RANDHIR SINGH Vs. RANDHIR SINGH

JUDGEMENT

(1.) This is an appeal by the defendants vendees arising out of a suit for pre- emption brought on the basis of a sale deed dated 11 December 1929 executed by Chatur Singh and Tileshar Singh, defendants 1 and 2, in favour of Randhir Singh and Dasrath Singh, defendants 3 and 4. Defendants 5-7 have also been inpleaded on the allegation that they are members of a joint Hindu family with the vendees and are interested in this transaction. The plaintiff alleged in the plaint that in addition to this sale deed a fictitious document purporting to be a dead of exchange was also executed, but the entire property had been sold to the defendants and the vendors were not in possession of the property which they had purported to transfer under the deed of exchange and the plaintiff alleged that the said document did not confer an indefeasible right on the vendees because it was liable to be set aside by the other members of the joint family. The plain, tiff claimed preemption of the entire property mentioned in the sale deed, as well as the small fractional share mentioned in the deed of exchange. The defendants denied that the plaintiff had any right to preempt this property, set up the deed of exchange as conferring the rights of a coparcener on the defendants and also set up another unregistered sale deed as giving them a share in this village so as to make them co-sharers. Defendants 5-7 however did not claim any interest in the property and stated that they had no concern with the property sold. The learned Subordinate Judge did not frame any specific issue regards the fictitious nature of the deed of exchange. In summing up the pleadings, he mentioned in his judgment that the plaintiffs had alleged that one day before the sale deed a deed of exchange, which was farzi (fictitious) was executed, that the exchange was really part and parcel of the sale transaction and that defendants 3 and 4 contested the claim, their main pleas being that the exchange was not farzi and that the sale and exchange were separate transactions and the exchange conferred an indefeasible right on the defendants. The first issue framed by the learned Subordinate Judge was: (1) Whether the sale deed and the exchange are separate transactions or they are one and the same transaction?

(2.) His findings are that the exchange and the sale are part and parcel of the same transaction. This is a finding in favour of the plaintiff, as that was the case put forward by him in his plaint. That finding on the facts is correct. The stamp- paper for the deed of exchange was purchased on 16 September 1929 and the document was executed on 10 December 1929 and presented for registration on the same day and was registered on 11 December. The stamp-paper for the sale deed was purchased on 11 December 1929 and the document was executed on the same date and presented for registration on the same day and was entered in by the Registrar the next day. The scribe of the two documents was one and the same person, and even the marginal witnesses and the identifying witnesses before the Sub-Registrar were identical persons. The deed of exchange purported to transfer a very small fractional share in 79.421 acres belonging to the vendors in village Sondhi in exchange for another very small fractional share in village Itauli. The sale deed specifically excluded from the transfer the small share in village Sondhi which had been previously transferred under the deed of exchange. The object of taking the deed of exchange, on the defendants own showing, was to defeat the plaintiff's right of preemption and the two transactions were thought of together and indeed were insisted upon by the vendees. The defendants evidence itself therefore shows that the idea of having these two documents arose at one and the same time and that these two transactions were part and parcel of the same transaction between the parties. In these circumstances, the finding of the lower Court that the exchange and the sale transactions were part and parcel of the same transaction must be accepted as correct.

(3.) As regards the unregistered sale deed which was set up by the defendants, it is said to have been executed on 10 August 1928, but was not registered. The question of this unregistered sale deed will be considered in the connected cases. The learned Subordinate Judge in the opening portion of his findings has remarked, that the mutation of names had been effected so far as the exchange was concerned. The defendant, Dasrath Singh, stated in his examination-in-chief that he had taken two annas land revenne property in Sondhi and gave to the vendors three annas land revenue property in Itauli, and that he was in possession of the property which he had taken and that mutation had been effected in his favour and that the same was the case with the other party with regard to the exchange. The khewat of village Sondhi (pp. 75-79) shows that mutation of names was effected in favour of Randhir Singh and Dasrath Singh on the strength of this deed of exchange in respect of the small fractional share. The khewat of Itauli was produced by the defendants at a rather late stage and was not admitted in evidence by the Court below but has been put on the record in a closed envelope. The learned Subordinate Judge has not remarked anywhere that the deed of exchange was a bogus or fictitious transaction, namely that it was not the intention of the parties thereto that the properties should pass from one to the other and that it was nothing more than a mere paper transaction without there being any intention of any transfer of any property at all. His sole finding is that the exchange and the sale were part and parcel of the same transaction, and there is a further finding that the defendants vendees have not acquired an indefeasible interest in the property because the vendors have sons who might impugn the transaction in future. It is on these findings alone that he has held that the plaintiff's claim should be decreed. The learned Subordinate Judge has given to the plaintiff not only a decree for the properties covered by the sale deed, but also with respect to the properties which have been given under the exchange, and has decreed the claim of the plaintiff for the amount which the defendants vendees had paid. The position therefore is somewhat inconsistent.