1. The sole question to be decided in this appeal brought by the defendant against an appellate Judgment and decree of Mr. Sheo Parshad, Senior Subordinate Judge, Karnal, dated the 20th of June, 1949 is whether the transaction which is sought to be pre-empted is a sale or merely a gift.
2. The Courts below have differed on this point, the trial Court holding that it was a gift and the appellate Court holding that it was a sale. The defendant was a servant of the American Mission and had served them for eighteen years. On the 29th May 1946 the Mission entered into several transactions by which large portions of land were alienated to different persons by documents, the apparent tenor of which was a sale. In this manner the Mission has sold away the whole of its land in village Santokh Majre in tehsil Kaithal of Karnal district.
3. The land, which has been alienated in favour of Bakhshi Ram defendant by a deed dated 29th May, 1946, is 40 Bighas and 4 Biswas which has taken the shape of a sale deed for Rs. 190/-. The deed recites that the money had already been paid and at the time of registration no money passed from the alleged vendee to the alleged vendors. There were eighteen other similar transactions which also were pre-empted but quite a large number of them did not proceed any further because of compromises which were arrived at between the parties.
4. in the present case the plaintiffs brought a suit for pre-emption on the 28th May, 1947. The defence was that it was a gift. The learned trial Judge held it to be a gift and he relied for this on the following circumstances: (1) The price per 'bigha' in the village is about Rs. 200/- and the ostensible consideration for the alleged sale is only Rs. 190/- which works out to about less than Rs. 5/- per 'bigha'. (2) No money was paid before the Registrar. This transaction is in favour of an old servant who had served for eighteen years. He is a Christian, and (3) Eighteen other transactions were entered into in a similar way, the consideration being at the same rate and all these were in favour of Christians. There is the evidence of the defendant that no money was received from him as price but he had only to pay some subscription.
5. The appellate Court Mr. Sheo Parshad has taken a contrary view because (1) the parties could have described it as a gift if it was so and that it was described as a sale in the sale deed, at the time of the report to the 'patwari' and at the time of the mutation. The learned Judge has not taken the other facts into consideration and in my opinion his finding is vitiated on that ground.
6. In -- 'Sajan Singh v. Phuman Singh', AIR 1954 Pun] 115 (A) I had held that a duty is cast upon the courts to determine the nature of the transaction when such a question is raised by the pleadings of the parties and the Courts should not be satisfied merely by the apparent tenor of a document. I relied there on -- 'Bahawal v. Amir', AIR 1939 Lah 343 (B).
7. Mr. Shamair Chand in support of his casethat the document is a sale and not a gift hasdrawn my attention to a judgment -- 'KishenSingh v. Jai Kishen Das', 2 Pun Re 1903 (C)where one of the points considered by the Courtin determining whether the transaction in dispute was a sale or not was that part of the consideration consisted of a favour and past services,but the question here Is not that at all. The vendors here are a Christian Mission. They wantedto help Christians who had been serving them.Property worth Rs. 8,000/- has been, according tothe documents on which reliance is placed by Mr.Sham air Chan, sold for Rs. 190/-. I cannot believe that anybody in his sense, if he wanted tomake a sale, would have sold for such an insignificant sum property, which was worth very muchmore. The finding which the learned trial Courtgave in this case was in my opinion the correctone and the learned appellate Court seems tohave come to an erroneous conclusion and I wouldtherefore allow this appeal, set aside the decree ofthe first appellate Court and restore that of thetrial Court. In the circumstances of this caseparties will bear their own costs throughout.