John Edge, Kt., C.J.
1. This is an appeal in a pre-emption suit against the judgment of the Subordinate Judge of Gorakhpur, by which be decreed the plaintiff's claim, and found that Rs. 475 was the price to be paid by the plaintiff-pre-emptor. The facts of the case are shortly these. The vendee, who is a stranger, alleged that the contract price was Rs. 775, and put in evidence the sale-deed. The plaintiff, on the other hand, alleged that the contract price was Rs. 75, and he gave evidence that a share in a neighbouring mahal had been sold for Rs. 75. The vendee and the vendor were not called to give evidence in support of the price alleged in the deed. The Subordinate Judge came to the conclusion that the price alleged in the sale-deed was not the true contract price, and he found, apparently without any evidence, that Rs. 475 was the contract price or the market-value.
2. Under these circumstances we have to consider what should be done in this and in similar cases. It appears to me that in cases of this kind, when the Judge has come to the conclusion that the price alleged in the sale-deed is not the true contract price, and where he cannot ascertain what, in fact, was the contract price, he should ascertain, if possible, what was the market-price at the time of the sale, and for these reasons: In the cases I am supposing, the vendor and the vendee either refuse to disclose by their own evidence what was the true price, or their evidence, with regard to the price, for some good reasons cannot be believed. In such cases it is frequently impossible for the plaintiff to give direct evidence as to what the true contract price was; because, in cases in which a fictitious price is inserted in the sale-deed, it is done with the intention of defeating the rights of the persons entitled to pre-emption, and the true contract price is concealed. It cannot be expected that in such cases the plaintiff would be able to give direct evidence of the actual contract price. It appears to me that in these cases the plaintiff should be prepared with the best evidence he can obtain as to what was the market-value of the share at the time of the sale. It would be doing no injustice to the vendor or the vendee, who refused to disclose what the true price was, or whose evidence for some good reason is not believed, to treat the market-value, which a prudent man would give for the share, as the price which was most probably agreed upon. In such cases the Judge should ascertain what was the market-value at the time of the sale, and accept that market-price as the probable price agreed upon between the parties.
3. In this particular case there was, as I have said, evidence on behalf of the plaintiff that Rs. 75 had been the price given for a share in an adjoining mahal. That evidence was not relied upon by the Subordinate Judge as correctly showing what was the market-value at the time of the sale. I think that this case had better go back to enable the Court below to hear further evidence, tendered by either party, as to what was the market-value of the share at the time of the sale. I do not propose that the Judge below should have to reconsider his finding that Rs. 775 was not the contract price, for that has already been decided; but I think it right that the parties should have an opportunity of putting forward some further evidence as to what the market value was. We have allowed a remand in this particular case, but in future we ought to hesitate before sending a case of this kind back. It is a part of the plaintiff's case to show either what was the actual contract price or to give substantial evidence, on which the Judge can act, showing what was the market value. It is necessarily a part of the plaintiff's case that the price should be fixed by the decree of the Judge. For unless the Judge is in a position to fix the price, it is obvious that the decree would be ineffective and a nullity. In future, in cases similar to the present, if the plaintiffs are not prepared to give substantial evidence, on which a Judge can act, as to the market value, those plaintiffs will deserve to have their cases dismissed. In the present case, however, an issue must be sent down to the Subordinate Judge to take further evidence as to the market value of the share at the time of the sale. Ten days will be allowed for objections.
4. I concur in the order proposed by the learned Chief Justice, (see Sheopargash Dube v. Dhanraj Dube, ante, p. 225).