1. This is a pre-emptors' appeal and the question argued before me is an interesting question of some importance.
2. A sale-deed was executed on 6-3-1944, in favour of Nekiram and others by one Mathuralal. On 6-3-1944, there was an exchange between the vendees, on the one side, and one Neta, on the other, under which Neta transferred three biswas in one mahal, in exchange for three biswas in three different khewats.
3. The plaintiffs brought a suit for pre-emption. Among the pleas raised in defence was a plea that the exchange conferred an indefeasible title and armed the vendees with the right to resist the suit for pre-emption.
4. The learned Munsif repelled the contention and decreed the suit. On appeal, the learned Second Civil Judge disagreed with the learned Munsif and held that the exchange conferred an indefeasible interest on the vendees and entitled them to defeat pre-emption.
5. In second appeal before me Mr. S.R.L. Gaur has contended that the transaction was, on the face of it, an improvident transaction and liable to be defeated at the instance of his sons or the remaining members of the coparcenary, even though Neta was the manager of the family, and could not confer an indefeasible title.
6. It is not disputed that the gift being of a date subsequent to the date of the sale should convey an indefeasible interest to the vendees, before they are entitled to successfully resist the plaintiffs. It has, however, been strenuously contended by Dr. N.C. Vaish that, on the finding that the quality of the land conveyed to Neta was superior to that conveyed by him, the gift must be treated as a good transaction and not liable to be defeated at the instance of his sons or other members of the coparcenary.
7. It appears to me that the learned Second Civil Judge has not devoted to the point the attention it merited. He ought to have gone into fuller detail. It was not enough to uphold the exchange simply on the ground that the quality of land received by Neta was superior. The difference of quality might be trifling or it might be substantial, it all depends upon a variety of circumstances. We do not know the exact position. But there is one feature of this transaction which is obvious. What was conveyed by Neta was a compact area in one khetvat. What was received, in return, was spread over a number of khewats. On the face of it, it was, unless otherwise justified, an improvident transaction.
8. There is yet another reason, which weighed with the learned Civil Judge. He was of opinion that Neta or his family acquired, in consequence of this transaction, a voice in the administration of three khewats and a right to claim or ward off pre-emption, in future, in all the three.
9. It is an act of doubtful prudence to sacrifice an existing advantage for the sake of a possible future benefit, which might or might not materialise and might turn out to be more sentimental than real It is, at least, difficult to say that the merits so outweigh the demerits that they definitely tip the scale in favour of the transaction.
10. The best evidence which could be produced by the vendees was the evidence of the sons of Neta or the other members of the coparcenary. If they accepted the exchange, the plaintiffs acquired an indefeasible interestand are entitled to defeat pre-emption, but if they did not, the transaction must remain a defeasible transaction and cannot arm the vendees with a right to resist the suit.
11. This Court has laid down certain dicta in Jagmohan Agrahri v. Prag Ahir : AIR1925All618 and in Amar Singh v. Shambhu Singh : AIR1932All632 which afford a guide in all such cases. According to Sir Lai Gopal Mukerji in Amar Singh v. Shambhu Singh : AIR1932All632 a transaction like the one in dispute can never be a good transaction. Sir Shah Sulaiman has not wholly condemned it, but he laid down certain tests and they have to be fulfilled before it can be justified.
12. It is, therefore, necessary to call for a finding o' the question whether the exchange 'conferred an indefeasible interest on the vendees. I send, down the following issue:
Was the transaction embodied in the exchange of 16-3-1944, one which conveyed an indefeasible interest to the vendees.
13. The learned Second Civil Judge is requested to return his finding within two months of this date. On receipt of the finding the usual ten days will be allowed for objections. The parties will be entitled to produce fresh evidence.