- (1.) THIS is the plaintiffs' appeal and arises out of a pre-emption suit. The only point which requires consideration is whether the sale-price given in the sale-deed is fictitious and, if so how much in fact was paid as sale-price by the vendee, defendant No. 1, to the vendor.
(2.) THE sale-deed ostensibly stands in the sum Rs. 2422/ -. THE plaintiffs' cases is that in fact a sum of Rs 1599/- was paid, and Rs. 900/- have been fictitiously added to the actual amount. The plaintiff, in order to show that the price mentioned in the sale-deed was not the actual price, examined Nathulal P. W. 5, Bal P. W. 6, Govind Narain P. W. 7 and Saidhu Ram P. W. 9. He also got not an estimate prepared by one Ram Prashad showing that the estimated price of the property in dispute was Rs 1615/ -. This Ram Prashad was produced and he proved the estimate prepared by him. Learned Civil Judge, Jaipur City, who tried the case, was not very favourably impressed with the evidence of Nathulal, Bal, Govind Narain and Saidhuram, but believing that the estimate made by Ram Prashad was correct, he held that the ostensible price was not the actual price. He went into the evidence of both the parties and found that the only some which is proved to have been paid out of the sale consideration was the sum of Rs. 1643/4/- paid to Mst. Manphuli on account of a mortgage-deed, Ex. A/3 dated 5th February, 1941 and sum of Rs. 203/- paid to Nanadgram on account of a mortgage deed Ex. A/2 dated 2nd September, 1941. Learned Civil Judge was not satisfied that any thing beyond these two sums was paid out of the sale consideration to the vendor, and consequently he decreed the plaintiffs' suit for pre-emption on payment of Rs. 1863/4/-within two month's time and ordered that if the amount be not paid as ordered, the suit shall stand dismissed. Both the parties went in appeal and the only ground on which the decree of the first court was challenged was that of sale consideration. The plaintiff said that even the sum of Rs. 1863/4/ -. was not payable and that the only sum on payment of which the decree for pre-emption ought to have been given was the sum of Rs. 1599/- as mentioned in the plaint. The defendant vendee in his appeal raised the question that the entire sum of Rs. 2499/- besides the costs of sale-deed were payable by the plaintiff. Learned District Judge, who heard the appeal, held that the plaintiffs' evidence was worthless and it did not prima facie prove that the ostensible price was not the real price. He accepted the evidence of the defendant and held that the entire sum of Rs. 2499/- was paid by the vendee. He consequently allowed the appeal and modified the decree of the first court in that the amount on which decree for preemption was given was raised to Rs. 2536/-including Rs. 36/- on account of the costs of sale-deed. The plaintiff was ordered to pay the costs of both the courts to the defendant vendee. I have heard Sri G. N. Sharma on behalf of the plaintiff-appellant and Sri B. D. Kanoongo on behalf of the vendee-respondent. This appeal was filed when the Jaipur Civil Procedure Code was in force and under sec. 100 of the said Code, a second appeal lay on questions of facts if the finding of the two lower courts is in conflict. I have, therefore, been taken through the entire evidence by the learned counsel for both the parties. It was argued by Mr. G. N. Sharma on behalf of the appellant that ordinarily sale-deeds which give rise to pre-emption are not executed in the presence of the pre-emptors. It is, therefore, difficult for the pre-emptors to prove by direct evidence as to what actually the sale price was. Very slight evidence is, therefore, sufficient for the pre-emptor to prove that the ostensible price was not the actual price and this could be proved either by the admission of the vendor or by evidence regarding the market price of the disputed property. He relied upon the ruling of the Allahabad High Court in the case of Bhagwan Singh vs. Mahabir Singh (1 ). In that case it was held by Division Bench that in a suit to enforce the right of pre-emption, in which the plaintiff impugns the correctness of the price stated in the instrument of the sale, although burden of proof prima facie is on him to show that the property has in fact been sold below the stated price, yet very slight evidence is ordinarily sufficient to establish his case and when such case is established, it rests upon the defendants, the vendor and vendee, to prove by cogent evidence that the stated price is the correct one. It does not appear from the report as to what was the evidence which was produced by the plaintiff and whether that evidence was sufficient prima facie to prove that the ostensible price was not the real price. It cannot, however, be denied that although slight evidence may suffice, it must be legal evidence and not an evidence which cannot be accepted in accordance with law. Then the next ruling relied upon is again of the Allahabad High Court, in the case of Sheoparkash Dube vs. Dhanraj Dube (2 ). In that case too the same principle was laid down as in the case referred to above and as the price stated in the sale-deed was nearly five times that the market-value of the property sold, and the purchaser gave no explanation showing why he was willing to buy the property at a price apparently so extravagant, it was held that there was sufficient evidence upon which to find that the price alleged in the contract was fictitious. Then there is again another case of the Allahabad High Court and that is Ram-Sarup Sahu vs. Karam Ullah Khan (3 ). In that case the same principle was accepted and it was held that whether it is alleged that the sale price is fictitious and put into the deed for the purpose of defeating pre emption it is open to the pre-emptor to give evidence to show that the market price is far below that stated in the sale-deed. If he gives such evidence to the satisfaction of the Court, the latter is quite justified in arriving at its own conclusion as to what was the real consideration, and this notwithstanding that it is proved that the amount stated indeed was paid before the Sub-Registrar. Learned counsel for the appellant next relied upon the case of Dhanukdhari Singh vs. Sureshsingh and Abelkh Tewari (4 ). That was a case under the Agra Pre-emption Act and turned upon the interpretation of sec. 17. It was held that there is an initial presumption in favour of the correctness of the price mentioned in the sale-deed. But 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 was not the actual price. If this is shown by the pre-emptor, the initial burden, which lay on him would then be shifted on to the vendee and it would be for him to prove the actual price which was settled and paid. In that case the entire sale price was paid in case before the Sub-Registrar and it was alleged by the plaintiff that the entire amount excepting Rs. 75/- was returned to the vendee. The first court held that it was not proved that any sum out of Rs. 300/- was paid back to the first vendee and decreed that suit on payment of the full amount of Rs. 300/ -. The first appellate court too did not accept the plaintiffs' evidence that any sum out of Rs. 300/- was returned, still it proceeded to enquire into the market value. It was held that the first court ought not to have proceeded to determine the market value unless, in spite of the circumstances that the whole amount was paid before the Sub-Registrar, it had good reasons to find that the whole of it did not represent the true and real consideration. The decree of the first appellate court was set aside and the case was sent back for decision in the light of the observations made by the High Court, The learned counsel for the appellant has further relied upon the decision of the Oudh Chief Court in the case of Asaf-ud-daula Khan vs. Abdul Ghaffer (5 ). In that case the learned Judges were concerned with the interpretation of Sec. 13 of the Oudh Laws Act which ran as follows - "if in a case of sale, the Court finds that the price was not fixed in good faith the Court shall fix such price as appears to it to be the fair market value of the property sold. " In order to show that it was not fixed in good faith, the plaintiff produced evidence to show that the market price was much less than the price given in the sale-deed. It was held that - "a Court in a pre-emption suit can decide on facts whether the property was sold for a fancy or a fictitious price, and can further determine its market value if it holds that the sale price was fixed in bad faith. But in the absence of actual evidence to show that the price was so fixed, no legal presumption to that effect can arise simply because it is found that the price paid by the vendee, as well as even that offered by the pre-emptor are, in view of the recorded income of the property such as no reasonable man actuated by business principles would offer. " In that case the ostensible price was Rs. 30000/- out of which a sum of Rs. 14,182/6/4 were paid before the Sub-Registrar. The plaintiff produced evidence to show that the income of the property was only about Rs. 450/- a year. It was held that this alone did not show that the price was not fixed in good faith. Taking all these authorities into consideration, I am of opinion that although very strong evidence to prove the actual price is not required from the plaintiff yet he has to produce some legal evidence which might satisfy the Court that the ostensible price is not the actual price. The evidence produced in this case is that of Nathulal P. W. 5, Bal P. W. 6, Govindnarain P. W. 8, and Saidhuram P. W. 9. Saidhuram deposed that he was a broker in the sale in question and the property was agreed to be sold for a sum of Rs. 1600/ -. He said that the vendor was only about thirty or thirty five years' old. It has been proved that the vendor was about sixty five years old at the time of the sale. The evidence of this witness show that he did not really take any part in the transaction of the sale otherwise he would not have given such an under estimate of the age of the vendor. One may make some difference in age but it is difficult to say that a broker who is expected to be shrewd would give the age of a man who is sixty five years old as thirty or thirty five. I agree with both the lower courts that the evidence of Saidhuram could not be relied upon. So far as the evidence of Nathulal, Bal and Govindnarain is concerned, I agree with the learned District Judge that their evidence is improbable. It is difficult to believe that in the presence of these persons the vendor would say that he had sold the property for Rs. 1600/-whereas in the sale-deed he has mentioned the sale consideration as Rs. 2499/ -. Even the first court was not favourably impressed by the evidence of these witnesses and it is only because it was influenced by the estimate prepared by Ram Prashad that it came to the finding that the ostensible price was not the actual or real price, The only evidence which found favour with the first court is the evidence of Ram Prashad who made an estimate of the property in suit. He has said in his estimate that the area of the property in suit was 406 Sq. ft. and that at the rate of Rs. 2/8/- per sq. ft. the cost of construction came to Rs. 1015/- to which Rs 500/- have been added on account of the price of the land and Rs. 100/- on account of the costs of wooden shutters. The total estimate, therefore, comes to Rs. 1615/ -. In his statement before the court he said that he had prepared his estimate on the basis of market and rental value. In his cross-examination he further said that the cost of construction at the relevant time was Rs. 6/-per sq. ft. As the area of the property has been given as 406 sq. ft , at the rate of Rs. 6/-per sq. ft. , the cost of construction comes to Rs. 2436/ -. Thus according to the cost of construction, it cannot be said that the ostensible price given in the sale deed is a high price. The plaintiff produced two rent deeds of the property in suit One of them gives the rent of a part of the property as Rs. 2/- per mensem and the other gives the rent of the other part as Rs. 1/12/- Both these rent-deeds are of the year 1939, i. e. , of the pre-war period It cannot be denied that after the war, the prices of the property rose in almost all the States of India. Rent Control Acts had to be passed in order to check the tendency to increase rents very exorbitantly Even in Jaipur a Rent Control Order was passed according to which the rent for the year 1939 was taken as basic rent and in cases of shops the courts could allow rent upto two times of the basic rent. Taking Rs. 2/- as the basic rent for one part of this property and Rs. 1/12/-for the other part, the annual rent of both the parts comes to be Rs. 45/- as the property in suit are two shops. According to law in force in Jaipur, it could be raised upto Rs. 95/-Taking the market value of the property from 25 times to 30 times of the rental value, the market, price of the property in suit would fall some-where between Rs. 2250/- and Rs. 2700/ -. Thus it cannot be said that' the price of Rs. 2599/- for the property in suit at the time of the sale-deed was an unreasonable or exorbitant price, It cannot, therefore, be said that on the basis of the estimate produced in this case, it could be found that the ostensible price was not the actual price. The plaintiff, therefore,could not produce any legal evidence which could prima facie prove that the ostensible price was the actual price and on this I agree with the learned District Judge It is, therefore, not necessary to go into the evidence produced by the defendant. How-ever, the defendant has been able to prove by cogent evidence that a sum of Rs. 1643/4/- was paid to one Mst, Manphool on account of a mortgage-deed Ex. A. /3 and Rs. 200/- to Nandgram on account of mortgage-deed Ex. A. /2. This amount has been held even by the first court to have been paid to the mortgagees and the vendors. Learned counsel for appellant did not seriously challenge the finding of the two lower courts in this respect. The only amount, which was not accepted by the first court, was the balance of Rs. 635/l2/ -. Out of this amount it was proved by the defendant-vendee that the sum of Rs. 352/- was spent over the suit brought by the vendor against Hazarilal. The particulars of this amount have also been given. It was also proved that a sum of Rs. 75/4/- was paid to the vendor on account of the expenses of stamp and Rs. 22/- were paid on behalf of the vendor to Kanhaiyalal plaintiff himself. All this account is given in a Bahi Ex. A. /l which is proved by Devi Sahai to have been signed by the vendor, Ram Gopal, alias Gutulal. There is no rebutting evidence except that in relation to Rs. 22/ -. The plaintiff says that he did not get that amount but I am not prepared to believe that for this small amount the defendant-vendee would forge the accounts and get them signed by the vendor. The only sum that remains is a sum of Rs 186/8/- but about that too the vendee showed that this amount was paid in cash to the vendor and entry about the receipt of this amount is also signed by the vendor. 1 am satisfied that the vendee has been able to prove that the entire sum of Rs. 2499/- was paid to the vendor. It may be noted that in the first instance the whole of the property belonging to the vendor shown in the sketch-map in blue and yellow colours was proposed to be sold to Mst. Haffeezan, mother of the defendant vendee. This property was going to be sold for a sum of Rs. 4999/ -. It is out of this sum of Rs. 4999/- that all the sums noted down in Ex. A/1 were paid by the defendant-vendee. Subsequently, however, it was not found possible or advisable to sell the entire property and only the property in suit, which is shown in yellow colour, in the sketch-map was sold to the vendee for a sum of Rs. 2499/- and the amount which has been paid by him in connection with the sale-deed proposed to be executed in his mother's favour was taken into the account of the sale consideration of the present sale-deed. Learned counsel for the appellant argued that the entire property was not worth Rs. 4999/- but muchless and all that it was proposed to be sold for to him was a sum of Rs. 4500/ -. He had declined to purchase it on such a high price. This argument falls to the ground in face of the statement of the plaintiff before the court that the whole of the property was of the value of Rs. 4600/ -. It cannot, therefore, be said that in offering the property to Mst. Haffeezan for a sum of Rs. 4999/- an unreasonable price was demanded by the vendors. Learned counsel for the appellant relied upon the statement of Devi Sahai who said that out of the sum of Rs. 4999/-of the sale-deed proposed in Mst. Haffeezan's favour, the amount of Rs. 1000/- was fictitious, and the price really settled was Rs. 4000/- only. I have read the statement of Devi Sahai and I am not at all impressed that this part of statement of Devi Sahai is correct. According to the plaintiff himself the value was atleast Rs. 4600/- and the vendor was offering the property to the plaintiff for a sum of Rs. 4500/ -. I do not understand why he should be so sympathetic to Mst. Haffeezan as to sell the property to her for Rs, 4000/ -. It appears that this witness was a necessary evil for the defendant-vendee who had to produce him because a sum of Rs. 1643/4/-was sought to be proved to have been paid to him on account of Mst. Manphooli. The plaintiff took full advantage of this situation and put the first question in cross-examination on this point and the witness who was a willing to in the hands of the plaintiff readily answered in his favour. Such manipulations cannot deceive the Courts of law. It has been held by this Court as well and the Lahore and Allahabad High Courts that under all the circumstances a party is not bound by the statement of a witness whom he is compelled to produce in order to prove certain facts; vide the cases of Nand Kishore vs. Brijbehari (6), Jalal Din vs. Nawab (7) and Baburam vs. Emperor (8 ). I agree with the learned District Judge so far as pre-emption decree has been passed on payment of Rs 2499/ -. I, however, do not agree with him that the plaintiff should be called upon to pay the costs of stamp etc, I also do not agree with the learned District Judge that the plaintiff should have been saddled with the costs of the defendant-vendee of the first court. The appeal is partly allowed. The plaintiff's suit for pre-emption stands decreed on payment of a sum of Rs. 2499/- to the defendant-vendee. If any part of the sum remains unpaid, it shall be paid to the defendant Vendee or deposited in Court within two months from today. In case the balance is deposited within the time fixed above the plaintiff's suit shall stand decreed. In case, however, the amount is not paid within the time mentioned above, the suit shall stand dismissed. Under the circumstances of the present case I deem it proper that the parties shall bear their own costs throughout. . ;