SADHO SARAN PANDE Vs. BENI MADHO OJHA

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a pre-emption suit. In order to appreciate the reasons that have led me to differ from the lower Appellate Court it is necessary to state the facts in some detail. On 14 September 1934, defendants third party executed a sale deed of certain zamindari share in favour of Beni Madho, defendant first party. The ostensible consideration entered in the sale deed was Rs. 399-15-0. Further, on the same date defendants third party executed a perpetual lease with respect to certain sir plots appertaining to the share sold in favour of defendants second party, who are the sons of Beni Madho, defendant first party. Two rival suits for preemption were filed. One of these suits was numbered as suit No. 385 of 1935 and the other suit that was filed by Sadho Saran who is the appellant in the present appeal was numbered as suit No. 399 of 1935. In his plaint Sadho Saran, plaintiff-appellant, alleged that defendants first and second party were members of a joint Hindu family and that defendant first party, viz., Beni Madho, was the karta of that family. This allegation was admitted by the contesting defendants. It was further alleged in the plaint that the sale and the lease were parts of one and the same transaction and that, because of the "fear of pre-emption," the lease was fictitiously executed and no separate consideration was paid for the same. The accuracy of the sale consideration entered in the sale deed was also disputed. The relief prayed for by Sadho Saran was that a decree for pre-emption be passed in his favour conditional on the payment of Rs. 300 coupled with a declaration that the lease dated 14th September 1934 was a part of the transaction of the pre-empted sale.

(2.) Defendants first and second party, while admitting the right of pre-emption of the plaintiffs of both the suits with respect to the sale, contested the suit on the allegation that the lease represented a transaction quite distinct from the transaction of sale and was not fictitious, and that the consideration entered in the sale deed was the true consideration. The plaintiffs of suit No. 385 maintained that they had a preferential right of pre-emption as against Sadho Saran. The trial Court, however, held that the plaintiffs of both the suits had equal right of preemption, and there is no controversy about this point in the present appeal. The trial Court accepted the consideration entered in the sale deed as correct. On the question whether the lease was a part of the transaction of sale and was executed with a view to defeat the right of pre-emption the trial Court summarized its conclusion as follows: The patta might be quite genuine or it might be spurious. In the absence of any evidence on the point I cannot hold it to be fictitious and part of the sale transaction.

(3.) In view of its finding the trial Court decreed both the suits for pre-emption of the property sold. It passed a decree with respect to half of the property in favour of the plaintiffs of suit No. 385 and similarly it granted a decree with respect to the remaining half of the property to Sadho Saran, plaintiff appellant. It however dismissed Sadho Saran's claim in respect of the declaration that the lease formed part of the transaction of sale. To the plaintiffs of both the suits it granted 15 days time to pay half of the price entered in the sale deed, viz. a sum of Rs. 200, and, in the event of default by the plaintiffs of either suit, the plaintiffs of the other suit were given an additional time of ten days to deposit the amount and thus get a decree for the whole of the property sold. The plaintiffs of suit No. 385 did not appeal against the decree of the trial Court and, so far as they were concerned that decree became final. Sadho Saran however appealed in the lower Appellate Court. By his appeal he assailed the finding of the trial Court with respect to the lease and further urged that the time allowed by that Court for payment of the pre-emption money was too short. The learned Judge of the lower Appellate Court did not record any finding on the question as to whether or not the lease and the sale were parts of one and the same transaction. He rejected the contention of Sadho Saran as regards the inadequacy of time allowed for depositing the pre- emption money and dismissed hie appeal. Sadho Saran had filed his appeal in the lower Appellate Court after the expiry of 15 days allowed by the trial Court for the deposit of the purchase money, and the learned Judge of the lower Appellate Court considered that this fact by itself did warrant the dismissal of Sadho Saran's appeal. In support of this conclusion, the learned Judge relied on a Division Bench ruling of this Court reported in Umrao Singh V/s. Kanwal . The learned Judge quoted a portion of the head note in his judgment and concluded therefrom that, if on the date of the hearing of an appeal in a pre-emption suit, it is found that the plaintiff has not, in compliance with the decree of the trial Court, deposited the pre- emption money within the time allowed by that Court, he forfeits his right of pre- emption. In arriving at this conclusion, the learned Judge totally overlooked para. 1 of the head note which gives a distinguishing feature to that case. Para. 1 runs thus: The mere fact that an appeal is filed to the lower Appellate Court by the defendant does not extend the period granted by the Court of first instance for payment of the pre-emption money. It is true that a decree when under appeal is not final, but this does not mean that a pre- emptor is entitled to say that he can pay the money after the Appellate Court has passed an order in the appeal.