AMOLAK Vs. ABDUL MAJID; RANJI LAL

JUDGEMENT

(1.) This is an appeal by the defendant vendee in a suit to establish a right of pre- emption. A preliminary objection is raised by the learned Counsel for the respondents on the ground that the memorandum of appeal was not properly stamped when it was presented. The stamp on the memorandum of appeal was found to be deficient, but the deficiency was made good within the time fixed. In our opinion the case falls within the purview of Section 582(a) of the Code of Civil Procedure and we repel the preliminary objection.

(2.) The plaintiff respondent came into Court on the allegation that the defendant No. 2 had sold to the other defendant his zamindari property under a sale-deed dated the 26 of April 1904; that through fear of pre-emption a sum of Rs. 3,500 had been entered as the purchase money in the sale-deed, but that as a matter of fact the sale transaction was effected for Rs. 1,200, which the plaint stated to be the market value of the property. The plaintiff in his plaint stated that he was willing to pay the vendee Rs. 1,200 or any amount which the Court might adjudge to be the proper value of the property sold. The defendant vendee pleaded that the entire purchase money entered in the sale-deed had been paid. The Court of first instance found on the evidence that the sale price entered in the sale-deed was "at an unheard of rate." It did not accept the sum entered in the sale-deed as the real price, but determined that the real price was Rs. 1,733 and gave plaintiff a decree conditional on his paying this amount.

(3.) The defendant vendee appealed and in his petition of appeal took exception to the sale consideration as fixed by the first Court. On appeal the learned District Judge held, with reference to the evidence as to the income of the village, that the amount entered in the sale-deed, which is upwards of 67 years purchase must be. considered to be a fancy price. The learned Judge rightly remarks that it cannot be disputed that "if a purchaser is prepared to pay a fancy price for a property, a pre- emptor is bound to pay that price also," and that "if the actual price paid is satisfactorily established that is an end of the matter." He then referred to the previous decisions of this Court as indicating the principles which should guide Courts in matters of this kind. He held that the evidence adduced by the plaintiff had the effect of shifting to the defendant vendee the burden of proving that the sum entered in the sale-deed had been actually paid. He declined to accept as conclusive evidence the fact that Rs. 3,000 had been paid in the presence of the Sub-Registrar, and on consideration of the evidence as a whole he agreed with the lower Court that there was absolutely no reliable proof as to what was really paid, and held that the Court was right in adopting the fair market value as the best indication of what the price was. The defendant vendee comes here in second appeal.