1. These three appeals are connected and arise out of two suits for pre-emption. The first was to preempt a sale deed and the second to preempt a deed of exchange which was taken during the pendency of the former suit. The defendant pleaded that by virtue of this deed of exchange they had become cosharers in the mahal and were entitled to resist the claim. The plaintiff on the other hand alleged that the deed of exchange was really a deed of sale. Both the Court below have treated this deed as one of sale on the ground that the land transferred by the vendee was the proprietary interest in certain rent-free grants which were yielding no income and that Rs. 65 was secretly paid by the vendee in consideration for the land which he acquired. The Courts below have not held that the transfer of the proprietary interest in the rent-free grant was a bogus and fictitious transaction the proprietary interest not passing. What they have thought is that because cash also was paid the transaction was one of sale. This view is obviously wrong. Under Section 118, T.P. Act, when two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only the transaction is called an exchange. It is therefore obvious that if part of the consideration given by the vendee was proprietary interest in land and part was cash consideration, the transaction was not one of sale but one of exchange. In these circumstances the Courts below were wrong in treating it as one of sale.
2. The result therefore is that both these appeals must be allowed and the decrees of the Courts below set aside and the plaintiff's suit dismissed in both the cases. But inasmuch as the deed of exchange was taken during the pendency of the first suit (No. 1082 of 1926) the plaintiff should be given his costs in the first Court which should be borne by the defendants. The defendants will have their costs in the lower appellate Court and in this Court in this case from the plaintiff who will bear his own costs. The defendants will also have their costs throughout in the other case (suit No. 775 of 1927) from the plaintiff who will bear his own costs throughout. Costs in this Court will include foes on the higher scale.