SUNDER LAL Vs. MOHAN LAL

JUDGEMENT

(1.) THIS is an appeal by the Plaintiff in the suit, from the decision of the Additional District Judge, Ujjain, whereby he substantially affirmed the judgment and decree of the City Sub -Judge, Ujjain dismissing the Appellant's suit for pre -emption.

(2.) IT was alleged by the Plaintiff that the Respondent Javar Chand who was the owner of a house No. 2689 situated in Mohalla Budhwaria, Ujjain, mortgaged the house on 27 -10 -32 with one Vithal Das for Rs. 800/ -; that on 17 -7 -43 an account of the amount due on this mortgage was taken and Rs. 1394/ - were found due from Javar Chand; that as both Vithal Das and Javar Chand were in need of money, Vithal Das sold on 17 -7 -43 his rights in the mortgage to Mohan Lal for Rs. 900/ - and on the same date Javar Chand executed a (SIC) deed in favour of Mohan Lal purporting to borrow Rs. 400/ - from Mohan Lal and to mortgage the house in suit with Mohan Lal for this sum of Rs. 400/ - and Rs. 1394/ - said to be amount due on the mortgage purchased by Mohan Lal from Vithal Das. The Plaintiff claimed that the transaction evidenced by the deed of 17 -7 -1943 executed by Javar Chand in favour of Mohan Lal was one of sale of the property to Mohan Lal for Rs. 1300/ - and that he was entitled to pre -empt the property for that amount. In his written statement, Javar Chand admitted the Plaintiff's claim. Mohan Lal contested the suit mainly on the ground that the deed of 17 -7 -43 was on the face of it and in reality a deed of mortgage and that with regard to this mortgage transaction, no premption suit could lie.

(3.) MR . Hirway for the Respondent Mohan Lal did not dispute that it was open to the pre -emptor to show from circumstantial and oral evidence that the transaction was one of a sale and not a mortgage. He, however, contended that the Courts below did consider the evidence led by the Plaintiff as to the nature of the transaction and then came to the conclusion which was justified on that evidence, that the Appellant had failed to prove (SIC) the transaction was in reality a sale. (SIC) the arguments of the learned Counsel for the parties, I have come to the conclusion that this appeal must be dismissed. That a preemptor is not precluded from showing that the deed on which he bases his right to pre -empt and which on the face of it purports to be a mortgage is in reality a sale, is clear enough from the provisions of Section 99, Evidence Act, and of Section 3 of the Gwalior State Pre -emption Act of Samvat 1992. But, in my opinion, this rule of law only permits a pre -emptor to give evidence of any fact to prove a contemporaneous agreement between the parties to the document to the effect that the parties agreed that though the document showed one thing actually, the real transaction between them was to be quite different. I do not think, it enables a pre -emptor to suggest without proving a contemporaneous oral agreement that though a deed is 'ex facie' a mortgage and though, according to its plain terms, it must be construed as such between the parties, nevertheless it should be treated as the sale because the intention of the parties was to defeat the right of pre -emption. Learned Counsel for the Appellant relied on - 'Lalji Misir v. Jaggu Tewari', 33 All 104 (A); - 'Baijnath Singh v. Hajee Vally Mahomed' : AIR 1925 PC 75 (B); and - 'Usan v. Mohammad Shaft Khan' : AIR 1927 All 204 (C) and said that a pre -emptor is entitled to ask the Court to treat a deed of mortgage as a deed of sale, if it was executed for the purpose of avoiding the exercise of a right of preemption and had the same result as a sale. It seems to me that the none of the cases relied upon by the learned Counsel for the Appellant lays down any such proposition.