GAJADHAR SINGH Vs. RADHA PRASAD SINGH

JUDGEMENT

(1.) This is an appeal by the defendant 1 from the decision of the learned Subordinate Judge of Begusarai, dated the 28th of February, 1947, decreeing the plaintiff's suit for pre-emption in respect of certain properties, which along with others, were the subject-matter of a sale-deed dated the 18th November, 1943, executed by Mt. Jugeshwari Kuar alias Jageshwari Kuar, widow of Ganga Pd. Singh and others.

(2.) The plaintiff-respondent alleged that on the 2nd of January, 1944, in the forenoon he learnt from Jadunath Singh (P. W. 8) that the defendants second and third parties had sold the properties entered in Schedule B of the plaint along with other properties to the first defendant; that the plaintiff at once completed the formality of 'Talab-e-mowasbat' in the presence of jagdambi Prasad Singh (P. W, 2) Narain Pd. Singh and several other persons; that thereafter he, along with the said Jagadambi and others, went to mauza Majhaul. Tauzi No. 1130 and completed the formality of Talab-e-Ishteshhad; that from there the plaintiff with his witnesses Jadunath Singh (P. W. 8) and Bindeshwari Singh (P. W. 8) went to the residence of the first defendant at Matihani on the 3rd of January, 1944 and again performed the ceremony of "Talab-e-Ishtishhad' and the same day along with those witnesses, the plaintiff went to the place of the defendants second and third parties and there also performed the ceremony of 'Talab-e-Ishtishhad'; that the plaintiff believed that the first defendant had purchased the properties comprised in the sale deed, aforesaid, for a consideration of Rs. 6,000/- only, but had dishonestly and fraudulently got the amount of Rs. 25,000/- mentioned as the consideration money and, after making a show of payment of Rs. 21,000/- before the Sub-Registrar in cash, took back Rs. 19,000 from the vendors, so that the sum of Rs. 6,000/- only was the real consideration that passed between the parties to the sale deed; that though the parties are Hindus, by the custom and usage of the Province, the plaintiff had a right of pre-emption in respect of some of the properties sold; that the properties comprised in the sale deed are set out in Schedule E of the plaint, out of which the right of pre-emption was claimed only in respect of those set out in Schedule B of the plaint, the price whereof the plaintiff assessed at Rs. 4200/-. The plaintiff, therefore, claimed a decree for pre-emption in respect of the disputed properties entered in Schedule B of the plaint.

(3.) The suit was contested by the first defendant only, and apart from the formal pleas in bar of the suit, he contended that the real purchasers of the property by virtue of the sale deed impugned in this case were Babu Lachhmi Prasad Singh and the other members of his family and that the defendant was a mere name-lender; that the plaintiff and other members of his family had full know ledge and information as regards the negotiation, agreement of sale and execution of the sale deed in favour of Babu Lachhmi Prasad Singh and others in the name of this defendant; that the plaintiff's allegations about his performing the formalities of 'Tlab-e-mowasbat' and 'Talab-e-Ish-tishhad' were entirely wrong and unfounded; that the witnesses named in the plaint as the persons in whose presence those ceremonies were performed were the creatures, relatives and friends of the plaintiff; that Rs. 4,000/- had been paid to the defendant second party on the 15th of November, 1943, when the deed of agreement was executed, and the remaining consideration money amounting to Rs. 21,000/- had been paid in cash before the Sub-Registrar at the time of registration; that the plaintiff's allegation that the consideration fixed for the sale was only Rs. 6,000/- was entirely without foundation; that when the negotiation for the sale of the properties owned and possessed by the defendant second party started, the plaintiff was also one of the intending purchasers, but he was out-bid by the actual purchasers, aforesaid, with the result that the deed of agreement and eventually the sale-deed were executed in favour of this defendant as benamidar for the said Babu Lachhmi Prasad Singh and others; that the sale deed covered the entire eight annas five 'gandas' and odd share in Tauzi No. 1130 of Mauza Majhaul and not only four annas five 'gandas', as wrongly alleged in the plaint; that as a matter of fact the plaintiff and tne members of his family were all along aware of the negotiation for sale and of the ultimate execution of the sale deed in question; that it was discovered that after the registration of the sale deed a forgery had been perpetrated in respect of the extent of the share in Tauzi No. 1130, as a result of conspiracy between the plaintiff and the defendants second and third parties; that after the forgery aforesaid had been committed in the Registration Office, the plaintiff got a sale deed executed by the defendant second party an favour of his brother-in-law Singheshwar Singh. It was finally contended that the plaintiff had deliberately under-valued his plaint by falsely alleging that the properties in respect of which the right of pre-emption was sought to be exercised were valued at only Rs. 4,200/- and that as a matter of fact, the properties were worth about Rs. 25,000/-.