KUNWAR NIHAL SINGH Vs. CHANDA KUNWAR

JUDGEMENT

(1.) These two second appeals arise out of two suits for pre-emption brought in respect of two different transactions. The decision in one case is likely to affect the decision in the other. It appears that Musammat Kesar was the owner of a certain share in mahal khas of the village Anwalkhera. On the 26 May, 1919 she sold that share to Kunwar Nihal Singh, and a suit was brought by the present plaintiffs- respondents for the preemption of that property, alleging that the consideration specified in the deed of sale was bolstered up to defeat their pre-emptive right.

(2.) During the pendency of that suit; Kunwar Nihal Singh, the defendant-vendee obtained a deed of gift of plot No. 221 khasra measuring 1 bigha 4 biswas situated in mahal khas of the same village from Daryai Singh and Balwant Singh, the brothers of the deceased husband of Musammat Kesar. That deed of gift was set up by Kunwar Nihal Singh as a shield against the claim of the plaintiffs. The plaintiffs, however, sought to pre-empt that transaction by a subsequent suit filed by them against the alleged donee and his donors on the allegation that the transaction was really a sale clothed in the form of a gift to defeat their pre- emptive right.

(3.) The former suit was filed in the Court of the Subordinate Judge of Agra. The latter suit was filed in the Court of the Munsif of Agra. The decision of the Munsif of Agra in the latter suit was that the deed of gift was not a sale and no suit for pre-emption could therefore, be entertained. There was an appeal from this decree to the District Judge of Agra who came to the conclusion that the donee had undertaken to pay a prior mortgage due to Rup Ram, and that the gift was to that extent for a consideration, promised to be payable. At the same time he expressed the opinion that the deed of gift was void under Section 53 of the Transfer of Property Act and Section 23 of the Indian Contract Act in as much as it was intended thereby to defraud the plaintiffs who had filed a suit for pre-emption in respect of the property and to defeat the right which they had acquired by reason of the prior sale. The result of that decision was that the suit for pre-emption brought by the present plaintiffs-respondents in respect of the alleged deed of gift was dismissed. The plaintiffs have filed no appeal from that decree which has become final. The defendant-vendee has, however, filed an appeal against that decree; and his contention is that the decision of the lower appellate Court that the deed of gift was void under Sec. 23 of the Indian Contract Act or Section 53 of the Transfer of Property Act was erroneous. The learned District Judge had further held that the gift was virtually a transfer of an exproprietary right and it was, therefore, also void under Section 20 of the U.P. Tenancy Act (II of 1901). The correctness of that finding is also challenged here.