RAM SARUP SAHA Vs. KARAM ULLAH KHAN

JUDGEMENT

(1.) THE only question in this appeal is that of consideration. THE consideration according to the sale-deed was Rs. 399. Evidence was given in the Court below to show that the market-value put at the very highest would not amount to Rs. 200. So far as the finding of the lower Appellate Court is a finding of fact as to the consideration, it is binding upon us in second appeal.

(2.) IT is argued, however, on behalf of the appellant that as Rs. 399 was actually paid before the Sub-Registrar and inasmuch as there was no evidence that any of this sum was given back, the Court was bound to hold that that was the true consideration. Reliance is placed upon the case of (O Conor v. Ghulam Haidar 28 A. 617. : 3 A.L.J. 365 : A.W.N. (1906) 155. This ruling is, in our opinion, contrary to a series of rulings of this High Court, and was expressly dissented from in the case of Abdul Majid v. Amolak 29 A. 618 : 4 A.L.J. 531 : A.W.N. (1907) 202. In our opinion when 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 is the real consideration, and this notwithstanding that it is proved that the amount stated in the deed was paid before the Sub-Registrar. IT is, of course, open to the vendee to show that there were special circumstances why he was ready to give and did give the actual price mentioned in the deed. We dismiss the appeal with costs.