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Civil Revision Petition No. 258 of 1953, decided on 2411 January, 1955, of the decree and judgment of Faizullah Khan Senior Sub-Judge, Peshawar, dated 3rd August, 1953, whereby the decree passed by Muhammad Inam Khan, Sub-Judge, 2nd Class, Charsadda, dated 26th March, 1953, was set aside and suit was dismissed.
S. 17--- "Transfer" means only sale and not gift of Property to a person having an equal or superior right of pre-emption to that of the plaintiff.
The word " transfer " in section 17 means sale and no other form of conveyance.
A vendee, therefore, by gifting away the property in favour of his father, even if the latter had a superior right of pre emption and the gift was real and genuine could not non suit the plaintiffs.
Bhola Nath and another v. Shiv Singh and. others A I R 1939 All. 253 ref.
-Preamble, marginal notes or head-notes-Whether can be referred to, for discovering intention of legislature even when words of enactment are plain.
No construction so far as possible should be placed on any law, which is unnatural or which leads to injustice, absurdity, manifest anomalies, or which is calculated to do what is prohibited and enjoined in an indirect or circuitous manner. One has to see also the importance which should be attached to the preamble of a Statute, the side or marginal-notes of the sections contained therein, and the headings pre-fixed to its chapters, if there are any, or to the sections.
It cannot be that although the legislature passed into law the preamble, side or the marginal notes of a certain section, or the head-lines attached thereto, as much as it passed the other provisions of law, yet it did not want them to be treated on the same footing as the rest of the law, and in fact wanted them to be looked at only in the case of necessity, for example when the language of the section is obscure and ambiguous.
Staff Sergeant Charles Beginald Zepho Finch v. Mrs. Elizabeth Finch A I R 1943 Lah. 260; Taherally Mohammed ally Kajiji and others v. Chanabasappa Mallappa Warad A I R 1943 Bom. 226 ; dankiram Company v. Chunilal Shriram A I R 1945 Bom. 40 and The Commissioner of Income-tax Bombay v. Ahmedbhai Umerbhai & Co. Bombay A I R 1950 Sup. Court (India) 134 discussed.
Allah Bakhsh, for Petitioners.
Muhammad Khan, for Respondent No. 1.
-By a sale-deed dated 28th of August 19.51, registered on the 30th of August, 1951, one Maroof Shah sold 3 Kanals 19 Marlas 7 Sarsais of land out of 47 Kanals 15 Marlas, bearing Khasra Nos. 462, 458, 459, 523, 494, 507, 509, 521, 471 and 514, situated in Parang Safar Khel, for Rs. 1,000, in favour of Munawar Khan.
On the 28th of August, 1952, Gut Muhammad Khan and Ghulam Muhammad Khan brought a suit for the possession of the above land in the exercise of their right of pre-emption, on the grounds that they were co-sharers -in the Khata, and also that their land was contiguous to that in dispute. They claimed that the property had in fact been sold for Rs. 600, but the parties to the sale-deed in order to deter the prospec tive pre-emptors to pre-empt the sale had fictitiously shown Rs 1,000 as the sale consideration.
Munawar Khan contested the suit. He denied the right of pre-emption of the plaintiffs, and apart from taking some other objections which are not material at this stage of the case, he alleged that recognizing the superior right of pre-emp tion of-his father Dilawar Khan he had gifted the property in his favour by a registered gift deed dated 14th January, 1952. Dilawar Khan was impleaded as a defendant, and he too reiterated the objections taken by his son.
Nine issues, including the issue of relief, were framed in the case, out of which issues Nos. 3 and 4 being the only material issues, are reproduced below:-
3. Whether defendant No. 2 in exercise of the right of pre-emption of defendant No. 3 transferred the suit land to him
4. Wnether the transfer by defendant No. 2 in favour of defendant No. 3 was real and genuine, and in conformity with the laws of pre-emption ; if so with what effect
The learned trial Court found both these issues against the defendants, and having found the other issues -in favour of the plaintiffs granted them a decree for possession of the suit-land on payment of Rs. 652-14-0.
The vendee and his father went up on appeal against this decree to the Court of the Senior Sub-Judge Peshawar, who by his order dated 3rd August, 1953, reversed the finding of the learned trial Court on the above two issues, and dismissed the plaintiffs' suit, but left the parties to bear their own costs.
The plaintiffs have come up in revision to this Court, and the entire controversy at this stage of the case 'centres round the proposition, whether the gift by the vendee of the property in dispute in favour of his father, even if it be in recognition of the latter's superior right of pre-emption, non-suits the plaintiffs or not.
Previously the Punjab Pre-emption Act I of 1913, with some modifications, applied to the North-West Frontier Province. There was no specific section in this Act, which entitled the vendee to defeat the right of pre-emption of a certain person by transferring the property to a person, who had a right of pre-emption in respect of that property either equal or superior to that of the plaintiff. It was, however, generally recognized by the Courts in Punjab as well as in the North-West Frontier Province, that such a transfer non-suited the plaintiff, provided the transfer conformed to the laws of pre-emption and was real and genuine, and was in exercise of the right of pre-emption. Since there was no written law: on the point, the word "transfer" was held by certain Courts to include exchange as well as a gift. This was the view taken by Sir James Almond J. C. in a case Mahbub Shah v. Daud and others (A I R 1939 Pesh. 3). It was held therein that where the purchaser of property transferred it before the institution of a suit for pre-emption to another person having an equal or superior right to the pre-emptor in recognition of that person's right to pre-empt, then the pre-emptor could not succeed, and that there was no difference in principle as to whether such right was enforced out of Court by means of a sale or by means of an exchange. The same view was taken by Harries C. J. and Mahajan J. in case Mohammed Afzal minor v. Ghulam Mohammed alias Gama (A I R 1944 Lah. 463). In this case the property had been gifted by the vendee and it was held that there was no distinction between the case of subse quent purchaser of property from the original vendee, and that of a donee or an heir taking property from the same vendee.
The position so far as this Province is concerned, however, has now considerably changed. A new Act which is called the North-West Frontier Province Pre-emption Act No XIV of 1950, has come into force with effect from the 15th of March, 1950. As the preamble of the new Act would show, it consolidates the entire law of pre-emption so far as this Province is concerned. It is, therefore, this law and this law alone which can be looked at to solve the problems arising out of the pre-emption suits. The Courts for this purpose cannot legitimately have recourse to the law which formerly existed in this Province, or which exists in other Provinces, where the N.-W. F. P. Pre-emption Act or the provisions similar to them do not apply. The new Act contains a section, which is numbered 17, and is as under: --
"No suit for pre-emption shall lie where the purchaser has, prior to the institution of such suit, transferred the property in dispute to a person, having a right of pre-emption equal or superior to that of the plaintiff."
The learned lower Appellate judge has found in his judgment that the word "transfer" used in this section cannot be taken to mean a sale alone. According to him there is no justification to put such a restricted interpretation on the word, even if such a course leads to absurd results. If the word "transfer" is taken in its ordinary dictionary meaning, it would certainly not only include the gift or an exchange of the property, but also the mortgage and the lease for whatever period it may be. It would amount to this, that if a vendee succeeds in securing the services of a certain person, who has an equal or a superior right of pre-emption to that of the plaintiff and leases out the property to him, say for a period of one month, then he can defeat the rights of all pre-emptors for all times to come and in this circuitous manner achieve his ulterior object. The absurdity of the proposition is quite obvious, and does not need to be further dwelt upon. This surely cannot be the intention of the legislature.
There is, however, a heading pre-fixed to section 17 of the North-West Frontier Province Pre-emption Act No. XIV of 1950, which reads as follows :-
"Sale of property to pre=emptor or acquisition of right by original purchaser prior to the suits."
If section 17 is read with this head-note, then it becomes quite clear that the intention of the legislature was that the only transfer, which would non-suit the plaintiff would be the sale and not any other form of the transfer. The learned lower appellate Court has detached the head-note from the rest of the section, and has held that it cannot be looked at all, when the words of the section are perfectly clear.
The learned counsel appearing for the respondent has cited Staff Sergeant Charles Beginald Zepho Finch v. Mrs. Elizabeth Finch (A I R 1943 Lah. 260) Taherally Mohammedally Kajiji and others Chanabasappa Mallappa Warad (A I R 1943 Bom. 226), Jankiram Company v. Chunilal Shriram (A I R 1945 Bom. 40) and The Commissioner of Income-tax Bombay v. Ahmedbhai-Umerbhai & Co. Bombay (A I R 1950 Sup. Court. (India) 134) for holding the view that if the words of a certain enactment are clear and unambiguous, then no question of interpretation arises and the Courts should construe them verbally and in their ordinary and literal meaning, and should not resort to what appears to be the inten tion of the legislature, even if such a construction leads to absurd results. Some of these authorities completely exclude from consideration the preamble of an Act; the side or marginal notes of a certain enactment and the head-notes which sometimes precede a chanter or a section in a certain Statute. The others, however, are of the view that the preamble, the side or the marginal notes, or the headings referred to above may legitimately be used, as a key to the operative part of the law. With utmost respect to the propounders of the above view, we are unable to agree fully with them, view if adopted would be limited and narrow in the extreme, and it might lead to obvious injustice, and defeat the manifest object and the apparent purpose of that particular law. In our view, no sooner the Courts are called upon to apply certain provisions of law to a set of given facts, then the question of the interpretation of the lave arises, and it essentially involves the task of finding out the intention of the legislature in giving that law, and once that intention is discovered to expound the law strictly in accordance therewith. In order to ascertain this intention the Courts must bear in mind certain well recognized principles i. e. when the legislature uses certain words in a certain enactment, it means them to be taken in plain, ordinary and literal sense, and like words used anywhere else it wants the appropriate construction to be placed upon them; having due regard to the context in which they are placed. In order to achieve this purpose it is found necessary to look at the language of the whole section, or even at the whole Act, or the policy of the legislators in enacting that law, then the Courts should not hesitate in doing so. Again, the law presumes the legislative bodies to consist of able persons capable of giving good law after due consideration and deliberation to their country and the Nation, meaning thereby that no construction so far as possible should be placed on any law, which is unnatural or which leads to injustice, absurdity, manifest anomalies, or which is calculated to do what is prohibited and enjoined in an indirect or circuitous manner. In this connection then s one has to see also the importance which should he attached to the preamble of a Statute, the side or marginal-notes of the sections contained therein, and the headings pre-fixed to its chapters, if there are any, or to the sections. That, in our view, depends to a very great extent upon whether the preamble, the side or the marginal notes, or the head-notes form the part of the enactment or not. If they do, then they must have the same importance as any other part of the Statute, and the intention of the legislature shall have to be gathered by reading the whole thing together. In such a case, it is very difficult for us to conceive as to how can it be said that although the legislature passed into law the preamble, side or the marginal notes of a certain section, or the head lines attached thereto, as much as it passed the others provisions of law, yet it did not want them to be treated on the same footing as the rest of the law, and in fact wanted them to be looked at only in the case of necessity, for example when the language of the section is obscure and ambiguous. If, on the other hand, the pre-emble the marginal or the side note, or the head-note was not passed by the legislature but was added later on, then they obviously cannot have any legal significance whatsoever, and should be completely ignored.
We are consequently of the opinion that the head-note attached to section 17 of the North-West Frontier Province Pre-emption Act No. XIV of 1950, cannot be detached from the rest of the section, and it should be read as a part of it. The Official Gazette in which this. Act was published, shows that it was passed by the legislature at the same time as it passed the rest of the law, without making any distinction between the two. It, therefore, follows that it is only the sale by a vendee in favour of a person having -an equal or superior right of pre-emption, which can non-suit the plaintiff. The gift, exchange, or any other form of transfer cannot defeat the pre-emptor's right in any way.
It may with advantage be mentioned here that it appears that the law officers of the North-West Frontier Province copied section 20 of the Agra Pre-emption Act verbatim and numbered it as section 17 of the North West Frontier Province Pre-emption Act of 1950.
The meaning of the word "transfer" was considered by Their Lordships of the Allahabad High Court in Bhola Nath and another v Shiv Singh and others (A I R 1939 All. 253), and it was held that the word "transfer" meant sale and no other form of conveyance.
The result of the above discussion, thus is that the vendee by gifting away the property in favour of his father, even if the latter had a superior right of pre-emption and the gift was real and genuine one, could not non-suit the plaintiffs. The plaintiffs' revision petition is, therefore, accepted, the judgment and decree of the lower appellate Court set aside, and those of the learned trial. Court restored, but in view of the fact that the question involved was a difficult one, we leave the parties to bear their own costs throughout.
A. H. Petition accepted.
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