B. AMIN BEE v. S. D. M. , SAKALESHPUR — 1979 DIGILAW 206 (KAR)

K. A. SWAMI, J. ( 1 ) THESE writ petitions were heard together and are disposed of by a common order as they involve common questions of law. W. P. No. 410177: In this petition under Arts. 226 and 227 of the constitution, the petitioner who has purchased the agricultural land measuring 2 acres 31 guntas in Sy. No. 62 of belur, Taluk Belur, district Hassan, from the 3rd respondent under a registered sale deed dated 18-7-1968, has challenged the correctness of the order passed by the Sub Divisional Magistrate, Sakaleshpur Sub Dn. , sakaleshpur, in Case No. DRC. 132/76-77, dated 28-10-1976 allowing the application filed by the 3rd respondent under S. 4 (f) of the Karnataka Debt Relief Act, 1976 (hereinafter referred to as the Act') and further directing the petitioner to hand over the possession of the land in question to the 3rd respondent. ( 2 ) BEFORE the Sub-Divisional Magistrate, a registered sale deed! dated 18-7-1968 and also another registered document of the same date executed by the petitioner in favour of the 3rd respondent agreeing to re-convey the property sold under the aforesaid sale deed on payment of the amount named therein, were produced. On reading these two documents together and on the basis of the recitals contained in the agreement of re-conveyance, the, sub-Divisional Magistrate has come to a conclusion that the sale was only nominal. He has also further held that the transaction was one of mortgage and has accordingly declared that the alleged debt under the document stood discharged. The Sub-Divisional Magistrate has not recorded a necessary finding as to whether the 3rd respondent, was a debtor within the meaning of the Act. Without recording a, positive finding about the 3rd respondent being a debtor within the meaning of the Act, the application of the 3rd respondent filed under S. 4 (f) of the Act, could not have been allowed by the sub-Divisional Magistrate. On this score alone, the impugned order would have been quashed and the matter would have been remitted for fresh consideration. But, it was contended, on behalf of the petitioner that in view of the i'act that the transaction in. question being one of sale, there is no scope for remitting the matter for fresh consideration. On this score alone, the impugned order would have been quashed and the matter would have been remitted for fresh consideration. But, it was contended, on behalf of the petitioner that in view of the i'act that the transaction in. question being one of sale, there is no scope for remitting the matter for fresh consideration. ( 3 ) SRI S. Vijayashankar, the learned Counsel for the petitioner, submitted that the Sub-Divisional Magistrate had no jurisdiction to enquire into the, transaction evidenced by a registered sale deed as to whether the transaction was one of mortgage or sale. In other words, it was contended that the Sub-Divisional Magistrate had no jurisdiction to go behind the document and enquire into the nature of the transaction in view of the fa,ct that the transaction in question was evidenced by a registered sale, deed. Merely because the petitioner has executed an agreement of re-conveyance of the same date, it was contended that it cannot be held that the transaction was one of mortgage, therefore, the Sub-Divisional Magistrate had no jurisdiction to go into the matter and to declare that the transaction, in question was one of mortgage. It was also further submitted that in view of the provisions contained in the proviso to S- 58 (c) of the Transfer of Property Act, the document of sale shall not be treated to be a mortgage unless the condition, is embodied in the document which effects or purports to effect the sale. Relying upon the aforesaid proviso, it was contended that in the instant case, the agreement of re-conveyance having been incorporated in a separate document, both cannot be, read together in order to find out whether the transaction is a mortgage. It was also further contended that the execution of a separate agreement of re-conveyance is itself proof of the fact that the transaction evidenced by the document in question was an absolute sale as otherwise, there was no question of re-conveyance. ( 4 ) SRI Radhakrishna, the learned counsel for the 3rd respondent, submitted that in view of the recitals contained in both the documents which have to be read together the transaction was one of mortgage, therefore, the Sub-Divisional Magistrate had the jurisdiction to entertain the application and to grant the relief to the 3rd respondent. ( 4 ) SRI Radhakrishna, the learned counsel for the 3rd respondent, submitted that in view of the recitals contained in both the documents which have to be read together the transaction was one of mortgage, therefore, the Sub-Divisional Magistrate had the jurisdiction to entertain the application and to grant the relief to the 3rd respondent. He further submitted that the opening words contained in S. 4 of the Act, have got over-riding effect and as such, notwithstanding anything contained in the proviso to S. 58 (c) of the, Transfer of Property Act, it was open for the Sub-Divisional Magistrate to enquire into the nature of the transaction and to find out whether in substance there was a mortgage. The learned, Counsel also further relied upon the cefinition of the word "debt" contained in the Act, which means any liability in cash or in kind, whether decreed or not and includes any amount which is in substance a debt. As such, it was submitted that if the two documents are read together, they create a liability which can be said to be in substance a debt, hence according to the learned Counsel for the 3rd respondent, the Sub-Divisional magistrate had jurisdiction to go into the matter. But, however, the learned counsel was not in a position to point out that the jurisdiction of the Sub-Divisional Magistrate under the Act extended to other debts, other than those covered by mortgages and pledges in view of the provisions contained in S. 4 (e) and (f) of the Act. The learned Counsel however submitted that the expression mortgage occurring under sub-sec, (f) of S. 4 of the Act, must also be construed to include a transaction which is, in substance a mortgage even though there is no mortgage. The learned Counsel tried to receive support from a decision of the High Court of Calcutta in Banku behari v. Kalyanidebi (1 ). ( 5 ) IN view of these contentions, the following questions arise for consideration: (I) Whether the two documents in question could be read together and if so, whether the said documents spell out a mortgage? (II) Having regard to the provisions contained in S. 4 of the Act, whether in the case of a sale coupled with an agreement of reconveyance evidenced by two separate documents, is it open to construe that it is a transaction of mortgage by conditional sale? (II) Having regard to the provisions contained in S. 4 of the Act, whether in the case of a sale coupled with an agreement of reconveyance evidenced by two separate documents, is it open to construe that it is a transaction of mortgage by conditional sale? ( 6 ) THE contention of the learned counsel for the 3rd respondent is that in view of a non-obstante clause occurring in the first portion of S. 4 of the Act, the Sub-Divisional Magistrate, notwithstanding the provisions contained in, the proviso to S. 58 (c) of the transfer of Property Act, can go behind, the document and enquire into the nature of the transaction, in order to find out whether the transaction is in substance, a mortgage and whether there is, in substance, a debt- Prior to the addition of the proviso to S. 58 (c) of the, Transfer of Property Act, by the transfer of Property Amendment Act (XX of 1929), there was controversy as to whether in the case of the transaction evidenced by two documents, one evidencing the sale and the other evidencing the agreement of reconveyance, the transaction should be interpreted as a mortgage by conditional sale or sale with a. condition of repurchase. In order to do away with this controversy the Transfer of Property act, came to be amended by adding a proviso to S. 58 (c) of the Transfer of property Act. The said proviso reads as follows:"provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale. "the effect of this proviso is that no document of sale can be treated as a mortgage, unless the document effecting the sale itself contains a recital to that effect. The whole object is to exclude or shut out oral evidence to be adduced in the case when such a condition is contained in a separate document. Thus, if the document effecting a sale does not contain a stipulation regarding the conversion of the sale into a mortgage and such a stipulation is contained in a separate document, in such a case, it is not at all open in law to enquire into the nature of the transaction and to take extrinsic evidence for holding that the document which purports to be an absolute sale isi in reality, a mortgage. In the instant case, the document in question purports to be an absolute sale and it does not contain any stipulation for treating the sale as mortgage. The agreement of reconveyance is embodied in a separate document. Both the documents, cannot be treated as one document irrespective of the fact that both the documents are contemporaneous and the transaction also cannot be regarded as a mortgage. The Supreme Court, in the case of chunchun Jha v. Ebadat Ali, AIR 1954 SC 345 . has held as follows:"because of the welter of confusion caused by a multitude of conflicting decisions the legislature stepped in and amended S. 58 (c) of the Transfer of Property Act. Unfortunately, that brought in its train a further conflict of authority. But this much is now clear. If the sale and agreement to repurchase are embodied in separate documents then the transaction cannot be a mortgage whether the, documents are contemporaneously executed or not. But the converse does not hold good, that is to say the mere fact that there is only one document does not necessarily mean that it must be a mortgage and cannot be a sale. If the condition of repurchase is embodied in the document that effects or purports to effect the sale, then it is a matter for construction which was meant. " ( 7 ) HOWEVER, it was contended that in the agreement of reconveyance the sale deed, has been described as nominal one, therefore, though the document purports to be an absolute sale but in fact, it is not so in view of the recitals contained in the agreement of reconveyance. Such a recital in the agreement of reconveyance cannot have any effect on the document which purports to be an absolute sale. Such a recital in the agreement of reconveyance cannot have any effect on the document which purports to be an absolute sale. The fact that the parties have entered into an agreement of reconveyance by a separate deed, itself is proof of the fact that the document which purports to be an absolute sale is, in reality, a sale and had the effect of transferring the title in favour of the vendee, therefore, there was an agreement of reconveyance entered into between the parties If such a recital in the agreement of reconveyance had the effect of making the sale ineffective or regarding it as one of mortgage there was no question of having an agreement of leconveyance executed by the vendee in favour of the vendor insmuch sms in such a situation, no title would have passed to the vendee. ( 8 ) EVEN otherwise, and without prejudice to what has been held above, and assuming for a moment that it is permissible in law to read both the documents in question together as one document in order to find out whether the transaction is a mortgage or not, the best general test is to find out whether there does or does not exist a power in the original purchaser to recover the amount fixed in the document as the price for such repurchase- If there is no such power existing in the original purchaser as per the recitals contained in the document of reconveyance, the transaction cannot at all be treated as mortgage, inasmuch as the essential right of a creditor to recover the money from a debtor is not existing, thereby there will not be a relationship of creditor and debtor which is one of the essential features of a mortgage. On a reading of both the documents in question, it is clear that no right is given to the purchaser to recover the amount fixed in the agreement of reconveyance as the price for such repurchase. Therefore, the essential right which a creditor enjoys to recover the amount from a debtor is itself not found. Hence, apart from the provisions contained in the proviso to s. 58 (c) of the Transfer of Property act, the transaction in question cannot be regarded as a mortgage. Therefore, the first question raised for determination is to be answered in the negative. Hence, apart from the provisions contained in the proviso to s. 58 (c) of the Transfer of Property act, the transaction in question cannot be regarded as a mortgage. Therefore, the first question raised for determination is to be answered in the negative. ( 9 ) THE answer to the second question depends upon the interpretation as to the scope and effect of the first portion of S. 4 of the Act, and also clauses (e) and (f) thereof. S. 4 of the Act, reads as follows:"relief from indebtedness. Therefore, the first question raised for determination is to be answered in the negative. ( 9 ) THE answer to the second question depends upon the interpretation as to the scope and effect of the first portion of S. 4 of the Act, and also clauses (e) and (f) thereof. S. 4 of the Act, reads as follows:"relief from indebtedness. Notwithstanding anything in any law for the time being in force or in any contract or instrument having force by virtue of any such law and save as otherwise expressly provided in this Act, with effect from the date of commencement of this section, (a) every debt advanced before the commencement of this section including the amount of interest, if any, payable by the debtor to the creditor shall be deemed to be wholly discharged; (b) no civil court shall entertain any suit or proceeding against the debtor for the recovery of any amount of such debt including interest, if any: provided that where a suit or proceeding is instituted jointly against the debtor and any other person, nothing in this section shall apply to the maintainability of the suit or the proceeding in so far as it relates to such other person; (c) All suits and proceedings (including appeals, revisions, attachments or execution proceedings) pending on the said date against any debtor for the recovery of any such debt shall abate: provided that nothing in this clause shall apply to the sale of (i) any movable property held and concluded before the commencement of this section; (ii) any immovable property confirmed before such commencement; (d) every debtor undergoing detention in a civil prison in execution of any decree for money passed against him by a Civil Court in respect of any such debt shall by released; (e) every movable property pledged by a debtor shall stand released in favour of such debtor and the creditor shall be bound to return the same to the debtor forthwith and where the creditor fails to do so, the debtor shall on application made to the sub-Divisional Magistrate or any other executive Magistrate authorised by the State Government in this behalf having jurisdiction over the place where the debtor resides be entitled to the return of the same; (f) every mortgage executed by the debtor in favour of the creditor shall stand redeemed and the mortgaged property shall be released in favour of such debtor and where the creditor fails to do so, the Sub-Divisional magistrate or any other executive magistrate authorised by the State government in this behalf having jurisdiction over the place where the mortgaged property is situate may, suo moto or on application of the debtor and after such inquiry as he may deem fit, put the debtor in possession of the mortgaged property. Explanation: nothing in this section shall be construed as entitling any debtor for refund of any part of any debt already repaid by him or recovered from him before the commencement of this section. "the expression 'debt' is defined by S. 3 (b) of the Act, as follows:" 'debt' means any liability in cash or in kind, whether decreed or not and includes any amount which is in substance a debt; but does not include arrears of taxes due to the central or the State Government or a local authority. "it was contended that the provisions contained in the proviso to S. 58 (c) of the Transfer of Property Act, cannot be taken into consideration for the purpose of finding out as to whether the transaction in question is one of mortgage or not in view of the non-obstante clause contained in the first portion of S. 4 of the Act. As quoted above, S. 4 of the Act opens with the clause that notwithstanding anything in any law for the time being in force or in any contract or instrument having force by virtue of any such law and save as otherwise expressly provided in the Act, with effect from the date of commencement of S. 4, the consequences mentioned in clauses (a) to (f) of the section will follow. ( 10 ) THE scope and effect of a non-obstante clause has been dealt with by the Supreme Court in more than one case. Therefore, it is necessary to advert to the relevant portions in the two decisions of the Supreme Court on this point:"turning now to the non-obstante clause in Sec. 2 of the new Act, which appears to have furnished the whole basis for the reasoning of the Court below, and the argument before us closely followed that reasoningwe find the learned; judges begin by inquiring what are the previsions which that clause seeks to supersede and then place upon the enacting clause such construction as would make the right conferred by it coextensive with the disability imposed by the superseded previsions. "the meaning of the section will become clearer", they observe, "if we examine a little more closely what the section in fact supersedes or repeals -. . . . The disability which the section removes and the right which it confers are co-extensive. "the meaning of the section will become clearer", they observe, "if we examine a little more closely what the section in fact supersedes or repeals -. . . . The disability which the section removes and the right which it confers are co-extensive. " This is not, in our judgment, a correct approach to the construction of S. 2. It should first be ascertained what the enacting parts of the section provides on a fair construction of the words used according to their natural and ordinary meaning, and the non-obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing laws which is inconsistent with the new enactment. " Aswini Kumar v. Arbinda Bose, AIR 1952 SC. 369 . "while recognising the force of this argument it is however necesrsary to observe that although ordinarily there should be a close approximation between the non-obstante clause and the operative part of the section, the non-obstante clause need not necessarily and always be co-extensive with the operative part, so as to have the effect of cutting down the clear terms of an enactment. If the words of the enactment are clear and are capable of only one interpretation on a plain and grammatical construction of the words thereof a non-obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases the non-obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of abundant caution and not by way of limiting the ambit and scope of the operative part of the enactment. "dominion of India v. Shrinbai, AIR 1954 SC 596 . Thus, the non-obstante clause operates to remove obstacles contained in the relevant existing laws which come in the way of giving effect to the provisions contained in the enactment to which the non-obstante clause is Attached. The non-obstante cla,use cannot be construed to widen the scope and effect of the enactment to which the non -. obstante clause is attached nor can a non-obstante clause be interpreted to water down the natural scope and effect of the enactment to which it is attached. The non-obstante cla,use cannot be construed to widen the scope and effect of the enactment to which the non -. obstante clause is attached nor can a non-obstante clause be interpreted to water down the natural scope and effect of the enactment to which it is attached. The object of the Act is to provide relief from indebtedness to a debtor as defined under the Act in respect of a debt as defined thereunder. Sec. 4 of the Act, to which the non-obstante clause is attached, deals with relief fron indebtedness. It provides that with effect from coming into force of the said section, every debt advanced before the commencement of the said section including the interest thereof, payable by the debtor to the creditor shall be deemed to be fully discharged. Clause (b) of S. 4 of the Act provides that no Civil Court shall entertain any suit or proceeding against the debtor for the recovery of any amount of such debt including interest if any. Clause (c) of Sec. 4 provides that all suits and proceedings including appeals, revisions, attachment or execution proceedings pending on the date of the coming into force of S. 4 of the Act, against a debtor for the recovery of a debt shall abate. Clause (d) of Sec. 4 provides that every debtor undergoing detention in a Civil prison in execution of any decree for money passed against him by a Civil Court in respect of any such debt shall be released- Clause (e) of Sec. 4 empowers the Sub Divisional Magistrate or any other executive Magistrate authorised by the State government in this behalf to direct the creditor to return every movable property pledged by a debtor on the application made by the debtor. Similarly, clause (f) of Sec. 4 of the act empowers the Sub Divisional magistrate or any other executive magistrate authorised by the State government in this behalf, suo motu or on application of the debtor to release the mortgaged property in the case of every mortgage executed by the debtor in favour of the creditor. Similarly, clause (f) of Sec. 4 of the act empowers the Sub Divisional magistrate or any other executive magistrate authorised by the State government in this behalf, suo motu or on application of the debtor to release the mortgaged property in the case of every mortgage executed by the debtor in favour of the creditor. Thus from what has been stated above, it is clear that S. 4 of the Act deals with extinguishing of the debt existing on the date of commencement of the said section, which was incurred by a debtor as defined under the Act and takes away the right of the creditor to recover the debt and bars the Civil court from considering any such claim of the creditor. It may also be noticed here that the proviso to clause (c) of s. 4 further makes it clear that the provisions relating to abatement of the proceedings shall not apply to the sale of any movable property held and concluded and sale of any immovable property confirmed before the commencement cf S 4 of the Act. Further, S, 8 of the Act excludes certain debts and liabilities from the purview of the act. Neither Sec. 4 nor the other provisions contained in the Act, take into their fold the sale transactions or the transactions in which there was no debt involved and there was no relationship of creditor and debtor. Further, there is no provision contained in the Act, enabling the sub-Divisional Magistrate or any other executive Magistrate authorised by the State Government in this behalf to reopen the transaction of sale and to find out whether the transaction is in reality, a sale or a mortgage. Thus, having regard to the scope and object of the Act and the provisions contained in Sec. 4 of the Act, in which the non-obstante clause is incorporated, it cannot be held that the Act covers any transaction which does not involve a debt and in which there is no relationship of creditor and debtor. Hence, it cannot be held that the non-obstante clause which is incorporated in Sec. 4 of the Act, has the effect of excluding the application of the provisions contained in the proviso to Sec. 58 (c) of the transfer of Property Act to proceedings under the Act. Hence, it cannot be held that the non-obstante clause which is incorporated in Sec. 4 of the Act, has the effect of excluding the application of the provisions contained in the proviso to Sec. 58 (c) of the transfer of Property Act to proceedings under the Act. If it is to be interpreted that by reason of a non-obstante clause occurring in S. 4 of the Act, the bar contained in the proviso to sec. 58 (c) of the T. P. Act, is removed or taken away, it would be widening the scope and intendment of Sec. 4 of the Act. S. 4 of the Act, as pointed out intends to extinguish the existing debt of the debtor within the meaning of the Act and to take away the right of the creditor to recover the said debt from the debtor. That being so, the non-obstante clause occurring in Sec. 4 of the Act, cannot be interpreted in such a manner so as to exclude the applicability of the provisions contained in the proviso to Sec. 58 (c) of the Transfer of Property Act, to the proceedings under the Act. Hence, the contention of Sri Radhakrishna, the learned Counsel for the 3rd respondent, that in view of the non obstante clause occurring in Sec- 4 of the Act, it was open for the Sub Divisional magistrate to go behind the sale deed and enquire into the application in order to find out whether the transaction in question was, in reality, a sale or mortgage, cannot at all be accepted. If the Legislature intended to exclude the application of the provisions contained in the proviso to Sec. 58 (c) of the Transfer of Property Act, then there would have been a provision in the Act enabling the authorities functioning under the act, to re-open the transaction of sale in order to find out whether the 'transaction was, in reality a sale or mortgage. In fact, such a provision is found in S. 23 of the Karnataka, agricultural Debtors Relief Act, 1966. In the absence of any such provision' it is not possible to accept the contention of Sri Radhakrishna and to hold that the provisions contained in the proviso to Sec. 58 (c) of the transfer of Property Act, are excluded from operation in respect of cases falling under Sec. 4 of the Act. In the absence of any such provision' it is not possible to accept the contention of Sri Radhakrishna and to hold that the provisions contained in the proviso to Sec. 58 (c) of the transfer of Property Act, are excluded from operation in respect of cases falling under Sec. 4 of the Act. ( 11 ) CLAUSES (e) and (f) of Sec. 4 of the Act in clear terms provide that the authorities functioning under the act, having jurisdiction over the place where the debtor resides in the case of pledges and where the mortgaged property is situated in the case of mortgages to deal with every moverable property pledged by a debtor and every mortgage executed by the debtor in favour of the creditor. Therefore, it is clear that in the absence of any pledge or a deed of mortgage, the authorities exercising power under clauses (e) and (f) of S. 4 of the act, shall not have jurisdiction, to entertain the application. There must be a document evidencing the mortgage executed by a debtor which is clear from clause (f) of Sec. 4 of the Act, which provides that every mortgage executed by the debtor in favour of the creditor shall stand redeemed. Therefore, it is not open for the authorities exercising power under clause (f) of Sec. 4 of the Act, in the absence of a mortgage deed to enquire into the application in order to find out whether on the facts and circumstances of the case, there in substance, exists a mortgage. Therefore, it is not open for the authorities exercising power under clause (f) of Sec. 4 of the Act, in the absence of a mortgage deed to enquire into the application in order to find out whether on the facts and circumstances of the case, there in substance, exists a mortgage. ( 12 ) SRI Radhakrishna, the learned counsel for the 3rd respondent, sought to place reliance on the following passage from a decision of the High Court of Calcutta in Banku behari v. Kalyani Debi (1):"my attention has been drawn to the decision of the Supreme Court, reported in Chunchun Jha v. Ebadat Ali, AIR 1954 SC 345 and to the subsequent decisions of the same Court, substantially to the same effect, in Bhaskar Waman joshi v. Shrinarayan Rambilas agarwal, AIR 1960 SC 301 at p. 304 and Simrathmull v. Nanjalingiah gowder, AIR 1963 SC 1182 at p. 1184 for the purpose of emphasising that, in view of the above two separate documents, no question of mortgage under the law, that is, under the Transfer of Property Act, would arise in the instant case, that, however, as we have said in our above judgment ILR (1965) 1 cal. 59, vide, in particular pages 63-64, would not conclude the matter, so far as the Bengal money Lenders Act is concerned, and the learned Additional District judge is right in treating our said decision as an authority for the proposition that even though invalid as a mortgage, the transaction may still be a "loan in substance'' so as to be a 'loan,' within the meaning of S. 2 (12) of the bengal Money Lenders Act. "in this connection, Sri B. Vedanta lyengar, the learned Counsel for the petitioner in W. P. 10820 of 1976, which was also heard along 'with this writ petition, submitted that the aforesaid decision is not applicable to the facts of the present case inasmuch as S. 37 (a) of the Bengal Money Lenders act specifically provided for reopening the transaction of sale in order to find out whether in reality there was a sale or mortgage. As already pointed out, the Act in question does not provide for re-opening of a sale transaction. As already pointed out, the Act in question does not provide for re-opening of a sale transaction. Further, while dealing with the cases falling under clauses (e) and (f) of Sec. 4 of the Act it is not necessary, to go into the question as to whether there is, in substance a debt as per the definition of the word "debt" found in S. 3 (b) of the Act, in as much as both in the case of a pledge and a mortgage, there will be a debt and there will be a relationship of creditor and debtor. Therefore, in respect of the cases falling under clauses (e) and (f) of Sec. 4 of the Act, it is not necessary to find out whether there is, in substance, a debt. Thus the aforesaid decision of the Calcutta high Court is not of any assistance and is not applicable to the, facts of the case on hand. ( 13 ) SRI Radhakrishna, the learned counsel for the 3rd respondent, relied upon a Full Bench decision of this court reported in Dassappa v. Jogiah, (1964) 1 Mys. L. J. 254. It is to be pointed out that the said decision is not applicable to the facts of the present case inasmuch as the two questions that were considered in the aforesaid decision, are as follows: 1. Whether the provisions of Sec. 5 of the Mysore Agriculturists, relief Act apply only to transactions which took place at any time within a period of six years before the Act was extended to the local area concerned or whether those provisions are also applicable to transactions entered into subsequent to such extension?"2. Whether the above provisions have ceased to be operative after the introduction of the Central Evidence act and Central Transfer of Property Act to Mysore, as being contrary to the provisions of those enactments?"it is very pertinent to note that Sec. 5 of the Mysore Agriculturist's Relief act (18 of 1928) provided for determining the nature of transaction and to admit evidence of an oral agreement or statement. Therefore, the; said decision is of no assistance to the learned Counsel for the 3rd respondent. ( 14 ) ACCORDINGLY, the second question is also answered in the negative. (15 ) W. P. No. 10820 of 1976. Therefore, the; said decision is of no assistance to the learned Counsel for the 3rd respondent. ( 14 ) ACCORDINGLY, the second question is also answered in the negative. (15 ) W. P. No. 10820 of 1976. In this writ - petition, the petitioner has challenged the correctness of the order passed by the Sub Divisional Magistrate, Bangalore Sub division, Bangalore, in No- MAG. 2/76-77, dated 22-6-1976, allowing the application filed by the 2nd respondent under 3, 4 (f) of the Act. ( 16 ) IT is not in dispute that the 2nd respondent sold the property in question bearing site "no. 15, A. K. Colony, Suddaguntapalya, to the petitioner for Rs. 8,000/- under a registered sale deed dated 10-9. 1973 and on the same date, the petitioner had also executed an agreement of reconveyance in favour of the 2nd respondent agreeing to reconvey the property in favour of the 2nd respondent providedi the 2nd respondent pays the amount as mentioned in the sale deed within five years along with the amount spent on repairs of the house and also the interest on the amount spent on repairs. There is also a further recital in the said document that if the 2nd respondent fails to pay the amount as mentioned in the agreement of reconveyance, the transaction shall be treated as absolute sale and the agreement of reconveyance shall be treated as cancelled. ( 17 ) SRI Rego, the learned Counsel for the 2nd respondent, submitted that the decision rendered on the aforesaid two questions, cannot at all be applied to this case in asmuch as in the instant case, in the agreement of reconveyance itself, it has been stated that on the failure to perform the conditions mentioned in the agreement of reconveyance, the transaction shall be treated as absolute and not otherwise. Therefore, the learned Counsel submitted that the parties did not intend to treat the first document as a document evidencing the sale, as such the earlier document which purports to be a sale cannot be considered as a sale in view of the recitals contained in the agreement of reconveyance, and the first document should be regarded as mortgage by conditional sale. It has been pointed out in the, preceding paragraphs that the provisions contained in the proviso to sec. It has been pointed out in the, preceding paragraphs that the provisions contained in the proviso to sec. 58 (c) of the Transfer of Property act, are applicable and as such, the document Ext-A (sale deed) cannot be read as a mortgage by conditional sale in view of the fact that the recitals regarding reconveyance are found in a separate document of agreement of reconveyance and not in the document which has effected or purported to effect the sale. Therefore, the contention advanced by Sri ' Rego the learned Counsel for the 2nd respondent, cannot at all be accepted. ( 18 ) SRI Rego, learned Counsel for the 2nd respondent, contended that though the petitioner had purchased the entire property for Rs. 8,000, subsequently he also sold a portion of the schedule property under a registered sale deed for Rs. 8,500 to another person and this circumstance goes to indicate that the transaction was a mortgage by conditional sale and not a sale as otherwise the entire property would not have been sold for Rs. 8000. This argument is nothing but an attempt to overcome the effect of the proviso to S. 58 (c) of the Transfer of Property Act. The very object of the said proviso is tc do away with the enquiry into the nature of the transaction in order to find out whether the document is one of mortgage by conditional sale or sale. Therefore, the submission made by Sri Rego cannot at all be accepted. ( 19 ) THUS, it is clear that the document executed by the 2nd respondent being one of sale, merely because there is an agreement of reconveyance executed by the petitioner, the document of sale cannot be treated as mortgage by conditional sale so as to give jurisdiction to the. Sub Divisional magistrate to enquire into the matter. Consequently, the order passed by the Sub Divisional Magistrate is without jurisdiction and the same is liable to be quashed. ( 20 ) W. P. No. 8353 of 1976: In this petition, the petitioner who has purchased the premises bearing Municipal no. 208, in Temple Street, Sakaleshpur hassan district, from the 2nd respon- dent, has challenged the correctness of the order passed by the Sub Divisional magistrate, Sakaleshpur, in Case No. DRO. PRS. 12/76-77, dated 29. 7. ( 20 ) W. P. No. 8353 of 1976: In this petition, the petitioner who has purchased the premises bearing Municipal no. 208, in Temple Street, Sakaleshpur hassan district, from the 2nd respon- dent, has challenged the correctness of the order passed by the Sub Divisional magistrate, Sakaleshpur, in Case No. DRO. PRS. 12/76-77, dated 29. 7. 1976, allowing the application filed by the 2nd respondent under Section 4 (f) of the Karnataka Debt Relief Act. ( 21 ) IT is not in dispute that the 2nd respondent had executed a registered sale deed dated 4. 6. 1969 in favour of the petitioner transferring the property in question for RS. 10,500. On the same date, the petitioner and her husband both together have executed an agreement of reconveyance in favour of the 2nd respondent agreeing to reconvey the property in question on payment of the amount of Rs. 10,500 and also the interest at the rate of 12 percent per annum. ( 22 ) DURING the course of this order, it has already been held that in view of the provisions contained in the proviso to S, 58 (c) of the Transfer of Property act, it is not open to rqad both the documents together and hold that the transaction is a mortgage by conditional sale. However, Sri S. V. Shama Rao, the learned Counsel for the 2nd respondent, submitted; that it was open for the sub-Divisional Magistrate to find out whether there was a mortgage as, according to the learned Counsel, a reading of both the documents together would lead to an inference that the transaction was a mortgage, therefore, on being found that 2nd respondent was a debtor within the meaning of the act, the Sub-Divisional Magistrate had jurisdiction to grant the relief. He also further submitted that in view of the agreement of reconveyance executed by the petitioner and her husband on the the same date agreeing to reconvey the property on payment of the sale consideration plus the interest thereon; and specially in view of the recitals in the agreement of reconveyance regarding the payment of interest, it was submitted that the amount paid under the sale deed was a loan and the parties intend. ed to create a mortgage by conditional sale only and not a sale as such. ed to create a mortgage by conditional sale only and not a sale as such. Hence, it was submitted that the order passed the Sub-Divisional Magistrate is not liable to be interfered with. ( 23 ) THE document Ext. A is a sale out and out- As far as Ext. B is concerned, it is an agreement of reconveyance, under which the petitioner and her husband have agreed to reconvey the property sold under the sale deed Exhibit 'a' on payment of the sale consideration plus the interest. It is also stated in the agreement that the consideration amount was taken as a loan. In view of the fact that the conditions of reconveyance are not contained in the document of sale itself and as the same are found in the other document, it is not open to hold on the basis of the recitals contained; in the agreement of reconveyance that the transaction was one of mortgage by conditional sale. It will be contrary to the provisions contained in the proviso to S. 58 (c) of the Transfer of Property act. This aspect of the matter has already been dealt with in the preceding paragraphs of this order. The existence of mortgage executed by the debtor is a condition precedent for the exercise of jurisdiction under S. 4 (f) of the Act, which provides that every mortgage executed by the debtor in favour of the creditor shall stand redeemed and the mortgaged property shall be released in favour of the debtor. In the absence of any such document, it is not open for the Sub-Divisional Magistrate to go behind the document of sale and to enquire into the matter and to find out by extrinsic evidence; as to whether there is, in sub-stance, a mortgage. That being so, the aforesaid contention of Sri Shama Rao, cannot be accepted. ( 24 ) IN view of the fact that the transaction was one of sale, the order passed by the Sub-Divisional Magistrate is without jurisdiction- Consequently the same is liable to be quashed. ( 25 ) FOR the reasons stated above, all the three writ petitions are allowed. The order dated 28-10-1976 passed by the Sub-Divisional Magistrate, Saka- leshpur Sub-Division, Sakaleshpur in no. DRC 132/1976-77 produced in Ext. B. in W. P. No. 410177, the order dt. 22-13-197,6 passed by the Sub-Divisional Magistrate, Bangalore. Sub-Division, Bangalore, in No. MAG. ( 25 ) FOR the reasons stated above, all the three writ petitions are allowed. The order dated 28-10-1976 passed by the Sub-Divisional Magistrate, Saka- leshpur Sub-Division, Sakaleshpur in no. DRC 132/1976-77 produced in Ext. B. in W. P. No. 410177, the order dt. 22-13-197,6 passed by the Sub-Divisional Magistrate, Bangalore. Sub-Division, Bangalore, in No. MAG. 2 of 1976-77, produced as Exhibit-G in writ petition No, 10820 of 1976 and the order dated 29-7-1976 passed by the sub Divisional Magistrate, Sakaleshpur sub Division, Sakaleshpur, in Case No. DRO. PRS- 12/76-77, produced as exhibit-C in writ petition No. 8353 of 1976, are hereby quashed. Rule is made absolute. --- *** --- .