A lease-deed executed merely to defeat the right of pre-emption, without any intention to be acted upon, is a sham transaction and will not be upheld by the court.

1. On 9th June, 1967, Nand Singh is said to have executed a lease-deed, Exhibit D-2/A, regarding land, measuring 150 Kanals and 7 Marlas, situate in village Landeke, District Ferozepur, in favour of Gurdip Singh for a period of 20 years beginning from 16th June, 1967. The lease money fixed was Rs.1,800/- per year and this had to be paid by the lessee at the end of the year. The land revenue was to be paid by the lessor. There was a term in the deed that the lessor will not be able to evict the lessee before the expiry of the period of 20 years. It was further mentioned that some land out of 150 Kanals 7 Marlas, was under mortgage and the same would be redeemed by the lessor himself before 16th June, 1967. The possession of the land, which was free from mortgage, according to the deed, had been delivered to the lessee and as regards the mortgaged land, it was said that it would be given to the lessee immediately it was redeemed. This lease deed was, however, registered on 13th June, 1967, on which date the stamp duty for this document was also paid. On 13th June, 1967, vide Exhibit D/3, Nand Singh sold the entire land covered by the lease-deed, Exhibit D-2/A, to Kanwaljit Kaur and Simran Kaur, wife and daughter respectively of Gurdip Singh, lessee, for Rs.66,165/-. Kanwaljit Kaurs share in the land was 3/4th, while that of Simran Kaur 1/4th. Out of the sale price, Rs.24,828/- were left with the vendees for payment to the previous mortgagees of the land and the remaining about Rs.41,337/- were paid before the Sub-Registrar. Out of this land, 149 Kanals 15 Marlas were under mortgage with different persons for the total amount of Rs.24,828/- and only 12 Marlas of land were free from mortgage. It was, however, mentioned in the deed that possession of the land sold was delivered to the vendees. It was also stated that the land had already been given by Nand Singh on lease for 20 years and the vendees would be bound by the terms of that lease-deed. This sale led to two suits for pre-emption. One (Suit No. 105 of 1968) was filed by Karamjit Singh and Inder Singh, son and nephew respectively of the vendor, and the other (Suit No. 660 of 1968) by Gurinderjeet Singh, another son of the vendor. Both these suits were later on consolidated and evidence was recorded in the first one.

2. These suits were contested by the vendees and as a result of the pleadings of the parties, a number of issues were framed. We are, however, in this appeal, concerned only with issue No. 3, namely:

"Whether lease in favour of defendant No. 1 (Gurdip Singh) is a sham transaction and consequently the said transaction of lease and the sale in favour of defendants Nos. 2 (Kanwaljit Kaur) and 3 (Simran Kaur) constitute only one transaction as alleged?"

3. The trial Court decreed the suits and it was held that the sons of the vendor had got a superior right of pre-emption and if they deposited the sale-price, they would be entitled to get the property in equal shares in the first instance. If, however, they failed to for so, then the nephew could get the land by depositing the same amount.

4. When the matter went in appeal before the learned Additional District Judge, Ferozepur, he modified the decree passed by the trial Court and directed that the decree-holders would get only symbolical or proprietary and not actual possession of the suit land. This was done, because he reversed the decision of the trial Court on issue No. 3 and found that the lease in favour of Gurdip Singh was not a sham transaction as held by the trial Court, and, therefore, the lessee would remain in possession of the property sold for 20 years. It was after the expiry of that period that the pre-emptors could get actual possession of the land. Against this decision, the present second appeal has been filed by Gurinderjeet Singh.

5. The only question that has been argued before me is regarding issue No. 3. It has been contended by the counsel for the appellant that the finding given by