Bapna, J. - (1.) THIS is a defendants* appeal in a suit for pre-emption.
(2.) THE respondent Tarachand sued the appellants vendees for possession of a certain plot of land sold to them by respondent No. 2 on 4th of August 1947. It was alleged that the real consideration for the sale was Rs. 600/-but it was wrongly mentioned at Rs. 1500/- in the sale-deed. THE right to pre-empt was not contested by the defendants but various other pleas were raised of which the only one relevant for purposes of this appeal was that the price of Rs. 1500/-mentioned in the deed was not fictitious. THE trial court held the price mentioned in the deed to be fictitious and decreed the suit on payment of Rs. 600/- and the same judgment was upheld on appeal. It is contended for the appellants that the mode of approach by the two lower courts in this case was erroneous in so far as they first tried to find what the market value of the property was and having come to the conclusion that it was Rs. 600/-, they proceeded to hold that the price was fictitious. It was urged that the burden of proof of the price being fictitious was on the plaintiff and that he had failed to discharge the onus placed upon him and further that according to the evidence on record, the market value of the plot was as mentioned in the sale-deed. It was conceded by learned counsel for the respondent-vendee that the mode of approach in this case by the two lower courts was erroneous but it was urged on his behalf that although the initial burden of proof was on the plaintiff, circumstances have come on the record which shifted the burden of proof of the correctness of the consideration on the defendants and it remained undischarged. It was urged that the finding as to the market value arrived at by the two courts was correct. A certain amount of confusion prevails as to the correct mode of approach in cases of this nature and it would be useful to point out that where a plaintiff-preemptor comes to court with an allegation that the price mentioned in the deed of sale was fictitious, the burden of proving that it is so lies on the plaintiff. Since the transaction of sale often takes place behind the back of the pre-emptor, it is only in a few cases that direct evidence can be led to prove that the price mentioned in the deed of sale was fictitious and in a large number of cases the evidence must naturally be circumstantial. If the pre-emptor is able to bring on record certain facts which may show that the consideration did not pass as recited in the deed of sale or that it could not possibly be the real consideration, the onus then shifts to the vendee to prove that the consideration mentioned in the deed did pass or what was the actual amount of consideration. If from that evidence the court is unable to satisfy itself as to the actual amount of consideration, then the court has to proceed to ascertain the market value and give the plaintiff a decree conditional on the payment of that amount. If the pre-emptor is unable to bring facts on record which may put the vendee to prove the price paid by him, the mere fact, that the consideration mentioned in the sale-deed is higher than the market value, cannot justify a court in reducing the consideration. The learned counsel for the respondent vendee relied upon a passage in 9 Allahabad 225 where it was observed that where the market value of the property was so much less than the alleged price as lead any reasonable man to come to the conclusion that the alleged contract price was not the real price, it would be prima facie evidence for presuming that the price mentioned in the sale-deed was not the real price. In the case referred to, the market price mentioned in the deed was one-fifth of the price mentioned in the deed but even then their Lordships observed that that circumstance alone was not sufficient to prove that the price was fictitious but that it was a circumstance which could induce the court to call upon the defendant-purchaser to give some reason why he was willing and prepared to sacrifice his money in order to buy his property at a price apparently so extravagant and the defendant might then explain that there was some special reason why he was willing to give so large a price as for instance from the propinquity of other property of his or the desire of be coming a co-sharer in the property or the doubtfulness of the staoility of the vendor who was his debtor and so on. It was observed that there may be many reasons which may be given to satisfy a Judge that the transaction although prima facie a questionable and doubtful one was a geuine transaction. It is, however, only in cases where the price mentioned in the deed would be grossly in excess of the market value that the point would require an explanation. In the present case, according to the findings of the two courts, the market value of the plot was Rs. 600/- while the price mentioned in the deed is far in excess of the market value but this by itself was not sufficient to prove that the price was fictitious. It certainly could induce the court to call upon the vendee to explain why he paid such high price. No direct question seems to have been asked the defendant but one appears in his evidence that this plot is nearer to the Railway Station and was situated in the Abadi while other plots were far from Railway Station and people had not started construction in the neighbourhood. This was the explanation which the learned counsel for the appellants gave during the course of the arguments. The learned counsel for the vendees, however, pointed out certain other facts on the record which have been brought out by the evidence led on behalf of the defendant himself which throw considerable doubt on the fact that the consideration mentioned in the deed did actually pass. The sale-deed is dated 4th of August, 1947. According to Kalu Ram, defendant-vendee, Rs. 1500/- which was the amount of consideration was paid to the vendor on the 4th of August, 1947 through Kistoor Chand, that is, the vendee paid the amount to Kistoor Chand and Kistoor Chand paid it to the vendor. It has not been explained why the vendee did not pay to the vendor direct and in case the money was paid through Kistoor Chand, why no receipt from Kistoor Chand or vendor was obtained by the plaintiff. According to Kistoor Chand, the money was paid by him to the vendor but the document was not written before him as he went away to a village before the sale-deed was written. Since the money was, therefore, paid at the time of execution of the sale-deed, the omission to obtain a receipt throws considerable doubt on the fact that the money alleged to have been paid was really so done. Then, Kistoor Chand is neither an attesting witness nor has he appeared before the Registrar for identification of the parties although, according to the plaintiff, he was the person who had negotiated the transaction for him and was the person through whom the money was paid to the vendor. According to Kaluram-vendee, there was no person present except Kistoor Chand when the money was paid to the vendor. The entire case, therefore, depends upon the credibility to be attached to the statement of Kistoor Chand. His conduct is far from satisfactory. He does not even stay in the village to see that the vendor executes the sale-deed and admits its registration but prefers to pay the money before the execution of the sale-deed and does not obtain a receipt. Hiralal vendor admits that his relations with Tarachand-plaintiff were not happy and that he did not ask him if he was prepared to purchase the land before the sale in dispute. It is conceded that Tarachand had a right of pre-emption and according to Kalu Ram he had especially asked Hiralal to enquire of Tarachand whether he wished to assert his right of preemption. The plaintiff's evidence in this respect is hearsay but the facts brought out by the statements of Kaluram Hiralal and Kistoor Chand are sufficient for a finding that the money mentioned in the deed had not been paid. The next point for consideration is whether the vendee had been able to prove what amount had been actually paid if the consideration mentioned in the deed was held to be fictitious. The evidence led by the vendee in this case is that the full amount of consideration was paid but this evidence has been held to be un-reliable and the vendee must, therefore, be held to have failed to prove what consideration he actually paid to the vendor. The case, therefore comes within that class of cases where the court has to find the market value. The trial court has come to the conclusion that the market value was Rs. 600/ -. In arriving at this conclusion, the court has discussed the entire evidence produced before it. The same finding was confirmed by the appellate court. The learned counsel for the appellant took me through the entire-evidence on the ground that it had been mis-read but after going through the evidence, I am of opinion that the finding arrived at is correct. There was no plot of land in the immediate vicinity of the one in dispute sold at about the same period, as the sale in dispute and the two courts have rightly appraised the value at Rs. 600/- after taking into consideration the various factors pertaining to the other sales that have been brought on record. This appeal, therefore, fails and is dismissed with costs. . ;