1. This is a plaintiff's appeal arising out of a suit for pre-emption. The facts may be shortly stated. On 22nd July 1941 defendant 3 executed a sale deed in favour of defendant 1 in respect of the property in dispute. The plaintiff's case is that he and the defendant 3 were co-sharers and that he has got a preferential right of preemption against the vendee. Defendant 2 was impleaded upon the ground that he was the real purchaser and allowed the name of defendant 1 to be entered in the sale deed as his benamidar. As regards the sale consideration, the plaintiff averred that the sale price as entered in the sale deed, namely, Rs. 1100 was not the true sale price and the real consideration of the sale deed was only Rs. 500. The suit was defended inter alia on the ground that defendant 2 was the real purchaser, and that Rs. 1100 was the true sale consideration. The learned Munsif before whom the suit came on for trial came to the conclusion that defendant 2 was the real purchaser and decreed the suit on payment of Rs. 797 which, according to him, was the true sale price. From this decree defendant 2 preferred an appeal and the learned District Judge modified the decree of the learned Munsif and held that the plaintiff should deposit Rs. 1100 which, according to him, was the market price of the property in dispute, instead of the sum of RS. 797 as a condition for obtaining possession over the said property. From this decree of the learned District Judge, the plaintiff has come up in appeal to this Court and the only point argued before me is that the learned District Judge has not observed the procedure laid down in Section 17, Agra Pre-emption Act. I find myself in agreement with this contention. In order to appreciate this question, it is necessary to set out how the Courts below have dealt with the matter. It may be noted that the ostensible sale consideration as entered in the sale-deed is Rs. 1100 which consists of the following items : (a) Rupees 750 paid in cash at the time of registration, (b) Rupees 47 paid to defendant 8 for completion of the sale, (c) Rupees 303 set off against a debt due from defendant 3 to defendant 1 on the basis of a promissory note, dated 20th June 1941 executed by defendant 8 in favour of defendant 1.
2. The learned Munsif cast upon the plaintiff the initial onus of proving that the ostensible sale price was not true and after holding that according to the recent Government circulars the price of the property in dispute appeared to be Rs. 555-12-0 he held that the burden of proving the actual price shifted on to the vendee and the duty of proving the actual price rested on him. Then the learned Munsif proceeded to consider item by item whether the vendee had succeeded in proving the price as mentioned in the sale deed. With regard to the first two items of Rs. 750 and Rs. 47 mentioned above, the learned Munsif reached the conclusion that the item of Rs. 750 was paid in cash before the Sub-Registrar and that second item of Rs. 47 had also been paid by the vendee. With regard to item 3, he was of opinion that this was a fictitious item and there was really no debt due by defendant 3 to defendant 1 and thus the payment of the sum of Rs. 303 was not proved. Having reached this conclusion, the learned Munsif passed a decree on payment of a sum of Rs. 797 as mentioned above. He did not feel concerned with the question of the market value of the property in dispute. In appeal, the learned District Judge criticised the method of approach adopted by the learned Munsif. The learned District Judge took the view that 'It must be shown conclusively that the sale deed is for an amount considerably higher than the market value' and he at once proceeded to determine the market value of the property in question with reference to a number of transactions which he described as collateral transactions. Having determined the market value in this manner, he considered that 'It is, quite unnecessary to go into the question of actual consideration which passed between the one defendant and the other.' In my judgment, the learned District Judge has reversed the correct process and has dealt with the question in a manner opposed to the true meaning of Section 17, Agra Pre-emption Act. The question whether the price mentioned in the sale deed is an inflated one came up before the Courts so frequently that the Legislature considered it necessary, while enacting the Agra Pre-emption Act, to lay down rules for determining the sum on payment of which a decree for pre-emption should be passed. The relevant portion of Section 17, Agra Pre-emption Act, 1922, as it stands at present, runs thus:
(1) Where in any suit on the basis of a sale the Court is of opinion that the plaintiff has a right of pre-emption but that the ostensible price was not the actual price, it shall ascertain the actual price, and shall pass a decree for preemption on payment of such price.
(2) In such case the burden of proving the actual price shall lie on the vendee, and in the absence of satisfactory proof the Court shall ascertain the market value of the property and shall pass a decree for pre-emption on payment of the value so found.
3. It is worthy of note that the words 'is of opinion' did not exist in the section as originally framed in 1922. These words were substituted for the word 'finds' by Act 9 [IX] of 1929. The word 'finds' came in for interpretation before a Bench of this Court consisting of Lindsay J. and Sulaiman J. (as he then was) in Abdul Ghafur v. Kamal Uddin : AIR1927All441 and their Lordships expressed the opinion that that word did not mean that the Court must come to a definite conclusion that the ostensible price was not the actual price, but the meaning was that some evidence must be given by the plaintiff in order to raise a presumption that the ostensible price was not the price actually paid. They further held that a presumption of this kind having been raised, the burden of proof then shifted on to the vendee and he had to satisfy the Court that the price shown in the deed was the price actually paid by him and if he fails to do so, then all the Court can do is to enter into the evidence regarding the market value of the property and pass a decree for pre-emption on payment of the market value so found. The word 'finds' having given rise to controversy the Legislature considered it necessary to make its meaning more explicit by substituting the expression 'is of opinion' in lieu of the word 'finds' thereby making, it clear, that it is not necessary that the plaintiff should conclusively prove that the ostensible sale price was not the actual price and all that was necessary was that he should lead prima facie evidence with a view to enable the Court to hold the opinion that ostensible price was not the actual price without coming to a definite conclusion as to the actual amount of the sale consideration. The law upon this point was placed beyond doubt by the decision in Dhanukdhari Singh v. Suresh Singh ('30) 17 A.I.R. 1930 All. in which a Bench consisting of Sulaiman and Kendall, JJ. laid down that:
it is open to the plaintiff either to show circumstances antecedent or lead some prima face evidence that, having regard to the prevailing rates or other circumstances the price alleged to have been paid was unreasonably high and if this is shown by the pre-emptor the initial burden would then be shifted on to the vendee and he will have to prove to the satisfaction of the Court the actual price which was settled and paid.
4. Their Lordships further held that
if on a consideration of the evidence of both the parties, the Court can come to a definiti conclusion as to the actual amount of the sail consideration, it is its duty to decree the claim for that amount. But if the Court is unable to come to a definite conclusion but is on reasonable ground satisfied that the ostensible price was no the actual price, then the only course open to the Court is to proceed to ascertain the market value of the property and decree the claim on the payment of such amount.
5. From the above, it is quite clear that the question of the market value of the property arises only where the Court is not able to make up its mind upon the question of the actual price of the property. The question of the market value of the property does not arise where the Court is in a position to come to a definite conclusion upon the question of what the actual price of the property is. That this is the true meaning of Section 17, Agra Pre-emption Act, was reiterated by Sulaiman J. (as he then was) in the case in Misri Lal v. Devi Charan : AIR1932All561 where after referring to Dhanukdhari Singh v. Suresh Singh : AIR1930All363 he observed that it was only when the Court was unable to make up its mind, and could not come to a definite conclusion as to the exact sale price that it should proceed to ascertain the market value. With respect, I follow the view taken in Dhanukdhari Singh v. Suresh Singh : AIR1930All363 and having regard to that view, it is obvious that the method of approach of the learned Judge to the solution of the question was not correct. As the learned Judge has not arrived at a finding on the question as to whether item 3 of the sale consideration as mentioned above, was genuine or fictitious and whether the sum of Rs. 303 should be considered as payment by the vendee to the vendor it became necessary for me to examine the record and arrive at my own finding upon this question. On an examination of the record, I find that the view taken by the learned Munsif upon this question was quite correct and I hold that the item of Rs. 303 was fictitious. It is not necessary for me to set out in detail the considerations upon which I have reached this conclusion. Suffice it to say that the promissory note was not filed and that it was not proved by defendant 1 and, upon the evidence on the record, I am not satisfied that the alleged loan of Rs. 300 which was said to have been borrowed under the promissory note, dated 20th June 1941 was a transaction which ever in fact took place. In this view of the matter, I allow the appeal and set aside the decree passed by the learned District Judge and restore that of the Court of the learned Munsif, Hawali. The appellant will get his costs of this appeal and of the appeal before the learned District Judge. Leave for Letters Patent appeal is prayed for and is refused.