MAKHAN SINGH Vs. JAHAN KUAR

JUDGEMENT

(1.) THIS appeal arises out of a suit for pre-emption. The first Court granted a decree on payment of Rs. 88. The lower Appellate Court confirmed this decree. The vendees appealed. The first point taken is that the custom is not proved as giving a right to the plaintiffs. We consider that the Courts below were justified in holding that the plaintiffs had a right of pre-emption. The next point is the question of consideration. The consideration stated in the sale-deed is Rs. 2,000. The plaintiffs own witness admitted that the property was worth Rs. 2,400 and there can be no doubt that the property was worth at least Rs. 2,000. It is very difficult to understand how the Courts below came to give the plaintiffs a decree conditional upon payment of Rs. 88 only. Prima facie the consideration in the sale- deed is to be taken as the true consideration. No doubt where the plaintiff shows that the price is a very excessive price, he can shift the onus on to the vendee of showing that the consideration stated in the deed was actually given. To all intents and purposes if Rs. 88 was the actual sum paid in the present case, the transaction was a gift, in which case there would be no right of pre-emption at all. What the Courts below have really done is to throw the onus upon the vendee of proving all the details of the consideration, and this notwithstanding that the property is worth fully the amount stated in the sale-deed. The Courts below appear to have treated the plaintiffs as if they were reversioners suing to set aside a sale-deed made by another Hindu female. We do not think that the Court was justified in treating a suit for pre-emption in this way. If the reversioners think fit to challenge the alienation by the vendor in the present case they can do so, but in the present pre-emption suit we think the plaintiffs must pay the consideration stated in the sale-deed. We accordingly vary the decree of the Court below by substituting the sum of Rs. 2,000 for the sum of Rs. 88. THIS sum must be paid on or before the 8th of August next. If the sum is not paid within this time the suit will stand dismissed with costs in all Courts. In any event the appellant will get his costs of this appeal.