52. Har Narain, one of the executants of the sale-deed, was examined as a witness on behalf of the defendants. He stated;

"Hari Singh and his party were not ready to pay Rs. 23,000 unless a gift deed in their favour was executed. I was to execute the gift deed in favour of Hari Singh and his party so that the price might be settled at Rs. 23,000, I was considering Rs. 23,000 as the proper price for the entire property of Mathurapur .....I did not get the gift deed registered at once fearing that if Hari Singh and his party would back out from the sale transaction the gifted property would go out of our hands. I was not ready to execute & deed of gift unless the sale-deed was to be executed. I wanted to dispose of the property of Mathurapur in one lot."

A straight question was then pub to this witness as follows :

"Q. Is it not a fact that you were not prepared to part with any portion of Mathurapur property by gift apart from the sale transaction?"

The reply of the witness to this question was :

"My personal intention was that no property should be gifted away apart from the sale transaction and I settled the sale transaction and the one of gift with that intention in my mind"

I see no reason to doubt the veracity of the aforesaid statement made by Har Narain

53. The plaintiffs alleged on these facts, that the entire transaction evidenced by the two documents was one of sale and that they had a right to pre-empt it. The defendants pleaded, that there were, in fact, two distinct transactions, one of gift and the other of sale, that the defendants had become co. sharers in all the five khata khewats before the sale deed was executed in their favour, and that, therefore, the sale was not liable to pre-emption. The learned 1st Civil Judge of Meerut accepted the plaintiff's case and decreed the suit for pre-emption of the entire property covered by the deed of gift and the sale-deed on payment of Rs. 23,000.

54. My learned brother Bhargava agrees with the decision of the Court below and has stated his conclusions as follows :

"It would thus appear that there was one transaction: of sale of the entire share of the vendors in different khata khewats of village Mathurapur for Rs. 23,000 in respect whereof two deeds were executed, one of which was fraudulently described as a deed of gift and that the last mentioned document was a sham transaction, the property covered thereby having been actually sold along with the rest of the property for Rs. 23,000 and it was never intended to operate as a deed of gift."

55. On the other hand, my learned brother Sapru is of the opinion, that the ostensible deed of gift is, in fact, a deed of gift by reason of which the plaintiffs are precluded from claiming a right of pre-emption. He has stated his conclusions in the following words:

".... I am clearly of the opinion that the plaintiff pre emptors have not discharged the burden which rested upon them of proving that the gift deed was not what it purported to be, i.e. a deed of sale and not a deed of gift ..... I would further hold that the vendeea did not become owners of the property covered by the sale deed which was registered on the same day but a little later by virtue of that deed. The position, therefore, is that at the time the deed of sale was executed, the vendees were co sharers in the village."

56. Under these circumstances the following two points have been stated for my opinion :

"(a) Whether the deed of gift dated 22-6-1943 was not intended to operate as a deed of gift at all but was, in point of fact, a sale, the price of the 10 biswas comprised in it having been taken into consideration in fixing the amount of sale consideration of Rs. 23,000?

(b) Whether the plaintiff pre-emptors have, in the light of the principles laid down in Shiam Sunder Lal v. Sarmadi Begam, A. I. R. (27) 1940 All. 171, and Randhir Singh v. Randhir Singh, 1937 All. L. J. 743, discharged the burden which rested upon them of proving that the gift deed was not what it purported to be, i.e., a deed of sale and not a deed of gift? If as or not, what is its effect?"

57. I agree with brother Sapru that it is permissible to resort to a device, if it is not illegal, to defeat a claim for pre-emption. I would, how-ever, like to formulate the rule differently, for the rule, so formulated, appears to favour evasion and has a look of being an unjust rule, whereas, in fact, it is not a rule of this kind, for the rate permits neither evasion nor any unjust encroachment on the right of others. It only permits a proposed vendee to improve his position vis-a-vis the likely pre emptors by acquiring a status equal or superior to theirs. He may do so by acquiring property in the village, mahal or the sub-division of the mahal, which he intends to purchase, by a transaction which is not liable to pre-emption. Exchange and gift are two such transactions which are most frequently resorted to.

58. Whenever a proposed vendee, before purchasing the property, acquires a small bit of it by exchange, the only matter that requires investigation is, whether the transaction of exchange is a genuine transaction or only sham and bogus, for sometimes without any intention of conveying any title to the properties purported to be conveyed, the parties to a deed of exchange only make a pretence and show of having conveyed them. In such a case, each party to the deed remains in possession and continues to exercise acts of dominion over the property, which he purports to convey. The document in such a case remains inoperative and the transaction is, what is known as a mere 'paper transaction' or a sham or bogus transaction. As already stated, in such a case the only question that calls for determination is, whether the parties did, in fact, intend to convey the properties which they had purported to convey, for if the intention be there, the deed of exchange would convey a perfectly good title, against which a claim for pre-emption would be of no avail.

59. Randhir Singh v. Randhir Singh, 1937 ALL. L. J. 743 provides an instance of this kind. As held by this Court in that case, it is immaterial in such a case that the exchange and the sale form part and parcel of the same transaction and that the exchange would not have been made if the sale was not to be effected; and as pointed out by the learned Judges.

"Reading Sections 54 and 118, T. P. Act, there can be no doubt, that where a party not only pays a cash consideration but also gives some property in addition, in lieu of property acquired by him, the transaction is not a Bale within the meaning of Section 54 but is an exchange within the meaning of Section 118."

In a case like this, if the transaction be deemed to consist of two transactions, one of them, namely, the prior one, remains a transaction of exchange, not liable to be pre-empted; and if the entire transaction be regarded to be a single indivisible transaction, it, nevertheless, remains a transaction of exchange for the reasons set out in the above quotation. In such a case, the only way in which a pre-emptor can get rid of the obstacle created by the transaction of exchange is by proving that the transaction of exchange was not intended to be effective and is, in reality, sham or bogus.

60. I do not consider that Randhir Singh's case (1937 ALL. L. J. 743) is an authority for the proposition that a Court is not entitled to consider the combined legal effect of the two transactions, if they are so inter-related, in fact, as to form part of a transaction which can be treated to be a single transaction, although this case is an authority for the proposition, that if the intention of the parties be to exchange small bits of properties, even though with the avowed object of defeating a claim for pre-emption, the transaction will not cease to be an exchange merely because it defeats a right of pre-emption. 61. Where an intending vendee acquires some little property by gift from a person other than the intending vendor, in order to acquire a statue equal or superior to that of likely pre emptors, as in Shiam Sunder Lal v. Sarmadi Begam, A. I. E. (27) 1940 ALL. 171, to meet a claim for pre emption, the plaintiff-pre-emptor can succeed in his suit only if he can prove that the ostensible gift is sham and bogus or that it is, in fact; a sale. He can establish that the gift is sham or bogus either by showing that the donor did not intend to give effect to it and went through a paper transaction only, or by showing that the property purported to be conveyed by the gift deed does not exist or does not belong to the donor. He can establish that the ostensible gift is, in reality, a sale, by proving that a price was paid for the property conveyed by the ostensible gift deed, although it has not been mentioned in the deed of transfer and a false recital has been inserted in it with a view to screen the real nature of the transaction. It is not possible to contend in such a case, that the ostensible gift is in reality, a sale, on the ground that the gift and the sale form part and parcel of one indivisible transaction and that they together amount to sale, for whatever be the motive of the donor in such a case, the transfer by him cannot be treated to be a sale, for he receives no money compensation for the property conveyed by him.

62. Where, however, the intending vendee acquires property by an ostensible gift deed from the intending vendor under similar circumstances, the position is somewhat altered. With great respect to my learned brother Sapru, I find myself unable to concur in his opinion, that in such a case also the intention of the ostensible donor or of the parties to the transaction is, the sole determining factor. The legal effect of a transaction cannot always be controlled by the intention of the parties. Where property is transferred for a money consideration, the transaction cannot be treated to be a gift and not to be a sale merely because the transferor or the parties intended it to be a gift and not a sale.

63. To give a concrete illustration, if A, desiring to acquire some property from B, should make a gift in favour of B of the money for which B is willing to part with the property, and B should, in return of the gift in his favour, convey the property to A by means of a gift deed, the transaction, in the eye of law, would nevertheless be one transaction of sale and not two transactions of mutual gift, even though the parties might have so intended. In my opinion, it makes no difference when the transaction is not carried through in this exact form, but instead of the whole property being conveyed by means of a gift deed, only a portion of it is so conveyed and the rest of it is conveyed by a sale deed and instead of a gift being made of the money, it is shown as consideration for the sale of that portion of the property only which is mentioned in the sale deed. In all such cases, it is the substance of the transaction, and not the garb in which it is clothed, that really matters. A Court of law should not be deceived by the garb but should penetrate through it and having discovered the reality, give effect to the reality so discovered.

64. I desire to make it clear that I do not hold, that in no case is it possible for an intending purchaser to acquire some little property from an intending vendor by means of a gift deed, in order to avoid pre-emption, for, it may be possible to conceive of cases where a gift made with such an object would not become a sale; but I do hold, that where one party only pays money and the other party conveys certain property on receipt of money consideration and that that other party would have conveyed no portion of the property if the entire amount of money agreed to be paid had not been paid, the entire transaction amounts, in law, to one indivisible transaction of sale, in whatever form the transfer may be made; and it makes no difference that a portion of the property is conveyed by a gift deed and the rest of it by a deed of sale. In such a case, the payment of the money is the consideration for the transfer of the entire property covered by both the deeds, for the obstensible donor would not have conveyed the property mentioned in the ostensible gift deed if the entire sum agreed upon had not been paid to him, although in the form of consideration for that part of the property only which is mentioned in the sale deed.

65. To hold otherwise will result in recognising something which is not a mere legitimate device to defeat the claim of certain pre empbors, but which is a fraud on the law of pre-emption itself and which will completely abrogate it, for a vendor loses nothing by conveying a portion of the property, intended to be transferred, by a gift deed so long as he gets the desired price for the entire property.

66. So far as the present case is concerned, I am fully satisfied from the statement of Har Narain that the two ostensible transactions of gift and sale amount, in law, to one indivisible transaction of sale. Har Narain is a witness fort the defendants themselves. He is not only one of the executants of the sale deed, but he is also the person who carried out all the negotiations on behalf of the vendors. I have, therefore, no reason to doubt the veracity of his statement so far as it is in favour of the plaintiffs. I have already quoted in an earlier part of this judgment, the relevant extracts from his deposition, from 'which it is proved beyond doubt that the defendants-transferors were not prepared to part with any part of the property mentioned in the two-deeds of transfer, unless they were paid a sum of Rs. 23,000.

67. Of course, Har Narain states, that he had asked the vendees to settle the price of the property after leaving out of account property worth about Rs. 100 of which a gift would be made in favour of the vendees. He does not, however, say that the vendees would have been required to pay anything more if the property conveyed by the gift deed had been included in the sale deed and no separate document of conveyance had to be executed to avoid pre-emption. He admits that:

"I was not ready to execute a deed of gift unless the sale deed was to be executed. I wanted to dispose of the property of Mathurapur in one lot," and further that, "I did not get the gift deed registered at once fearing that if Hari Singh and his party would back cut from the sale transaction, the gifted property would go out of our possession."

68. It is thus evident, that the conveyance of the property, mentioned in the ostensible gift deed, was dependent on the transferees paying to the transferors a sum of Rs. 23,000 ostensibly for the property to be mentioned in the gale deed only, that the transactions were not to be dissociated from each other in any way, that the whole property of Mathurapur was to be conveyed is one lob. In substance, the transaction, therefore, was one indivisible transaction in which the transferees were to pay a sum of Rs. 23,000 in all to the transferors and the transferors were to convey their entire property in village Mathurapur in consideration of that payment. Such a transaction amounts, in law, to a transaction of sale and not to two transactions, one of gift and the other of sale, whatever the intention of the parties may be and in whatever form the transaction may be clothed.

69. My learned brother Sapru has laid great emphasis on burden of proof in this case. I agree generally with him that initially the burden of proof lay upon the plaintiffs to prove, that the ostensible transaction of gift is really a transaction of sale, but as observed by their Lordships of the Judicial Committee in Yellappa Ramappa, v. Tippanna, 1929 ALL. L. J. 4:

"In any case onus protandi applies to a situation in which the mind of the Judge determining the suit is left in doubt as the point on which side the balance should fall in forming a conclusion. It does happen that as a case proceeds the onus may shift from time to time. There never is any duty upon the part of the Judge to be blind to facts established before him. . . .. "

70. On the facts established in this case, unless I choose to be blind to them, I have no doubt that the balance falls in favour of the plaintiffs and even if it be assumed that the facts established in the case do not put the matter beyond doubt, I consider that after Har Narain's statement the onus had definitely shifted on to the shoulders of the defendants and that they have failed to discharge it.

71. It was argued before the Bench that the ostensible gift is, in fact, not a gift, because it is not a transfer made without consideration, even though it might have been made without any money consideration having been received for it. My learned brother Sapru has discussed at considerable length the meaning of the term 'consideration' in that connection and has endeavoured to show that 'consideration' is something different from 'motive'. It seems to me that it is not necessary to enter into this question for the decision of this appeal, which depends upon, whether the document dated 22-6-1943, does or does not re-present a transaction of sale, and not upon whether it does or does not represent a transaction of gift, for if it does not represent a transaction of sale, the transaction evidenced by it is not pre-emptible even though it may not amount to a transaction of gift.

72. My opinion on the first point is that the ostensible gift and sale together constitute but one transaction of sale, evidenced by two documents, one deed of gift and the other a sale deed, and that, for this reason, the deed of gift, dated 22-6-1943, even though it might have been intend-ed to operate as a deed of gift, amounts, in law, to a sale deed. I am further of opinion that the whole property was intended to be conveyed by the defendants transferors to the defendants transferees on payment of Rs. 23,000 to the defendants transferors, and that, therefore, the value of ten biswas of the property was not taken into consideration separately but that this ten biswas property was taken into consideration by the parties when the sale consideration of Rs. 23,000 was fixed.

73. So far as the second point is concerned, I have discussed the case of Randhir Singh v. Randhir Singh, 1937 ALL. L. J. 743 in some detail, and I have pointed out that there is nothing in that case to indicate that a Court is precluded from going behind the form in which a transaction is garbed and from ascertaining the substance and real nature of the transaction. I have, however, failed to discover in Shiam Sunder Lal v. Sarmadi Regain, A. I. R. (27) 1940 ALL. 171 any principle guiding the decision of this case, escept that it may be supposed that Shiam Sunder Lal's case implicitly decides, that the burden of proof lies upon the plaintiff pre-emptors to establish that an ostensible transaction of gift is not a gift in reality. Keeping in view what has been said in these two cases, I am of opinion that the facts established in this case leave no room for doubt that the deed of gift does not evidence a transaction of gift, but the con veyances purporting to have been made by means of the two documents in suit, in substance and reality, amount to one transaction of sale, for a consideration of Rs. 23,000.

74. Let the papers is laid before the referring Bench with this opinion.

Sapru, J.

75. On the points on which there was difference of opinion between us, the opinion of Seth J., to whom this case was referred by the learned Chief Justice has now arrived. In accordance with that opinion, we dismiss this appeal with costs and affirm, the judgment and decree of the trial Court.