Judgment :- 1. This revision is filed against an order of the learned District Munsiff of Meenachil holding that for disposing of an application filed by a mortgagor, namely, A.D.R.P. No. 401 of 1959 evidence is seen to be necessary. It is rather unfortunate that the learned District Munsiff has not really stated as to what was the nature of the application filed before him, what was the nature of the objection raised before him and what are the reasons that prompted the learned District Munsiff to hold that evidence is necessary for a proper disposal of the matter. In fact the cryptic order of the learned District Munsiff is "Heard. Since evidence is seen to be necessary for a proper disposal of the matter adjourned for evidence & hearing 6-8-1959". In order to know the points in controversy this court had to take the assistance of the learned counsel appearing on both sides and it is now seen that A.D.R.P. No. 401 of 1959 is an application filed by the mortgagor claiming relief under S.4 of the Kerala Agriculturists Debt Relief Act, Act 31 of 1958. 2. An objection appears to have been raised by the mortgagee petitioner before me that the mortgagor is not entitled to any relief excepting as provided in sub-sections 1 to 5 of S.11 of Act 31 of 1958. It is on this application that the learned District Munsiff has passed the order referred to above. 3. The mortgagee is the petitioner before me. It is stated that on 6-4-1953, the first respondent before me executed the usufructuary mortgage in question in favour of the petitioner and on the same day the petitioner has given a lease of the properties to the second respondent in this court. It is for getting relief in respect of this mortgage dated 6-4-1953 that the first respondent has filed the necessary application in the lower court. 4. On behalf of the petitioner mortgagee, Mr. K.K. Mathew, learned counsel, contended that the mortgage is a usufructuary mortgage and the right of a debtor in the position of the first respondent to claim suitable reliefs on the basis of Act 31 of 1958 has been sufficiently indicated by the various sub-sections, namely, sub-sections 1 to 5 of S.11. Therefore, Mr. K.K. Mathew, learned counsel, contended that the mortgage is a usufructuary mortgage and the right of a debtor in the position of the first respondent to claim suitable reliefs on the basis of Act 31 of 1958 has been sufficiently indicated by the various sub-sections, namely, sub-sections 1 to 5 of S.11. Therefore, Mr. Mathew contended that it is not open to the first respondent to go behind this transaction, and attempt to prove that what is a usufructuary mortgage for all purposes is not a usufructuary mortgage but a different type of transaction, namely, a simple mortgage, for which the debtor can claim relief under sub-section (6) of S.11. 5. Mr. Mathew referred me to the provisions of the Act dealing with the definition of the expression 'Debt', then to S.4 (3) which clearly mentions that S.4 will not apply to mortgages to which S.11 applies except as provided in sub-section 6 of that section, then to S.9, which according to Mr. Mathew, gives only a limited right to a party to prove that any transaction is a transaction of debt in respect of which relief can be claimed under this Act. 6. Mr. Mathew contended that in view of the admitted facts in this case and in view of the further fact that relief in respect of the usufructuary mortgage in this case is to be claimed by the debtor, namely, the first respondent, only on the basis of sub-sections 1 to 5 of S.11, it was absolutely unnecessary for any party to attempt to adduce any evidence whatsoever. I will be adverting to the relevant sections of the Act in order to appreciate the contentions of both counsel. 7. On the other hand, Mr. Mathew Muricken, learned counsel, contended that S.9 gives a right to a debtor to re-open any transaction and it also gives him the further right to show that a particular transaction of debt, in respect of which relief could be claimed only on the basis of particular provisions of the Act, can also be shown to be a different transaction of debt in respect of which a greater and higher relief can be claimed by the agriculturist under the provisions of this Act. The question will be whether S.9 warrants such an interpretation as is sought to be placed by Mr. Mathew Muricken, learned counsel for the first respondent. The question will be whether S.9 warrants such an interpretation as is sought to be placed by Mr. Mathew Muricken, learned counsel for the first respondent. In this connection I may also mention that Mr. K. K. Mathew referred me to a provision in the Travancore Debt Relief Act, 2 of 1116, and in particular S.S, Clause.2 therein. S.5 of the said enactment provides: "Except in the cases mentioned thereunder, nothing contained in this Act, shall affect any usufructuary mortgage". Then I leave all the other provisions. Sub-section 2 of S.5 of the Travancore Act provides: "Notwithstanding any practice or rule of law to the contrary it shall be competent to the parties to the transaction referred to in Exception (a) of sub-section (1) or any person claiming under them to prove that the transaction purporting to be a usufructuary mortgage was intended to be, or treated as a hypothecation". This sub-section was referred to by Mr. K. K. Mathew to show that whenever the legislature intended that the debtor should be permitted to go behind the usufructuary mortgage and prove that it is not a usufructuary mortgage but a simple hypothecation it has used express provisions as contained in sub-section 2 of S.5 of Travancore Act II of 1116. 8. Mr. Mathew Muricken, learned counsel, in turn contended that to construe an enactment it is not proper to go beyond the terms of the enactment itself. In my opinion it is not necessary at all for a consideration of the rights given under the Kerala Agriculturists Debt Relief Act, 31 of 1958, to go to the provisions of Travancore Act 2 of 1116 and in particular S.5 (2) on which Mr. Mathew attempted to place some reliance. In my opinion, the short answer to the contention raised by Mr. Muricken is found in the enactment in question itself. I do not think that the legislature by enacting S.9 has really given a right to a debtor to show that one transaction of debt which could be scaled down under particular provisions of the enactment is really another transaction of debt in respect of which other types of relief can be obtained under the Act. Before I go to S.9, I will deal with one or two other provisions. 9. Before I go to S.9, I will deal with one or two other provisions. 9. S.11, sub-section (1) provides that the sub-section applies to all subsisting mortgages executed by an agriculturist at any time before the commencement of the Act and by virtue of which the mortgagee is in possession of the property mortgaged to him or any portion thereof. There is no doubt a qualification in sub-section (1) of S.11 to the extent to which the provisions of S.11 are made subject to the provisions of S.25 of the Act. It is not necessary for me to consider the various matters mentioned in S.25 because it is nobody's case in the matter before me that S.25 operates as a bar in respect of the particular mortgage transaction. 10. There is an Explanation to sub-section 1 of S.11 to the effect: "A mortgagee shall be deemed to be in possession of the property mortgaged to him or any portion thereof, notwithstanding that he has leased it to any person other than the mortgagor". That means that sub-section (1) contemplates a mortgagee being in possession of the property mortgaged to him. The explanation also makes it clear that notwithstanding the fact that the mortgagee has leased the property to any third person nevertheless, he will be considered to be "a mortgagee in possession" within the meaning of the expression obtained in sub-section (1) to S.11. 11. In the case before me, there does not appear to be any controversy that the mortgagee, namely, the petitioner has leased the properties to the second counter-petitioner. I have already indicated that it is the first respondent that has executed the usufructuary mortgage in favour of the petitioner. That means, the first counter-petitioner is the mortgagor. Sub-sections 2 to 5 of S.11 are not really necessary to be considered because they only give the nature of the relief that is obtainable by a usufructuary mortgagor, if I may use that expression. That means, the first counter-petitioner is the mortgagor. Sub-sections 2 to 5 of S.11 are not really necessary to be considered because they only give the nature of the relief that is obtainable by a usufructuary mortgagor, if I may use that expression. Sub-section (6) of S.11 provides: "Nothing contained in sub-sections (2) to (5) shall apply to mortgages where the property mortgaged has been leased back to the mortgagor by the mortgagee and to such mortgages the following provisions shall apply: (a) the mortgage shall be deemed to be a simple mortgage from the date, of the leaseback and the provisions of this Act shall apply to the debt covered by the mortgage; (b) the interest payable on the mortgage amount after the commencement of this Act shall be at five per cent per annum". Sub-section (6) of S.11 contemplates a case of mortgage where the property has been leased back to the mortgagor by the mortgagee. That is, even though it may have started originally as a usufructuary mortgage, if there has been a lease back by the mortgagee to the mortgagor, it is considered to be a simple mortgage and as such the provisions of S.4 may also apply. Therefore, in this case as I have mentioned, it is the first counter-petitioner who is the mortgagor and admittedly there has been no lease back to him. There is a lease, as mentioned by me, earlier, by the mortgagee-petitioner in favour of the lessee, the second respondent to this application. 12. Therefore, the question naturally arises whether the debtor, namely, the first respondent in this case, is entitled to invoke the provisions of sub-sections 1 to 5 of S.11 or sub-section 6 of S.11. In view of the fact that the transaction is a usufructuary mortgage, and in view of the further fact that the mortgagee has leased it in favour of not the mortgagor, but a third person, namely, the second respondent, the mortgagee will be considered to be a person in possession of the property or a portion thereof and therefore prima facie the proper provisions that should be applied to a transaction of this kind are sub sections (1) to (5) of S.11. 13. Now let me examine the contentions advanced by Mr. Mathew Muricken, learned counsel, on behalf of the first respondent, namely, the mortgagor. 13. Now let me examine the contentions advanced by Mr. Mathew Muricken, learned counsel, on behalf of the first respondent, namely, the mortgagor. Main reliance has been placed on the provisions contained in S.9. Before I advert to S.9, I will run through the definition of the expression 'debt' as contained in S.2 (c) of the Act and also the provisions of subsection 3 of S.4 of the Act. S.2, clause (c) defines the expression 'debt' and it takes in also a liability, whether secured or unsecured, and also several other matters mentioned in that section. S.4 deals with the payment of a debt in instalments. Sub-section 3 of S.4 clearly says : "The provisions of this section shall not apply to mortgages to which S.11 applies except as provided in sub-section (6) of that section". Sub-section 3 clearly indicates that the relief obtainable by a debtor under S.4 otherwise, will not he available to debtors in the position of usufructuary mortgagees to which sub-sections 1 to 5 of S.11 will apply. That is, putting it in a positive way, sub-section 3 of S.4 is to the effect that the provisions of S.4 will apply only to the mortgages referred to in sub-section (6) of S.11. That means, to mortgages in which properties have been leased back to the mortgagor by the mortgagee. Prima facie, in view of sub-section 3 of S.4, the debtor, namely, the mortgagor in this case, will not be entitled to rely upon the provisions of S.4. 14. The mortgagor can rely upon the provisions of S.4, only if he is permitted by law to show that what is a usufructuary mortgage is not a usufructuary mortgage but is to be considered as a simple mortgage by virtue of the provisions contained in sub-section 6 of S.11. The question is whether he is entitled to claim such a right. Admittedly such a right is based on the only provision in the Act, namely, S.9. S.9 gives a right to prove the nature of the transaction. The question is whether he is entitled to claim such a right. Admittedly such a right is based on the only provision in the Act, namely, S.9. S.9 gives a right to prove the nature of the transaction. S.9 (1) is to the effect: "Notwithstanding anything in the Indian Evidence, Act, 1872, or in any other law for the time being in force, any agriculturist may apply to the Court to re-open any Subsisting transaction, whether reduced to writing or not, on the ground that it is really a transaction of debt or that the amount mentioned in the transaction is not the actual amount and may plead, adduce evidence and prove such grounds. Thereupon the Court shall ascertain whether the transaction is debt or the amount mentioned in the transaction is the actual amount of the debt and pass an order in conformity with the other provisions of this Act." Sub-section 2 provides for an appeal against an order passed under sub-section (1). Sub-section 3 of S.9 in turn gives a right in respect of any transaction purporting to be a sale of immovable property or a lease of usufructs. The only relevant sub-section for a consideration of the matter on hand, in my opinion, is sub-section 1 of S.9. According to Mr. K.K. Mathew, there is no warrant in sub-section (1) of S.9 which will enable a court to come to the conclusion that it is open to a debtor in the position of the mortgagor first respondent to prove that what is a usufructuary mortgage, which is already a transaction of debt, is not a usufructuary mortgage but a simple mortgage, another transaction of debt. On the other hand, Mr. Mathew Muricken contended that the sub-section is framed in such a wide manner as to give a right to the first respondent to establish that though this transaction purports to be a usufructuary mortgage, it is not a usufructuary mortgage which is to be scaled down under sub-sections (1) to (5) of S.11 but is really a simple mortgage to be scaled down under sub-section 6 of S.11. 15. After a consideration of the various sections and the object of the enactment itself and also after considering the various contentions urged by learned counsel, I am in agreement with the contentions of Mr. K.K. Mathew, learned counsel for the petitioner. 15. After a consideration of the various sections and the object of the enactment itself and also after considering the various contentions urged by learned counsel, I am in agreement with the contentions of Mr. K.K. Mathew, learned counsel for the petitioner. The object of S.9 in my opinion is only to enable a debtor to claim relief on the basis of the Act in respect of a transaction which will not prima facie indicate that it is one in respect of which the provisions of the Act should be applied. It is really under this circumstance that a debtor has a right to request the court to go behind that transaction and find out whether it is not really a transaction of 'debt' in respect of which relief could be claimed by a debtor by virtue of the various provisions of the Act. There are two or three ideas mentioned in S.9 and they are as follows: (1) the provisions of the Indian Evidence Act of 1872 or any other law are ignored; (2) right is given to an agriculturist to request the court to re-open any subsisting transaction; (3) a right is given to such a debtor to prove that the subsisting transaction sought to be re-opened is really a transaction of debt; (4) lastly, power is given to the court to ascertain whether the transaction is a debt and also to give findings on ancilliary matters. If Mr. Mathew Muricken's contention is to be accepted the said section will have to be read as follows: "any agriculturist may apply to the court to re-open any subsisting transaction of debt on the ground that it is really a transaction of debt" That really will lead to a sort of inconvenient or, if I may use that expression an absurd situation. That will mean that what is a subsisting transaction of debt even originally is allowed to be proved by the debtor, to be again a real transaction of debt. In my opinion, that is certainly not a situation which is contemplated by the legislature nor is it justified by the clear expressions used by the legislature. That will mean that what is a subsisting transaction of debt even originally is allowed to be proved by the debtor, to be again a real transaction of debt. In my opinion, that is certainly not a situation which is contemplated by the legislature nor is it justified by the clear expressions used by the legislature. On the other hand, a more reasonable and logical interpretation to be placed on sub-section (1) is that in a transaction which for all outward purposes does not indicate a transaction of debt to which the provisions of the Act could be applied straightaway a right is given to a debtor to request the court to investigate the transaction and find out whether it is not really a transaction of debt to which the Act could be applied. Sub-section 1 of S.9, in my opinion, does not at all contemplate nor does it give a right to the debtor in the position of the mortgagor in the present case to show that what is even originally a transaction of debt in respect of which relief can be claimed under particular provisions of the Act is really a different transaction of debt to which certain other provisions of the Act have to be applied. It cannot also be the object of the legislature. The intention of the legislature is perfectly satisfied when in respect of a transaction of debt which is dealt with by the Act a debtor is given adequate relief by specific provisions made in the enactment itself. If really the right is given to a debtor to prove that what is one type of transaction of debt is really a different type of transaction of debt, then the words used in sub-section (1) would have been totally different. Therefore, in my opinion, the parties are governed by the document, namely, the usufructuary mortgage executed by the first respondent in favour of the petitioner on 6-4-1953. There is a lease by the mortgagee not in favour of the mortgagor first respondent but only in favour of a third party, namely, the second respondent. Under these circumstances I have already indicated, by virtue of Exception to sub-section 1 to S.11 the mortgagee shall be taken to be in possession of the property mortgaged to him in view of the fact that he has leased to somebody other than the mortgagor. Under these circumstances I have already indicated, by virtue of Exception to sub-section 1 to S.11 the mortgagee shall be taken to be in possession of the property mortgaged to him in view of the fact that he has leased to somebody other than the mortgagor. Cases of leases in favour of the mortgagor are dealt with in sub-section 6 of S.11 read with provisions of S.4. In the transaction before me, a proper relief, if at all, can be claimed by the mortgagor only on the basis of sub-sections 1 to 5 to S.11 of the Kerala Agriculturists Debt Relief Act, 31 of 1958. In this view there is absolutely no justification for the learned District Munsiff to allow any extraneous evidence to be adduced in this matter. The order of the learned District Munsiff in consequence is set aside and the C.R.P. is allowed and proper relief will be granted to the mortgagor, first respondent, on the facts indicated in my judgment. As the point involved is really one of law parties will bear their own costs. Allowed.