Ram Saran and Others vs anwal Singh and Others

P.C. Pandit, J.—On 10th June, 1960 by a registered deed Sarup Singh and his brother, Rattan Singh, sold agricultural land measuring 34 kanals and 12 marlas situate in village Sihi, District Gurgaon, to Ram Saran and his three brothers for Rs. 15,000/-. This sale led to a pre-emption suit filed by Kanwal Singh, minor son of Sarup Singh, one of the vendors, through his grand-mother as his next friend. It was stated by the plaintiff that he had a superior right of pre-emption, being the son of one of the vendors and nephew of the other and the vendees being strangers. It was also alleged that the sale price of Rs. 15,000/- mentioned in the sale deed was neither actually paid to the vendors nor was it fixed in good faith and that the market value of the land was also considerably less.

The suit was resisted by the vendees, who denied that the plaintiff was the son of Sarup Singh. In the alternative, it was claimed by them that he was a co-parcener along with his father and on that ground he could not maintain the suit for pre-emption regarding the sale made by his father. It was also pleaded that the suit was a collusive one and had been filed at the instance of the vendors themselves. It was further pleaded that the amount mentioned in the sale deed was actually paid by them to the vendors and besides that they had spent a sum of Rs. 400/- on stamp duty and registration expenses regarding this sale and to this amount also they were entitled in case the plaintiff''s suit was to be decreed.

On the pleadings of the parties, a number of issues were framed.

The trial Judge came to the conclusion that the plaintiff was the son of Sarup Singh vendor, and had, therefore, a preferential right of pre-emption. It was also found that the sale price of Rs. 15,000/- was fixed in good faith and actually paid to the vendors. The market value of the land was also found to be Rs. 15,000/-. The learned Judge came to the conclusion that there was no evidence on the record to show that the plaintiff''s claim was benami or his suit was collusive or that the plaintiff was a co-owner or a co-parcener with his father, as alleged by the vendees. It was also found that there was no evidence to prove that the amounts of the stamp duty and registration fee were paid by the vendees. On these findings, the plaintiff''s suit was decreed on payment of Rs. 15,000/- to the vendees. The parties were, however, left to bear their own costs.

Aggrieved by this decision, the vendees went in appeal before the learned Senior Subordinate Judge, Gurgaon. He also came to the conclusion that the plaintiff was the son of Sarup Singh and his right of pre-emption was, consequently, superior to that of the vendees. He further found that there was no evidence whatsoever on the record to come to the conclusion that the plaintiff brought this suit in collusion with the vendors or that he was a co-owner of co-parcener with them. As a result, he dismissed the appeal with costs throughout. This led to the filing of the present second appeal by the vendees.

The first contention raised by the learned counsel for the appellants was that both the Courts below were in error in holding that the present suit was not instituted by the plaintiff at the instance of the vendors. He submitted that the circumstances of this case clearly proved that Kanwal Singh was merely a figure head and the real plaintiffs were the vendors themselves. In this connection, he argued that the plaintiff was a minor aged 14 years and was reading in the 5th class. The pre-emption suit had been brought within about four months after the execution of the sale deed, since the price of the land in dispute had greatly increased. The sale had been effected by both the brothers to redeem the previous mortgage with possession, which clearly showed that the vendors had no money with them. The decree was passed by the trial Court on 31st July, 1961 and the plaintiff had been given four months'' time to deposit the purchase money. The plaintiff had no funds with him and it were the vendors who raised the money for this purpose by mortgaging some property of theirs on 26th July, 1961 for Rs. 8,000/- and by selling a part of it on 26th December, 1961 for Rs. 8,540/-. In view of all these circumstances, learned counsel argued that it should have been held that the plaintiff''s suit was a collusive one and the plaintiff was merely a figurehead. For this submission, he also relied on a Bench decision of this Court in Smt. Kunti Devi v. Kharaiti Ram etc., Letters Patent Appeal No. 31 of 1950, decided by Khosla and Falshaw, JJ. on 25tb November, 1952.

Both the Courts below have found as a fact that the plaintiff''s suit was neither benami nor collusive as alleged by the vendees. It is undisputed that unless the contrary is clearly established, it is to be presumed that the plaintiff is suing for his own benefit. The onus lies very heavily on the vendees to establish that the suit had been instituted for the vendors'' benefit, which, according to the Courts below, they have failed to prove in the present case. The mere fact that the plaintiff is a minor and the son of one of the vendors, does not show that the suit was for the benefit of the vendors. The plaintiff''s next friend has appeared in the witness-box as P.W. 4 and has sworn that she was financing the litigation with the money which she had got from her deceased husband. It is not. proved on the record that the vendors had raised the money by mortgaging and selling a part of their property, because only an application under Order 41, Rule 27, Civil Procedure Code, had been made before the lower appellate Court to prove this fact by bringing on the record certain documents, but this application had been rejected by the learned Senior Subordinate Judge for the reason that no ground had been made out for producing additional evidence. The authority relied upon by the learned counsel has no application to the facts of the present case. There the learned Judges found that the plaintiff-pre-emptor was an unmarried girl living with the vendor, who was her grand father, and in the witness-box she stated that she did not know what was the area of the land in suit, what village was it situates in, who were the vendees and what was the price. From these facts, the learned Judges concluded that there could be no plainer indications of the fact that she knew nothing about the suit at all and her name had merely been borrowed by other persons for purposes of their own, or in other words she was not a plaintiff at all. Under these circumstances, the Courts below were right in holding that the vendees had failed to establish that the plaintiff''s suit was a collusive one. This finding of fact has not been shown to be vitiated by any error of law and is, consequently, binding in second appeal.

The next contention raised was that the finding given by the Courts below that the plaintiff was the son of Sarup Singh was also wrong and reference in this connection was made to two documents, Exhibit P. 2, a copy of the entry in the birth register in which the date of birth of one Jit Singh son of Ram Sarup Singh was shown to be 3rd September, 1945 and Exhibit D.W. 4/1, a copy of the entry in the register of the school from where the plaintiff got his education and in which his date of birth was entered as 1st June, 1951.

It appears from the judgment of the learned Senior Subordinate Judge that no reference was made before him to Exhibit P. 2, He, however, did consider Exhibit D.W. 4/1, apart from the other oral evidence produced by both the parties. The trial Judge on the other hand, considered both these documents. The Courts below have believed the evidence produced by the plaintiff and rejected the evidence of the defendants. The finding is clearly one of fact and no ground has been made for disturbing the same in second appeal.

It was then contended that the Courts below had erred in law in not awarding Rs. 400/- to the appellants, which they had spent no-wards the stamp duty, registration etc.

There is merit in this submission. The trial Judge, while disposing of this matter, as already mentioned above, stated that there was no evidence on the record to prove that these expenses were paid by the vendees. The learned Senior Subordinate Judge, however, has not discussed this question at all and has merely stated that no other point was pressed before him. There is the evidence of Mela Ram, P.W. 2, who deposed that the expenses on the sale deed were incurred by the vendees. No ground has been shown as to why the statement of this witness should not be believed. The vendees had taken this point in the grounds of appeal before the learned Senior Subordinate Judge and it does not seem to be probable that they did not urge the same before him, because in the connected appeal (Regular Second Appeal No. 107 of 1962, Ganga Dass v. Kanwal Singh R.S.A. 107 of 1962, which was also disposed of on the same day), this point has been mentioned by the learned Judge but it was negatived on the ground that the learned counsel for the appellant had not cited any authority to the effect that the appellants were entitled to recover the expenses of registration. Since the pre-emptor is taking over the entire bargain from the vendees. 1 see no reason as to why he should not pay the expenses bona fide incurred by them on registration, stamp, duty etc., as a part of that bargain.

Lastly, it was contended that during the pendency of the appeal in this Court, the land in dispute had, admittedly, been acquired by the Government and, therefore, the plaintiff should not be granted a decree for pre-emption, since his right to the property would accrue only on the day of the compliance of the decree passed by this Court. The argument proceeded that since there was no land in existence now, no decree for pre-emption could be given. Reliance for this submission was also placed on the Privy Council decision in Deo Nandan Prashad Singh v. Ram Behari Chowdhri ILR 44 Cal. 675.

There is no merit in this contention. According to the provisions of Order 20, Rule 14, Civil Procedure Code, the title of the pre-emptor in the property accrues from the date of the payment of the purchase money. Admittedly, the decree passed by the Courts below had been complied with by the pre-emptor by making payment of the purchase price within time. As a result, the title to the property in dispute vested in him and on the date of acquisition of this land, he was the owner thereof. If this Court finds that some more money has to be paid by him to the vendees, he shall have to deposit the same within the time prescribed, otherwise his suit will be dismissed, But in case he pays the additional amount within time, then the property would remain with him and it cannot be said that the title will accrue to him only from the date when he deposits the additional amount. The title vested in him much earlier that is from the date, when he deposited the purchase money. The Privy Council authority relied upon by the appellants has no application to the facts of the present case. Moreover, it is based on the provisions of section 24 of the CPC 1882, the language of which is somewhat different from the provisions of Order 20, rule 14, Civil Procedure Code, 1908.

In view of what I have said above, this appeal is partly accepted and the pre-emptor is directed to deposit the additional amount of Rs. 400/- in the trial Court within four months from today, tailing which his suit will be deemed to have been dismissed. This amount will then be paid to the vendee-appellants. In the circumstances of this case, however, I will leave the parties to bear their own costs throughout.