1. The question which is raised for decision in this second appeal is whether the plaintiffs pre-emptors were liable to pay Rs. 8,750 for the property sought to be pre-empted or only Rs. 5,500 as founded by the Courts below.
2. Ordinarily, the question as to the price which was paid for properties sought to be pre-empted is a question of fact, Which cannot be considered in second appeal. In this case, however, it is alleged that the law as laid down in Section 17 of the Agra Pre-emption Act, has been misapplied and that the judgment of the Courts below cannot be accepted.
2. We think it advisable, therefore, in the first instance, to-consider the prosions of Section 17 above mentioned. It is not to be denied that the section is unfortunately worded and obscure. Sub-section (1) states that where in any suit on the basis of the sale, the Court finds that the plaintiff has a right of pre-emption, but that the ostensible price was not the actual price, it shall proceed to ascertain the actual price, and shall pass a decree for pre-emption on payment of such price. Sub-section (2) lays down that in such a case the burden of proving the actual price shall lie on the vendee, and, in the absence of satisfactory proof, the Court must proceed to ascertain the market value of the property and to pass a decree for pre-emption on payment of the value so found.
3. If Sub-section (1) of Section 17 is literally interpreted, it is difficult to see how the provisions of Sub-section (2) can be given effect to, for under Sub-section (1) the Court "finds" that the ostensible price was not the actual price, and then proceeds to call upon the vendee to proved what the actual price was. If the Court, for example, in a case where the ostensible price was not the price mentioned in the sale-deed, namely, Rs. 10,000, finds that this ostensible price was not the actual price, how is it possible for the vendee then to try and prove the case that the price mentioned in the sale-deed, i.e., Rs. 10,000 was the price actually paid? We think, therefore, that the word "finds" as used in Sub-section (1) does not mean that the Court must come to a definite conclusion that the ostensible price was the actual price, but that the meaning is that some evidence must be given by the plaintiff in order to raise a presumption that the ostensible price was not the price actually paid. A presumption of this kind having been raised in favour of the plaintiff, the burden of proof then shifts to the vendee, and he has to satisfy the Court that the price shown in the deed was the price actually paid by him. If he fails to satisfy the Court then all the Court can do is to enter into the evidence regarding the market-value of the property and pass a decree for pre-emption on payment of the market value so found.
4. In the present case the property which was sold consisted of two shares situated in a village called Jalalpurwari. According to what is stated in the plaint these two shares amounted to 3 annas 7 pies and 15 karants, and in the plaint it was stated that the revenue payable in respect of this property was Rs. 82 odd per annum. According to the sale-deed, which is dated the 1st April 1924, the price which the vendees paid for these properties was Rs. 8,750. According to what is stated in the deed and in the endorsement, Rs. 500 had been paid as earnest money and it was represented that Rs.: 8,250 were actually paid to the vendors in the presence of the Sub-Registrar.
5. The plaintiffs came into Court, and stated that this price of Rs. 8,750 was wholly fictitious, and that as a matter of fact the money which was paid to the vendors was Rs. 4,000 and no more. In paragraph 3 of the plaint it was stated that the market price of the property sought to be pre-empted does not exceed Rs. 4,000 and as a matter of fact the property has been sold for that sum. Before the trial began the plaintiffs' pleader was asked to elucidate the meaning of this plea and his statement was to the following effect:
Plaintiffs' pleader states that only Rs. 4,C00 were paid before the Sub-Registrar. The vendors counted the money: before the Sub-Registrar and informed him that they has received Rs. 8,250. There was a fraud on the Sub-Registrar.
6. We may now mention that no attempt was made to support the case thus stated by the plaintiffs' pleader. The case for the defendants was that as a matter of fact the price was Rs. 8,750, namely, Rs. 500 paid as earnest money before the execution of the deed and Rs, 8,250 paid to the vendors in the presence of the registering officer.
7. The issue raised in the trial Court relating to the price was issue No 5: What is the sale consideration? The Subordinate Judge thought that the provisions of Section 17, Sub-section (2) applied. He was of opinion that the burden of proving the actual price was shifted to the vendees. We do not think that the Subordinate Judge was wrong in laying the burden of proof upon the vendees, for it is clear from all the evidence on the record that the price alleged to be given in this particular instance was a very high price indeed. The Subordinate Judge refers to the evidence of the patwari, who stated that the net profits of this property came to Rs, 56 a year only. On this matter we are inclined to believe that these profits which the patwari appears to have abstracted from the village papers, are unreasonably low. It was the plaintiff's case, (and the patwari admits it) that the land revenue of the property sold comes to Rs. 82 odd, and it seems to us very absurd to think that a property which pays this revenue, should bring in a profit of Rs. 56 only. The patwari in giving evidence admitted that he had not taken into consideration the income from certain dhak trees. It appears that there are 22 bighas of these trees in this village and it is reasonable to suppose that they brought in some income, and the patwari admits that this income was not included in his statement of the profits. While, however we are not prepared to accept this evidence as being an accurate representation of the profits, we are of opinion that even on the basis that the profits were equal to the amount of revenue assessed upon it, the price was an exceptionally high one.
8. The Subordinate Judge then having shifted the burden of proof on to the vendees, proceeds to dispose of their evidence with the remark that it is of no value and no reliance can be placed upon it. He does not examine the evidence in any detail, nor criticise it, nor again does he make any reference to the fact that the statement of the purchasers is corroborated by a certificate of the Sub-Registrar in the registration endorsement. That endorsement is admissible under Section 60 of the Registration Act for the purpose of proving the truth of the statement contained in it. All that the Subordinate Judge says is this:
The defendants have examined one of themselves Abdul Ghafur, Khawaja Hasan and others, but the evidence of none of them is of any value and no reliance can be placed upon it.
9. He then proceeds to discuss certain documents which were produced by the parties-sale-deeds which were put forward for the purpose of showing what the rates of purchase are in this village. He does not seem to have drawn any definite conclusion from these documents. (After considering the evidence as to consideration his Lordship proceeded.) It is said that the plaintiffs are in great difficulty in a case of this kind inasmuch as they cannot be expected to contradict evidence by the vendees for the purpose of showing what took place at the time of registration. That, however, is a difficulty which cannot be avoided from the nature of the case though we may remark incidentally that it did not present itself as a difficulty to the plaintiffs in this case, for, as we have pointed out, the case which their pleader stated that he was going to prove was that as a matter of fact only Rs. 4,000 was paid in the presence of the Sub-Registrar. That case has failed and there is no support for it whatever. The fact that it is difficult for a plaintiff to rebut evidence given by the purchaser, must not be treated as Sufficient reason for holding that as a-matter of fact the price set out in the sale-deed is not fictitious. It is not quite clear to us that property in this village does sell at a high rate, and it is for this reason that we are disposed to think that the profits, as stated by the patwari, are not the actual profits. It may be remembered that when he was giving his evidence, Abdul Ghafur stated that he was willing to offer the plaintiffs even a higher rate for the land in their possession. That sort of an offer perhaps may be treated merely as a piece of bravado, but, we were informed by the learned advocate for the pre-emptors at the time of the hearing of the case that the plaintiffs would in no circumstances sell their ancestral property, that is to say, they would not accept any price howsoever high. We gather from this that the value of property in this village mast be extremely high and the plaintiffs, therefore, cannot complain if they have to pay a high price in the present suit. On a review of the whole of the evidence we are of opinion that there is no sufficient reason shown why the evidence put forward by the defendants in this case should not be accepted.
10. Plaintiffs in pre-emption suits are very apt to imagine that they can acquire property at what they are pleased to call the market rate. It would be a mistake if pre-emptors were encouraged in the notion that they can compel vendors to offer for property which is being sold. The true market price of ordinary property is not easily to be ascertained and we think that it is shown in the present case, that the money set out in the sale-deed has actually changed hands, the plaintiffs must pay that sum if they desire to get that property by pre-emption. We have already stated that the plaintiffs came into Court with a case which they could not support and it is also shown how that they have succeeded on a case which was not put forward by them. They did not at any time plead that the actual price paid for the property was Rs. 5,500. On the contrary, they stated that it was Rs. 4,000 only. The result of this is that we are-prepared to hold that the plaintiffs have failed to sustain the burden of proof which was laid upon them, and we are of opinion that the Courts below were wrong in giving, a decree either on the basis of the market value or on the basis of some actual price which was deposed to by a witness whose evidence was unworthy of belief. We may observe here that a rival pre-emption suit was brought by the Defendants Nos. 7-11. We understand, however, that these people have dropped out and have failed to take advantage of the decree passed in their favour in the Court of first instance.
11. We allow this appeal, set aside the decree of the Court below, and order a decree to be prepared for pre-emption on payment by the plaintiffs of Rs. 8,750. That money must be paid into Court within three months from the date of this Court's decree. If so paid the plaintiff 's claim will be decreed with costs in all Courts. In case of default, the plaintiffs' suit will stand dismissed in all Courts with costs.