SUBA SINGH Vs. SADHU SINGH CHUHAR SINGH

JUDGEMENT

(1.) THE point for determination in this appeal is whether the lower appellate Court rightly declined to entertain an appeal against a decree made by the trial Court in a pre-emption suit in which an amendment of correction was later on ordered to be made, the appeal having been filed against the decree as originally framed and not from tke decree as amended or corrected.

(2.) IT is necessary to state the facts at some length. Mst. Jio widow of Asa Singh sold certain agricultural land measuring 57 kanals and 7 marlas for Rs. 10,000 to Suba Singh and three others. Sadhu Singh who claimed to be the real brother of Asa Singh filed a suit for the usual declaration that the sale was without consideration and necessity and was not binding on the plaintiff and other reversionera after the death of Mst. Jio. In the alternative he prayed that a decree be granted for possession by pre-emption on payment of Rs. 3,000 that being alleged to be the market value of the property. The suit was contested by the vendees and the following issues were framed on the pleadings of the parties : (1) Is the suit for declaration in view of Section 14 of the Hindu Succession Act by plaintiff competent ? (2) Has the plaintiff a better right of pre-emption than vendees ? (3) Was the sale consideration of Rupees 10,000/- actually paid or fixed in good faith? (4) What is the market value of the suit land? (5) Is the suit bad for non-joinder of Teja Singh? (6) Relief.

(3.) ON issue No. 1 it was held that the plain-tiff did not have a locus standi to ask for a declaration after coming into force of th" Hindu Succession Act. On issue No. 2, there was hardly much contest and it was held that the plaintiff had a better right of pre-emption. With regard to issue No. 3 it will be useful to reproduce the following portions of the judg ment of the trial Court: "13. This is the main issue and the sale consideration of Rs. 10,000/- is said to be paid as follows: (a) Rs. 4800/- for paying it over to previous mortgagees on the basis of their mortgage deeds dated 12-3-57 (Rs. 1800/-) and 19-12-51 Rs. 3000/- in favour of Teja Singh father of defendants Nos. 1 to 4. (b) Rs. 600/- for paying it over to Teja Singh on the basis of the pronote dated 2-1-58. (c) Rs. 600/- for paying over to Dharam Singh vide pronote dated 2-12-57. (d) Rs. 500/- for paying over to Shangara Singh vide pronote dated 20-6-56. (e) Rs. 2000/- paid as earnest money vide receipt dated 27-1-58. (f) Rs. 1000/- paid to the vendor vide receipt D. 11 dated July, 1958. (g) Rs. 500/- paid to vendor for registration expenses. Total: Rs. 10,000/ -. 14. There is not much dispute as regards items (a) and (f ). This amount has been actually proved to have been paid vide receipts and the statement of Jio. These items are upheld. " The trial Court held on items (b), (c), (d) and (e) that they had not been proved and therefore they were disallowed. As a Commissioner had been appointed for determining the market value the trial Court accepted his report and fixed the market value at Rupees 6451. 87 paisas. The concluding and the material portion of the judgment delivered on 11th February, 1960, by Shri S. C. Jain, Sub Judge 1st Class, who had tried the suit was as follows: "in view of my above findings I decree the plaintiff's suit against the defendants and he will deposit Rs. 6451. 87 NP. in this Court on or before 11-5-60 failing which his suit shall stand dismissed ipso facto with costs. "