Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
P L D 1981
Supreme Court 51
Present : Karam Elahee Chauhan, Muhammad Afzal Zullah and Naslm Hasan Shah, JJ.
MANGHTA KHAN AND others-Appellants ,,versus
Mst. HAMIDA BEGUM AND others-- Respondents
Civil Appeal No. 224 of 1976, heard on lst October, 1980.
(On appeal from judgment dated 14-5-1975 of the Lahore High Court in R.F.A. No. 17 of 1974).
(a) Punjab Preemption Act (I of 1913)--
-- S. 8(2) and Land Reforms Regulation, 1959 [M. L. R. 64], para. 25 read with Notification No. 40-45-68/1031-MR-IV, dated 18-4-1969 Pre-emption - Divisible transaction-Sale deed showing vendor having agreed to accept sale price from all vendees only in proportion to share of land sold to each one of them Acceptance of a certain amount by vendor at time of execution of sale deed not shown to have not been contributed by all vendees in accordance with their shares-Sale deed on other hand showing such amount having been accepted by vendor as having been contributed by all vendees in accordance with their shares-Essential conditions for treating transac tion as divisible, held, satisfied - hence vendees entitled to exemption under S. 8(2), Punjab Pre-emption Act, 1913.
Abdullah v. Abdul Karim P L D 1968 S C 140 and Maghi v. Narain and others 1914 Pb. Rec. 18 ref.
(b) Punjab Pre-emption Act (I of 1913)-
S. 8(2) and Land Reforms Regulation, 1959 [M. L. R. 64], para. 25 read with Notification No. 40-45-68/1031-MR.-IV dated 18-4-1969-Pre emption-Transactions of sale not indivisible and share of any one of vendees not alleged to exceed limit of 50 acres permissible under condi tions of exemption against pre-emption as allowed by Government under S. 8(2) of Punjab Pre-emption Act, 1913-Each one of vendees, held, could, in his own right, defend his purchase against suit for pre emption.
(c) Punjab Pre-emption Act (I of 1913)-
-------------- S.8(2) read with Notification No. 40-45-68/1031-MR-IV dated 18-0-1969-Pre-emption-Exemption-Issuance of certificate under Notification-Held an essential condition for obtaining exemption against pre-emptions.
(d) Punjab Pre-emption Act (I of 1913)--
< [if supportLists]>n S. 8(2) read with Land Reforms Regulation, 1959 [M. L. R. 64], para. 25-Pre-emption-Exemption-Civil Court while deciding a pre-emption suit-Not required to test validity of sale on touchstone of para. 25 of M. L. R. 64 as long as sale sought to be pre-empted not disputed-No provision of Regulation barring vendees from enjoyment of holding according to their .respective shares specified in sale-deed as co-sharers-Nor para. 25 of Regulation barring sale of entire holding through several sales, all taking place at one and same tune, leaving nothing with vendor---Sale deed in question in circumstances, held, to be considered to have comprised of several sale transactions for purpose of exemption under S. 8(2) of Act of 1913 and para. 25 of Regulation could .not be treated as a bar to claim of exemption by vendees.
< [if supportLists]>n
A. K. Brohi, Advocate Supreme Court and Ch. Fazle Hussain, Advocate- on-Record for Appellants.
Ift1khar Ahmad Dar, Advocate Supreme Court and Hamid Aslam Qureshi, Advocate-on-Record for Respondents Nos. I to 4.
Dates of hearing : 1st October, 1980.
. MUHAMMAD AFZAL ZULLAH, J.-This appeal through special leave is directed against judgment dated 14-5-1975 of the Lahore High Court in a Regular. First Appeal, whereby the decree in a pre-emption suit passed in favour of the respondents was affirmed.
The appellants. (defendants) had purchased 216 acres of land from Mst. Saeeda Begum, respondent No. 5 .on 2-5-1970. Respondents 1 to 4 filed a suit for pre-emption on various grounds of preference over the vendees who admittedly were strangers to the family of the vendor as also to the estate. The appellant's plea was that their lands having been acquired for the Mangla Dam Scheme, the Government for purpose of their rehabilitation provided to them exemption against pre-emption under section 8(2) of the Punjab Pre emption Act through a duly published notification ; whereunder eligibility certificates were issued in their favour. The exemption extended only to the maximum of fifty acres (canal irrigation) of land purchased by each vendee. The learned trial Court rejected their plea and decreed the suit on the finding that according to the deed of sale it was an indivisible transaction in which purchase of more than fifty acres was involved, therefore, the appellants were not entitled to the exemption. On first appeal in the High Court, the learned Judges of the Division Bench affirmed this finding and also held that the sale by the vendor, in order to be in conformity with para. 25 of Martial Law Regulation No. 64 (1959) could not be valid unless it was treated as one transaction ; and because some of the vendees did not hold exemption certi ficates, therefore, without saying to in so many words, they throughout that the principle of sinker would apply and the plaintiffs would succeed even against those vendees who held such certificates. Accordingly, the vendees' appeal was dismissed. Leave to appeal was granted to consider both the questions: (I) whether it was indivisible transaction in accordance with the rule laid down in the case of Abdudah v. Abdul Karim P.LD 1968SC140
; and (ii) whether para. 25 of Martial Law Regulation No. 64 could operate in such a way in a pre emption suit so as to nullify the exemption, under section .8(2,) of the Pre emption Act, granted under the public policy of rehabilitation of the evictees of land acquired for public purpose.
Mr. A. K. Brohi has drawn our attention to the specification in the regist ered sale deed of the share of land purchased by each appellant as also the stipulation therein regarding the contribution of the, purchase price in accord ance with that share. The words used are: The test for treating sale transaction as divi sible for purpose of pre-emption, approved. by ;this Court in the case of Abdullah is that the shares of all the vendees should be specified and further that all of them should have made contribution towards the price propor tionate to the purchase by each one of them. The approach in this behalf in AM& v. Narain and others 1914 Pb. Rec. 18,was approved. Although in the last mentioned case of Maghi it was held that the sale involved therein was indivisi ble, yet it was also held that the result would have been different if there was "specification not only of the shares to be taken by vendees, but also of the amounts to be respectively paid by the latter." This could be achieved, it was further observed (amongst other methods) by either effecting the sales by different deeds or taking care in the same deed to clarify that it "was not of an indivisible character (e. g. one transaction, by specifying that the purchase money was separately payable by each vendee).
The leared Judges in the High Court referred to the case of Maghi in another connection, but they failed to notice the above-referred aspect thereof. In the present case, the deed shows that the vendor had agreed to accept the sale price from all the vendees only in proportion to the share of the land sold to each one of then. It cannot be said that she had no intention of act ing upon that part of the deed which related to this aspect. This plea was raised before the High Court, but was rejected on the ground that according to the sale deed the vendor. had accepted Rs. 8,200 in lump sum on behalf of all the vendees at the time of the execution of the deed, and although there was provision for acceptance of the remaining sale price amounting to over four and a half lacs (only when to be contributed by all the vendees in accordance with their shares), the receipt of the said amount of Rs. 8,200 in lump sum would negative the plea of the divisibility of the transaction. It appears that the deed was not properly read. There is nothing in it to show that the amount of Rs. 8,200 was not contributed by all the vendees in accordance with their shares. On the contrary, its reading as a whole shows that this amount also was accepted by the vendor as having bee contributed by all the vendees in accordance with their shares. Thus, the deed was not only incorrectly interpreted, but there was also misreading thereof. Keeping in view the test laid down in the case of Abdullah and the approved observations made in that of Maghi, we hold that in the present case the essential conditions for treating a transaction as divisible were satisfied.
It has not been the case of the respondents that if the transaction is treated as divisible, the share of any of the vendees would exceed the limit of fifty acres applicable to the appellants. Therefore, each one of them could in his own right defend his .purchase against the suit for pre-emption provided he was a certificate-holder, in accordance with the notification issued under section 8(2) of the Pre-emption Act. Neither the principle of sinke nor the bar relating to the limit of fifty acres would deprive the appellants o this plea.
For the purpose of examination as to whether all the appellant's could avail of the said plea, it is necessary to refer to the notification dated 18th April, 1969, issued under section 8(2) of the Punjab Pre-emption Act. It reads as under :-
"No. 40-45-68/1031 MR-IV.-In exercise of the powers conferred by subsection (2) of section 8 of the Punjab Pre-emption Act, 1913, the Board of Revenue, West Pakistan is pleased to declare that for a further period of three years from the date of expiry of the Board of Revenue Notification No. 5668-65/3465-LR-V, dated the 15th September, 1965, no right of pre-emption shall exist with respect to the sale of agricul tural land not exceeding 50 acres in a canal irrigated area or 100 acres in non-irrigated area and other immovable property not exceeding the market value of Rs. 10,000 (rupees ten thousand only), in favour of a person displaced from the Azad Kashmir in consequence of the construction of Mangla Dam and certified to be so displaced by the Commissioner,' Mangla Dam Affairs, Azad Government of the State of Jammu and Kashmir.
Nothing in this notification shall be deemed to effect decrees obtained by pre-emption prior to the date of its issue."
On 4-5-1972 another notification was issued which provided that the exemption would continue for a period of another year after the expiry of the period specified in the notification of 1969.
Six of the appellants namely, Muhammad Nazir, Abdul Hamid, Aziz Khan, Sardar Khan, Ali Asghar and Muhammad Bashir (Appellants 6 to 8, 11, 12 and 16 respectively) did not produce any certificate issued under the notification. It has been urged on behalf of the said six appellants that even though they were unable to produce the required certificates, yet they had, otherwise, established through evidence, that they were displaced on account of the construction of the Mangla Dam. According to their learned counsel existence of a certificate issued under the notification was not an. Essential condition for seeking the exemption. He contended that the requirement of a certificate related only to the mode of the proof as to whether a person was or was not displaced from Azad Kashmir in consequence of the construction of Mangla Darn. If, as argued, it was otherwise established that person was so displaced, the certificate would become redundant. We do not agree with the learned counsel. The issuance of the certificate was one of the essential conditions for obtaining the exemption. Inquiry in this behalf, if any, was to be made by the Commissioner nominated under the notifi cation itself.
Learned counsel then contended that the father of at least two of the aforementioned six appellants was a certificate holder. That being so, those two appellants could be treated as displaced persons alongwith their father. It would have been a different matter if the father having died the sons were claiming as right holders. There is no such plea or finding in this behalf. Accordingly, it has to be held that the said six appellants, without any exception, could not avail of the plea of exemption. The suit against them has rightly been decreed. The remaining appellants, however, have succeeded in establishing that plea. As already held, the transaction being divisible, they were within their right to defend their respective purchases by raising the plea of exemption.
.The other argument which prevailed with the learned Judges in the High Court relates to the effect of para. 25 of the Martial Law Regulation No. 64 (1959). It reads as follows:-
"25. Restriction on alienations of holdings.-(l) No person owning more than the area of an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area below the limit of an economic holding Providing that such a person may alienate his entire holding.
(2) No person owning an economic holding shall be allowed to alienate by sal.9, mortgage, gift or otherwise any portion of his holding;
Provided that such a person may alienate his entire holding.
(3) No person owning more than the area, of a subsistance holding but less than an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area less than the area of sub sistence holding;
Provided that such a person may alienate his entire holding.
(4) No person owning an area equal to or less than a subsistence holding shall be allowed to alienate by sale, mortgage, gift or otherwise any part of his holding;
Provided that he may alienate his entire holding.
(5) Any alienation made in contravention -of the provisions of this para graph shall be void."
The respondent/pre-emptors' case was that the vendor could not have alienated the holding by dividing and selling it in such parcels which would reduce the remaining land to a level below the economic holding. It was for this reason that in order to escape the mischief of para. 25, she had to resort to a single indivisible transaction of sale. whereunder she alienated her entire )folding. And further that if, on the other hand, the entire transaction is treated as consisting of sixteen transactions, each unit of land sold would be less than the economic holding and the sale would by virtue of para. 25, be void.
Mr. Brohi has, on the other hand, contended that there is no justification for importing the bar contained in para. 25 for purpose of deciding the right to pre-empt a sale. If the vendor satisfied the requirements of para. 25 and passed the title to the vendees by transferring to them her entire holding, this would not adversely affect the position of the vendees, each one of whom purchased a specified share in the entire joint holding by making propor tionate contribution to the price.
There is considerable force in this argument. The civil Court while decid ing a pre-emption suit is not required to test the validity of the sale on the touchstone of para. 25 of M L. R. 64 so long as it was not disputed that there was a sale' which the plaintiffs sought to pre-empt. If there was no 'sale' then the suit for pre-emption itself might not be competent. Even otherwise, there is nothing in the Law Reforms Regulation at least no provi sion has been relied upon, to show that the vendees could not have enjoyed the holding according to their respective shares specified in the deed, as co -sharers. Nor can it be said that when the entire holding was sold through E sixteen sales, all taking place at one and the same time, leaving nothing with the vendor, para. 25 of M. L. R. 64 would still be a bar to such sales. And in any case, all those sales would be valid after the exclusion of which the remaining holding would still be enough to save those transactions from being rendered void. Thus, from every point of view, the sale deed in question could and should have been considered to have comprised of sixteen sale transactions for the purpose of exemption under section 8(2) of the
Pre-emption Act. Paragraph 25 of M. L. R. 64, therefore, could not be treated as a bar to the
claim of exemption by the vendees.
In the light of what has been held above with regard to the failure of some of the appellants to produce the certificates under the notification providing for the exemption, we dismiss the appeal insofar as it relates to Muhammad Nazir, Abdul Hamid, Aziz Khan, Sardar Khan, Ali Asghar and Muhammad Bashir (appellants 6 to 8, 11, 12 and 16 respectively). The appeal filed by the remaining defendant-vendees, in view of our findings on the ques tions of the divisibility of the transaction and the effect of para. 25 M. L. R. 64 (1959), is allowed. The decree passed against them is set aside. The respondents' suit to that extent stands dismissed. There shall be no order as to costs.
s. A. H. Order accordingly.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer