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Regular Second Appeal No. 66 of 1966, heard on 2nd April, 1980.
----Ss. 54 & 118-- Sale" ‑ "Exchange" ‑ Definitions‑Distinction between an alienation by way of sale and a transfer by way of exchange‑Held, lies in nature of consideration for such transfer -Allegation in pre‑emption suit that a transfer which purports to be an exchange is, in fact, a sale‑Duty of Court to determine real intention of parties as opposed to their apparent intention‑Punjab Pre‑emption Act (I of 1913), S. 4.‑[Words and phrases].
It is manifest from the definitions that an exchange as defined in sec tion 118 of Transfer of Property Act, 1882 is similar to a sale in so far as it is a mutual transfer of ownership of one thing for the ownership of another, but it differs from a sale in that neither of the things transferred is the price of the other. Thus the distinction between an alienation by way of sale and a transfer by way of exchange lies in the nature of the consideration for such transfer. If the consideration is the price of the property transferred it is a sale, if it is property, (not being price) then it is an exchange. Under section 4 of the Punjab Pre‑emption Act, 1913, the right of pre‑emption arises in respect of such land which may be a subject‑matter of sale or of foreclosure of right to redeem such property and nothing in this section prevents a Court from holding that a transfer purporting to be then a sale is in fact a sale. Thus whenever in a suit for pre‑emption it is alleged that a transfer which purports in the face of it to be an exchange is in fact a sale, it is the duty of a Court to determine what the real intention of the parties was as opposed to their apparent intention.
---S. 118‑"Exchange"‑Strict equation between values of properties exchanged Held not a sine qua non for a valid transfer by way of exchange.
---S. 4 read with Transfer of Property Act (IV of 1882), Ss. 54 & I IS‑Right of pre‑emption‑Pre‑emption suit‑Effecting an exchange for purpose of evading right of pre‑emption‑Held, not illegal Pre‑emptor, however, can show that a transaction is really one of sale but fraudulently made to appear as one of exchange or mortgage or gift.
The parties may change their intentions and may very well enter into a bona fide transaction of exchange instead of sale as a device to defeat the right of pre‑emption. Under the law it is open to the parties to effectuate their common intention in a manner which would preclude pre‑emptors from interfering with their, wishes. Thus there is nothing illegal in effecting an exchange for the purpose of evading the right of pre‑emption. However, it is open to a pre‑emptor to show that a transaction is really one of sale and is fraudulently made to appear as one of exchange or mortgage or gift.
‑‑ Ss. 54 & 118‑"Exchange"‑Alleged vendor not receiving any sale consideration for suit land and land acquired by him in exchange not subsequently sold but retained by him‑.Held, such circumstances clearly establish that he had a strong desire to acquire land for himself which he purported to have taken in exchange of suit land‑Such trans action, held, clearly an exchange.
---S. 100‑Second appeal‑Finding of fact‑Conclusion arrived at by lower Appellate Court found to be arbitrary, without basis and illegal‑Held, such finding of fact can be disturbed, in second appeal. [Finding of fact‑Second appeal].
Allah Dad v. Bagh Ali P L D 1968 Lah. 428; Nadir Shah v. Lal Shah P L D 1954 Lah, 447; Raja Mohammad Afzal Khan v. Ch. Manzoor Elahi and 6 others P L D 1975 Lah. 1276; Mst. Fatima v. Khuda Bakhsh and others P L D 1959 Lah. 826 and Mst. Bibi Jan v. Habib Khan and another P L D 1975 S C 295 ref.
Syed Faqir Hussain for Appellants.
Shamim Abbas Bakhari for Respondent.
Date of hearing : 2nd April, 1980.
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