Shrimati Parkasho Devi vs Gura Ram and another

C.G. Suri, J.—Smt. Parkasho Devi appellant acquired the land in dispute by transfer from Chhaju Ram, respondent No. 2. Gura Ram respondent No. 1, filed a suit for preemption alleging that the transfer was in fact a sale for a price of Rs. 1,000/- and that it had been wrongly given the guise of a gift in the registered deed, Exhibit D. 1, and that he was entitled to pre-empt this sale as he was in possession of the land in dispute as a tenant of the owner, Shri Chhaju Ram, respondent. The trial Court found that the transaction was in fact a gift as described in the registered deed, Exhibit D. 1. The suit was, therefore, dismissed by the trial Court An appeal filed by Gura Ram was, however, allowed by the District Judge, Gurdaspur who has come to the finding that the transaction was in fact a sale The case has, thereiore, been remanded to the trial Court under Order XLI, Rule 23A of the CPC for redecision on other issues. The transferee has come up in second appeal to this Court.

The following portions of the judgment of the learned Court of First Appeal would show that it is based mostly on conjectures:

All that is mentioned therein (Ex. D 1) is that defendant No. 2 had been rendering a service to defendant No. 1 and the latter being pleased with that service had made the gift of the land in (sic)soute in her favour. If the gift had really been made on account of the marriage of defendant No. 1 having been arranged by defendant No. 2, this fact must have found place m the gift deed, Ex D. 1, in so many terms.

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The copy of the order dated 21st December, 1967 of the Assistant Collector II Grade, Pathankot, Ex. P. 1, reveals that Gura plaintiff had not paid the rent from kharif, 1966, to Rabi, 1967, to Chhaju Ram defendant, as a result of which the latter had to file a case against the phintiff before the Assistant Collector, Pathankot. The said case was instituted on 16th October, 1967 and it was decreed in favour of defendant No. 1 on 2lst December 1967. The gift deed Ex. D 1, is dated 18th November, 1967, This would show that the said transaction had taken place when the case for the recovery of the arrears of rent was still pending before the Assistant Collector between the plaintiff and defendant No. 1. The fact that the deed Ex. D 1, came into existence in the wake of the institution of the case for the recovery of rent by defendant No. 1 would indicate that, in all probability, the present transaction was given the cloak of a sale simply to defeat the right of pre eruption of the plaintiff.

A bare perusal of the gift deed, Ex. D. 1, would show that it was got attested by defendant No I from Sh. Tarlok Chand Advocate, as a witness. This means that Sh. Tarlok Chand, Advocate, was present at the time of the execution of the said deed, The presence of this lawyer at the time of the execution of Ex. D. 1 would show that, most probably, he had been consulted in the matter by defendant No. 1 and it was on his advice that the present transaction was given the cloak of a gift.

The use of the words ''most probably'', ''in all probability'' and must have'' in the extracts above would suggest that the learned District Judge was not very clear in his mind as to the exact inferences to be drawn from the evidence examined by the parties. Two out of the three attesting witnesses of the document had died and the one who was suriving had not been examined by any of the parties. The blame for the omission may appear to have been laid at the door of the appellant when it was for the pre-eaaptor to establish the real nature of the transaction. If the appellant had realty arranged Chhaju Ram''s marriage with a girl who was her relation then this was one form in which services could have been rendered to the owner of the land There was nothing unnatural in the owner making a gift of land worth about Rs.,000/- in lieu of these services. Marriage is a life long benefit conferred on a person and he may have taken some time to realise the real boon conferred on him by the securing of a suitable life partner. The fact that the plaintiff pre emptor was In arrears with the payments of rent of the land would hardly be a reason for parting with the land. This was no way of punishing a defaulting tenant. The owner had mortgaged some other land for a sum of Rs. 2,000/- some months before the transfer of the land in dispute This does not by itself suggest that the land-owner could not have made a gift of a small portion of his land in order to repay a kindness done to him for his life-time

The learned counsel for the appellant, Shri Sarin, has cited in this connection a Division Bench ruling of this Court in Rati Ram and Others Vs. Mam Chand and Others, Dua J. who wrote the judgment for the Bench and who is now on the Supreme Court was pleased to observe 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 light 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 pre-emption suit, who is an aggressor, must prove affirmatively that the transation which he wants to pre-empt is a sale and that he has a preferential right over the vendees; in case there exissts a doubt about the transaction in question being a sale the plaintiff must fail. The policy underlying the law of pre-emption 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.

While dealing with the contention that the question whether a transaction was a sale or a gift was a quastion of fact, the Hon''ble Judge was pleased to observe as follows:

Where from the proved facts on the record no proper inference in favour of the transation being a sale can be drawn and the Courts below have erred in doing so, this error is clearly an error of law.

The deed incorporating the terms and conditions of the transaction had described it as a gift. The scribe of the document who had been examined by the appellant had also stated on oath that no consideration had passed in his presence. Under the circumstances, there was hardly any evidence to justify the finding of the lower appellate Court that the transaction was a sale and not a gift.

I, therefore, accept the appeal, set aside the order of the lower appellate Court remanding the case and dismiss the plaintiff-respondents pre-emption suit with costs throughout.