JUDGMENT
John Beaumont, Kt., C.J.
1. This is an appeal from the decision of the Assistant Judge, Belgaum. The suit is brought by the plaintiffs under Section 15 I) of the Dekkhan Agriculturists’ Relief Act asking for an account. For the purposes of Court-fee the claim was valued at Rs. 5 which would’ be sufficient if the claim is merely one for an account. The learned trial Judge raised certain issues of which the first was, whether the transaction evidenced by the sale-deed dated April 29, 1915, was really a mortgage, and he answered that issue in the negative. It is apparent from that, and from the statement of the plaintiffs’ case in the learned Judge’s judgment, that the plaintiffs were alleging that a document, in form of a sale deed, was in fact a mortgage and that the transaction was a mortgage transaction. In the lower appellate Court a preliminary objection was taken that the plaint and memorandum of appeal were insufficiently stamped and that the suit was not properly brought under Section 15 D. The learned Judge upheld that preliminary objection and dismissed the appeal without going into the merits. In so doing the learned Judge relied on a decision of this Court in Krishnaji v. Sadanand (1924) 26 Bom. L.R. 341. In my opinion that case does not govern the present case. That case, and the case of Chandabhai v. Ganpati (1916) 18 Bom. L.R. 763, on which it was founded, were both cases in which the plaintiff was suing under Section 15D of the Dekkhan Agriculturists’ Relief Act, but in each case in order to succeed he had to set aside a certain sale, that is to say, he had to ask for substantive relief before he could get an account against the mortgagee. In the present case that is not so. The plaintiff suing under Section 15 D has to prove his mortgage. Even if he produced a plain mortgage he would have to prove it, and it might be that the mortgagee would dispute the execution of the document. As it is he produced a document which is in form a sale deed and therefore he has got to prove not only the execution of that document, but that it is in fact a mortgage transaction, and evidence of that he can. give having regard to the provisions of Section 10 A of the Act. Mr. Belvi, on behalf of the respondent, has contended that a suit under Section 15 D of the Act does not lie if it involves an issue whether or not the mortgage was in existence. The passage relied on in the judgment of Sir Norman Macleod in Krishnaji’s case is this (p. 344):-
It will be seen therefore that a suit of that kind (that is, under Section 15 D, will only lie on the presumption that there was a mortgage in existence by an agriculturist and that an issue whether or not a mortgage was in existence could not be entertained.
I think that passage cannot be pressed to the length to which Mr. Belvi wants to press it. One must take that observation having regard to the facts of the case in which the observation was made. Mr. Belvi says that it really comes to this that unless the mortgage is admitted the case cannot fall under Section 15 D. But there is nothing in the section which provides that the mortgage must be admitted, and if that argument were to prevail, it would always be open to every mortgagee to deprive his mortgagor of the benefit of Section 15 D by simply disputing the mortgage, whether on sufficient or insufficient grounds. As I have said Krishnaji’s case is plainly distinguishable from this case because there it was necessary for the mortgagor to obtain substantive relief from the Court, that is to say, the setting aside of a deed or a declaration that such deed had become invalid before he could establish his mortgage. I think, therefore, that that case does not govern the present case, and that the learned Judge ought to have heard the appeal on its merits. That being so, this appeal must be allowed with costs. The case is remitted to the lower appellate Court to deal with the appeal on the merits.
