Find a Lawyer

Civil Petition for Special Leave to Appeal No. 432 of 1980, decided on 29th April, 1980.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 30‑3‑1980 in R. S. A. No. 763 of 1965).

‑‑‑S. 21‑‑Suit for pre‑emption‑‑Waiver of right‑‑Estoppel‑‑Prospective pre‑emptor having attested sale‑deed, estopped to file suit for pre‑emption‑‑Right of pre‑emption once waived, cannot be asserted afterwards either as a plaintiff or as defendant.

Mustaqim v. Sher Bahadur P L D 1962 (W.P.) Pesh. 14; Lal Khan v. Allah Ditta and others P L D 1950 Lah. 196; Arjmand Khan v.

Shankar Lal and others I L R 6 Lah. 243; Nabbi Bakhsh v. Kaka Singh 1878 P R 42 and Ghannum Ram v . Jutta Ram and others A I R 1925 Lah. 442 ref.

M. Aftab Iqbal Chaudhree with Hakim Muhammad Sardar Khan, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing. 29th April, 1980.

The petitioner who has been unsuccessful as a plaintiff in a pre‑emption suit seeks leave to appeal against the judgment and decree of the Lahore High Court, dated 30‑3‑1980, whereby the rival pre‑emptor's second appeal was allowed accepting his claim to pre‑empt the sale.

2. Land measuring 62 Kanals 2 Marlas was sold by Allah Din and Muhammad Din in favour of Inayatullah for Rs. 30,000 by a registered sale‑deed on 17‑2‑1974. The petitioner and the rival pre‑emptor Ghulam Muhammad predecessor‑in‑interest of respondents 5 to 15, filed suits to pre‑empt the sale. The usual consolidation of the suits took place. The petitioner's right to pre‑empt the sale was held by the trial Court to be superior to the vendee as well as the rival pre‑emptor Ghulam Muhammad. Nevertheless, the petitioner was non‑suited and the rival pre‑emptor, was preferred on the ground that the petitioner had waived his right of pre‑emption by participating in the sale and was on that account estopped. The trial Court on this finding decreed the claim of Ghulam Muhammad and dismissed the suit of the petitioner. On appeal the District Judge on 28‑6‑1965 reversed this finding on the ground that the petitioner had at the most attested the sale‑deed in question as a marginal witness and it was not proved that he had done so fully aware of the contents of the sale‑deed and while conscious of his own right in the matter. It was also held by the District Judge that the waiver in the case could at best be pleaded in favour o the person who was the vendee and it could not be utilized in any contest by Ghulam Muhammad because it was not in his favour that the right had been waived. This finding of the District Judge was fully examined in the second appeal by the Lahore High Court in the following words:

"The learned counsel for the appellant has read over the statement of Hafiz Ullah (D. W.2) Waseeqa Nawees and Fateh Muhammad Lambarder (D. W.3) to show that the contents of the documents were read over to Muhammad Bakhsh and that he had put his thumb‑impression after getting himself acquainted therewith. The inference drawn by the learned trial Court from the refusal of Muhammad Bakhsh that he had never signed the deed has already been quoted above. It has also been noted above that the learned District Judge did not advert to this aspect of the matter and the findings of the learned trial Court were not revised. For the purposes of this judgment I would assume that the denial of Muhammad Bakhsh was intentional in order to avoid the consequences of the knowledge of the transaction and the effect of attesting the same which in some circumstances may amount to waiver and the pre‑emptor estopped to file a suit to exercise his right."

The conclusion drawn after examining the facts and law in the light of evidence on the record by the learned Judge was as follows:

"My conclusion on the basis of the judgments quoted above is that in cases where a prospective pre‑emptor signs the sale‑deed as an attesting witness and the contents are read over to him, or something is brought on record to show that he knew the contents thereof or denies his attestation only to avoid the consequences of the knowledge thereof, it would cease to be a simple case of attestation and such a person shall be deemed to have waived his right and thus estopped to file suit for pre‑emption. "

3. The learned counsel for the petitioner contends that even if the petitioner be taken to have attested as a marginal witness the sale‑deed in favour of the vendee he could have done so as a representative of the vendor and in that case he would not be estopped as held in Mustaqim v. Sher Bahadur P L D 1962 (W.P.) Pesh. 14. Additionally, it is said that waiver or estoppel against a person even in the claim of pre‑emption follows the general principle as contained in section 115 of the Evidence Act and no different principle of estoppel is applicable. In the light of decision in Lai Khan v. Allah Ditta and others P L D 1950 Lah. 196 it is contended that at best the petitioner could be said to have waived his right against the vendee but not against the rival pre‑emptor to whom no representation whatsoever was made and no waiver had in fact taken place.

4. The question whether the petitioner was an attesting witness of the sale‑deed and actively participated in it or was acting as an agent of the vendor is a question of fact. In the case referred to by the learned counsel for the petitioner (Mustaqim v. Sher Bahadur) it was held as a fact that the pre‑emptor was in respect of the sale acting as a representative of the vendor and in that capacity and character he could not have waived his right as a pre‑emptor nor could he have from that position asserted it. In the present case, there is no such averment or claim that the petitioner represented any character other than his own. He attested the sale‑deed. He denied having thumb- impressed the document which after thorough inquiry was held to have been attested by him. There was evidence on the record to show that he was wade fully aware of the contents of the deed. In such a situation the finding of the High Court and the trial Court that not only was he an attesting witness to the deed but was fully aware of the contents of the deed and actively participating in the transaction cannot be open to any exception.

5. In making the claim that the waiver in a pre‑emption suit if at all could be against the vendee and not against the rival pre‑emptor the learned counsel for the petitioner omits to take note of the consistent view taken by the Lahore High Court on this question based on provisions of Punjab Pre‑emption Act. In the Full Bench decision in Arjmand Khan v. Shankar Lai and others I L R 6 Lah. 243 this question was examined in depth and it was held that "a person who has once waived his right of pre‑emption is debarred from asserting it afterwrds and that it is immaterial whether he occupies the position of a plaintiff or that of a defendant". In the case of Nabbi Bakhsh v. Kaka Singh 1878 Punjab Record 42 an Identical question arose. It was held therein that a pre‑emptor who has waived his right in respect of a sale cannot say, "I waive my right in favour of a prticular person and reserve it as against all others. He must make his election and accept or reject the offer absolutely and without reservation once for all; and if he does not accept the offer, or if, as in the present case, he places himself by dispensing with an offer or acquiescing in a sale, in such a position that he cannot enforce his right against the purchaser under the original sale, he cannot assert it against one, who, by legal proceedings gets the ultimate benefit of the same sale." In the case of Ghannum Ram v . Jutta Ram and others A I R 1925 Lah. 442 the Full Bench decision in Arjmand's case was followed that" a person who has once waived his right of pre‑emption is debarred from asserting it afterwards either as a plaintiff or defendant".

6. It is clear that the judgment of the Lahore High Court is in conformity with the principle governing waiver in a pre‑emption case. This petition has no merit and it is dismissed.

M . I . Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.