charge on the field for the purchase money under sec. 55(6)(b) of the Transfer of Property Act. Sec. 55(6)(b) runs in the following terms:-