Madgavkar, J.:—
The question in this appeal is whether the registered deed, Exhibit 45, dated June 13, 1907, is an ostensible sale or in reality a mortgage. There was also an unregistered document bearing ??? date previous to the registered document containing ??? agreement to reconvey. The plaintiff-appellant's case was that it was antedated as confirmation of the mortgage nature of the transaction of June 13, 1907. The defendants-respondents did not admit the genuinenes of this document and denied the mortgage. The trial Court held that this document, Exhibit 46, did not require registration and was admissible. The Subordinate Judge thought that it was actually passed ??? a date prior to the ostensible sale and on the ??? of Exhibit 46 and the oral evidence declared that the plaint transaction was a mortgage and as the result ??? making accounts under the Dekkhan Agriculturist Relief Act that the plaintiffs should pay Rs. 1,000 the defendants, the representatives of the mortgagees.
In appeal, the learned Assistant Judge held the Exhibit 46 was not admissible for want of registration and that under section 91 of the Indian Evidence A section 10A of the Dekkhan Agriculturists' Relief ??? notwithstanding, oral evidence of the mortgage nature of the transaction was excluded and the ??? must fail. He, therefore, set aside the decree of the trial Court and dismissed the suit. The plaintiffs appeal.
The only questions in appeal are, whether Exhibit is compulsorily registrable, and whether it is admissible even for a collateral purpose, such as the nature of ??? possession of the respondent; secondly, whether ??? evidence to show the mortgage nature of the transaction ??? excluded under section 91 of the Indian Evidence Act by reason of the existence of Exhibit 46.
Both the lower Courts have found that Exhibits 46 and 45 are parts of the same transaction. It is nobody's case that Exhibit 46 was, as it purports to be, an agreement to reconvey, and therefore, under the decision of the Full Bench in Harkisondas Bhagwandas v. Bai Dhanu Exhibit 46 was compulsorily registrable and was inadmissible for want of registration.
The question whether it was admissible for a ??? purpose showing the nature of the respondents' possession is not free from difficulty. But for the view their Lordships of the Privy Council in Varada Pillai v. Jeevarathnammal. I should myself be clined to the opinion that it was not so admissible. ??? question, however, is not of very much importance this case. It rather turns on the second point, ??? whether Exhibit 46, by reason of section 91 the indian evidence act and notwithstanding section 10A, Dekkhan Agriculturists' Relief Act, ??? oral evidence of the mortgage nature of the transaction. For the appellant reliance is placed on ??? concluding words “notwithstanding anything ??? in section 92 of the indian evidence act, ??? or in any other law for the time being in force” in section 10A of the Dekkhan Agriculturists' Relief Act. ??? respondent relies on the remarks of Batchelor, J. in ??? v. Morar(3) and argues that section 91 is not ??? generis with section 92 and not being, like section 92, expressly specified, must be excluded. Section 10A of the Dekkhan Agriculturists' Relief Act ??? expressly enacted in order to admit oral evidence as ??? real nature of the transaction. Sections 91 and 92 the Indian Evidence Act are successive sections in Chapter VI of the indian evidence act “On the exclusion of oral by documentary evidence” and are in fact illustrations of the principle that a document must speak for itself as to the agreement therein and excludes oral evidence of it. Section 91 exclude oral evidence of the contents of the document an section 92, oral evidence of any variation of ??? terms. The view put forward for the respondent would treat the words “or in any other law for the time being in force” as mere surplusage. The case of Gopal v. Morar only decided that “any other ??? for the time being in force” did not include the India Registration Act. Taking the object of section 10A namely, the decision as to the real nature of the transaction by admission of the oral evidence which would otherwise be excluded under the ordinary law whether section 92 or the like, I am clearly of opinion that the legislature intended that section 10A of ??? Dekkhan Agriculturists' Relief Act should override ??? merely section 92 but also, where necessary, section of the indian evidence act. Otherwise, the effect such a case as the present would be that whilst ??? oral evidence would be admissible notwithstanding Exhibit 45, the registered deed of sale, oral evidence admissible under section 10a, dekkhan agriculturist relief act, would be excluded under section 91 of ??? indian evidence act; in other words, section overrides section 10A of the Dekkhan Agriculturist Relief Act and not vice versa, which the legislature could hardly be taken to have intended on the ??? language of section 10A. The view of the ??? appellate Court was, therefore, in my opinion, ??? when it held that oral evidence was excluded by ??? of the existence of Exhibit 46. The general result that although Exhibit 46 is inadmissible, such ??? evidence is admissible by reason of section 10A, which ??? a suit such as the present will be taken to override section 91. In this view both the lower Courts are ??? that on the oral evidence the transaction was ??? of mortgage, and on taking accounts, the lower appellate Court held nothing was due to the Respondents-mortgagees.
The decrees of the lower Courts are set aside and there will be a decree for possession in favour of the appellants and on the finding of the lower appellate Court that nothing is due, the appellants will be entitled to possession without any further payment.
Each party will pay its own costs in the trial Court. The respondents will pay the appellant's costs in this Court and in the District Court.
Decree reversed.
B.G.R