1. This is a defendants' appeal arising out of a suit for pre-emtion. The only point raised relates to the question of consideration.
2. In spite of the fact that the true interpretation of Section 17, Agra Pre-emption Act, was explained by Lindsay, J., in Abdul Ghafoor v. Kamaluddin : AIR1927All441 numerous second appeals are being filed only on the question of consideration, challenging the findings of the lower appellate Courts on the sole ground that the question has not been approached in the proper way. It cannot be denied that, in some cases, the language used by the Courts did indicate that the procedure laid down in Section 17 was not followed strictly. We, therefore, think it necessary to restate various stages in the enquiry as to the sale consideration which has been laid down by the legislature.
3. In the first place, it is the duty of the Court to assume in favour of the vendee that the price mentioned in the sale deed and acknowledged by the vendor to have been paid to him was the correct price. It is obvious that there is an initial presumption in favour of the correctness of such a recital or acknowledgment.
4. But it is open to the plaintiff either to show circumstances antecedent to or surrounding the sale transaction or lead some prima facie evidence that, having regard to the prevailing rates or other circumstances, the price alleged to have been paid was unreasonably high, which might show that the ostensible price entered in the sale deed was probably inflated and not the actual price settled. If this is shown by the pre-emptor, the initial burden, which lay on him, would then be shifted on to the vendee.
5. After the burden of evidence has been thus shifted, the onus lies on the vendee to prove to the satisfaction of the Court the actual price which was settled and paid. The vendee may give conclusive evidence to prove that the whole of the price entered in the deed was actually paid, or his evidence may be sufficient to prove the passing of consideration to a smaller extent. If, on a consideration of the evidence of both the parties, the Court can come to a definite conclusion as to the actual amount of the sale consideration, whether that amount be more than what the plaintiff admits or less than the ostensible price entered in the deed, it is the duty of the Court to decree the claim for the amount which it finds was in fact the actual consideration.
6. But if, after the consideration of all the evidence, the Court is unable to make up its mind and come to a definite conclusion as to the exact sale price, but is at the same time on reasonable grounds satisfied that the ostensible price was not 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.
7. In the present case the plaintiff alleged in the plaint that the price entered in the deed was abnormally high and inflated, and that a portion of the consideration was actually returned by the vendor to the vendees. He asserted that, in spite of Rs. 300 which was mentioned in the sale deed the property was really sold for Rs. 75 only. The defendants pleaded that the sum of Rs. 300 was the real consideration, and the whole of it was paid before the Sub-Registrar. The plaintiff led oral evidence to show that a portion of the amount paid before the Sub-Registrar was returned by the vendor to the vendee after the registration, and he also led evidence to show that Rs. 300 would be an unreasonably high price for the property.
8. The learned Munsif came to a definite finding:
that Rs. 300 was paid by the defendant vendees to the defendant vendor and nothing out of it was paid back to the vendees and as such the real sale consideration is Rs. 300.
9. In view of this categorical finding, he was perfectly justified in not going into the market value of the property.
10. The lower appellate Court, presumably in view of the evidence led by the plaintiff, assumed that the burden had shifted on to the defendants to prove the actual consideration. It agreed with the first Court that the return of any portion of the money after the registration of the sale deed was not proved; but it did not suggest any reasons or record any finding that, having regard to all the circumstances of the case, he was satisfied that Rs. 300, although shown before the Sub-Registrar, was not the real price. Without any such expression of opinion, it at once proceeded to enquire into the market value. We think that this procedure was erroneous.
11. Although a pre-emptor may fail to produce direct oral or documentary evidence to establish conclusively that any part of the sale consideration, paid before the Sub-Registrar, was subsequently returned, yet it is open to him to rely on circumstantial evidence; and if he can convince the Court on the basis of such evidence that the consideration shown to have been paid was not, infact, the true consideration, the Court may proceed to enquire into the market value. The fact that the whole consideration was paid before the Sub-Registrar and no part of it is positively proved to have been returned is a strong circumstance in favour of the vendee and, unless the Court does in spite of that circumstance believe that the whole of it did not represent the true and real consideration, it would not be open to the Court to decree the claim on the payment of the market value.
12. The finding as to the market value is undoubtedly a finding of fact; but before we can decree the suit on its basis we must have a clear finding by the lower appellate Court on the following issue:
Whether, although no part of the amount paid before the Sub-Registrar is proved to have been returned, the amount so paid did not, having regard to all the circumstances of this case, represent the actual price settled?
13. No further evidence shall be admitted, and the finding should be returned within two months. The usual ten days will be allowed to the parties to file objections to the finding returned.