Mohinder Singh and another vs Jiwa Singh and others

Harbans Singh, J.—One Jagir Singh and, others sold some land in a joint khewat to the defendants Jiwa Singh and others. Before any suit seeking to pre-empt the sale was filed, one Mohinder Singh, who was also a co-sharer in the Khewat, made a gift of 1 kanal and 14 mar las of land, the value of which was assessed at Rs. 100/-, by means of a registered deed Exhibit D-1. The suit, out of which the present appeal has arisen, was filed by some co-sharers in the khewat seeking to pre-empt the present sale on the allegation that in fact it was not a gift but a sale. Both the Courts below came to the conclusion that the transaction was not a sale but a gift as it purports to be and consequently dismissed the suit of the plaintiffs, who have come up in appeal.

The admitted facts are that the donor and the donees are in no way related. However, there is ample evidence, which has been believed by the lower Appellate Court, that the donees had been living with the donor in village Chanalgon, Tehsil Kharar and it was on account of the affection and the friendship, between the parties that he (Mohinder Singh) transferred this piece of land in village Topra Kalan in order to prevent any pre-emptor to succeed against them. The direct evidence led by the plaintiffs as regards the transaction in dispute was also discussed, but being discrepant, was not relied upon by the lower Appellate Court. It follows, therefore, that after fully appreciating the evidence led the Court came to the conclusion that the transaction was a gift and not a sale.

The learned counsel for the appellant has vehemently urged that the Courts below have failed to take into consideration the most important fact"-namely, that there was no occasion for the donor to mention the value of the land and there was no good reason for the donor to make a gift of such a valuable land to the defendants. The learned counsel mentioned the authority Tara Chand v. Baldeo 117 P. R. 1890 in which it has been stated that the Court can go into the question whether a transaction, which purports to be a gift, is in fact a sale or not for the purpose of determining as to whether the same is pre-emptible or not. There is no quarrel with this proposition of law. He also stressed that when this case went back after decision of the Full Bench, it was held on merits that the transaction was a sale and not a gift. The circumstances of that case were peculiar. The person who was said to have made a gift was a poor farmer who had mortgaged his land a little earlier in order to raise small sum of money, and the donee was a rich trader. Taking all the circumstances into consideration, the Court came to the conclusion that it was not a gift. In the present case, the facts are entirely different. Both the donor and the donees originally lived in the same village in Tehsil Kharar. The donor took the donees to the village in District Karnal where the property in dispute is situated and got them a big area at a comparatively very cheap rate. He, the donor, himself purchased considerable property in that village. As stated by him, he wanted the donees to live with him in that very village and to enable them to keep the property, purchased by them, safe from the pre-emptor, he made a gift of the small area of 1 kanal and 14 marlas, which was estimated at Rs. 100/- and there is nothing on the record that it was worth much more than that. The other case cited is Chiragh Din v. Allah Din 35 I. C. 303 where the property worth Rs. 1,000/- was said to have been given as a gift and it was found therein that the parties were not related and the donees had not rendered any service. In Sajjan Singh Naghia v. Phuman Singh Bir Singh A. I. R. 1954 Punj. 115 there was an exchange of land between A and B and on the same day B sold the exchanged land to C. On these circumstances, it was inferred that in fact it was a sale. In Rati Ram v. Mam Chand AIR 1959 Punj. 117 which was also cited by the learned counsel for the appellant, while reiterating the fact that the Courts can go behind the transaction and ascertain exact nature of the transaction, it was observed as follows:

It is well established that right of pre-emption is a piratical right and it imposes a restriction on the right of the owner to transfer his property to whomsoever he likes. This right operates as a clog on the right of the owner to alienate his property to a person of his own choice; it has therefore to be strictly construed. The plaintiff in a preemption suit who is an aggressor, must prove affirmatively that the transaction which he wants to pre-empt is a sale and that he has a preferential right over the vendees; in case there exists a doubt about the transaction in question being a sale the plaintiff must fail. The policy underlying the law of preemption is to keep out strangers and thus to maintain the privacy and compactness of joint owners. If the transaction in dispute is capable of two interpretations the Courts should be disinclined to hold it to be a sale so as to force the owner of the property to transfer it to a person who is not of his choice. It is well established that it is open to a party to defeat a possible pre-emptor by all legitimate means.

In the present case, the property involved is only 1 kanal and 14 marks. Good reasons existed for the donor to make a gift of the property to the donees in view of their connections and friendship. The donor stated that the transfer was made in order to protect the donees from the assault of the pre-emptor. It is now well settled that it is open to the donees by any legitimate method to improve his status and make it equivalent to or better than the likely pre-emptors. There is no question of fraud involved in this case. Apart from the fact that after appreciation of the evidence the lower Appellate Court had come to the conclusion that the transaction was a gift and not a sale and this would normally be not liable to challenge on merits, even on merits the transaction must be held to be gift and not a sale.

For the reasons given above, there is no force in this appeal and the same is hereby dismissed. The learned counsel for the respondent had asked for an adjournment because he had no papers with him and was not ready to argue the case. In view of the above, there would be no order as to costs.