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Civil Appeal No. 162/112 of 1985, decided on 11^th January 1962.

Ss. 12, 16 & 19-Pre-emption suit-Vendee, having pre emptive right equal to that of pre-emptor, associating with himself, in a joint purchase a stranger---Does not lose his right irrevocably--- Such vendee during pendency of suit may remove disability and improve his status by purchasing the stranger's share.

In a suit for pre-emption under the North-West Frontier Province Pre-emption Act, 1950, it was urged that by joining strangers in a joint purchase, a vendee, who had equal right of pre-emption with the plaintiff-pre-emptor, loses his right irrevoc ably and he by the removal of the defect as a result of the purchase of the share of the strangers, cannot regain the status he had lost by virtue of section 19 of the Act:

Held, that if the vendee, who had equal right of pre-emption with the plaintiff-pre-emptor, as a result of the original sale transac tion lose his right on account of the principle of sinker as provided in section 19 of the North-West Frontier Province Pre emption Act, 1950, then that lots cannot be considered to be permanent and irremediable. If the vendee, during the pendency of the pre-emption suit purchases the strangers' share at any stage prior to the final adjudication of the case the pre-emptor cannot succeed. By purchasing the share of the stranger the vendee not only removes the disability provided in section 19 of the Act but also improves his status which is permissible under section 16 of the Act.

Badri Pande v. Parostam Singh and others A I Re 1928 All. 697 ; Qudrat-un-Nissa Btbi v. Abdul Rashid and another A I R 1926 All. 661 and Hans Nath and others v. Ragho Prasad Singh A I R 1932 P C 57 ref.

Ali Muhammad and another v. Muhammad Din and others A I R 1941 Lah. 444 rel.

Ss. 16 to 19-Analogous to Ss. 19 to 24, Agra Pre-emption Act, 1922.

Abdul Latif Khan and Kazi Abdul Wahab Khan for Appellant,

Dost Muhanrmad for Respondents.

Dates of hearing :10th and 11th January 1962.

Jamroz Khan (defendant No. 1) was the owner of agricultural land, Khasra No. 119(./724-725/4 measuring 23 Kanals 10 Marlas, and K6asra No. 747/2, rreasuricg 6 Marlas, situate in the area of village Tulkar, Tehsil and District Mardan. By a sale-deed executed on the 6th of July 1956, and registered on the 27th of August 1956, he sold 8 Kanals 14 Marlas out of Khasra No. 1196/724-725/4, and whole Khasra No. 747/2, jointly to Rustam (defendant No. 2) and Hussain Khan (defendant No. 3), sons of Rustam Khan, seven Kanals in equal shares, Saifuddin (defendant No. 4), son of Alamdin, one Kanal, and Rafiuddin (defendant No. 5), son of Faqir Muhammad, one Kanal. It is mentioned in the sale-deed in general terms that the vendees will be liable to pay to the vendor the proportionate price of the area each of them had purchased but had not specified the amount which each vendee had to pay. Before the Sub-Registrar at the time of the registration of the sale-deed Rustam Khan (defendant 2) alone was present and paid the entire sale price of Rs. 7,000 in lump-sum to defendant No. 1 vendor. Originally, Gut Shah plaintiff pre-emptor and Jamroz vendor-defendant and others were joint owners of field Nos. 1196/724-725 & 747 recorded in Khata No. 148 of Jamabandi for the year 1954-55, but in a partition, which was given effect to in the revenue record, by attestation of mutation No. 1611 on 20-4-1956, Jamroz Khan vendor was allotted the portion out of which he had sold the suit land to the vendees.

2. Gul Shah, son of Adil Shah, a co-villager of the defendants, and a co-sharer with the vendor previous to the partition, pre-empted the sale by instituting a suit on the 24th of July 1957 in the Court of the Senior Sub-Judge, Mardan, which in due course was sent to the Court of Sub-Judge First Class for trial and decision. He based his claim of pre-emption on the first three qualifications given in section 12 of the North-West Frontier Province Pre-emption Act, 1950, e.g., his being a co sharer, an owner of contiguous land, and also a participator in immunities and appendages. In the plaint he alleged that none of the vendees possessed any one of such qualifications. He also assailed the ostensible price recorded in the sale-deed on the ground that, although the payment of amount of Rs. 7,000 was shown in the endorsement of the Sub-Registrar made at the time of the registration of the sale-deed, but the amount of Rs. 5,000 was refunded to the vendees subsequently, and the price of the land was really fixed as Rs. 2,000. The vendees defendants resisted the claim on a number of grounds, which gave rise to the following issues :-

(1) Whether the plaintiff has got superior right of pre emption against the vendees

(2) Whether defendant Nos. 4 and 5 have sold their share in the property in favour of defendants Nos. 2 and 3, if so, with what effect

(3) Whether the sum of Rs. 7,000 was fixed in good faith or paid as the sale consideration of the suit property

(4) What is the market value

(5) Relief.

3. After recording evidence of the parties, the learned trial Court found that Rustam and Hussain Khan (defendants 2 and 3) bad equal pre-emptive qualifications with Gut Shah plaintiff, being the owners of contiguous lands and the plaintiff possessed po other qualifications as alleged by hint, but Saifuddin and Rafiuddin (defendants Nos. 4 and 5) were even not owners of contiguous lands. He also held that defendants Nos. 4 and 5 had sold their share which they had purchased in the land in favour of defendants Nos. 2 and 3 before the decree was passed ; but as defendants Nos. 2 and 3 bad joined defendants Nos. 4 and 5, the strangers in the sale, which was indivisible and joint transaction, therefore, they (defendants Nos. 2 and 3) too had lost the preempting right by virtue of the doctrine of sinker, and the plaintiff possessed, therefore, preferential pre-emptive right against all of them. On issues Nos. 3 and 4 he found that the amount of Rs. 7,000 was paid to the vendor at the time of the registration of the sale-deed, and it was not proved, that out of this amount Rs. 5,000 were refunded subsequently to the vendees after the registration of the sale-deed. On these findings, the learned trial Judge granted the plaintiff a decree for possession by pre-emption of the suit land on payment of Rs. 7,000, by his judgment dated the 28th of February 1958. He had left the parties to bear their own costs.

4. Dissatisfied with the judgment and decree of the learned trial Court, Rustam and Hussain Khan (defendants Nos. 2 and 3) preferred appeal in the Court of the Senior Sub-Judge, Mardan. The learned Senior Sub-Judge reversed the findings of the learned trial Judge on issues Nos. 1 and 2 on the ground that the sale in favour of the strangers was of the specified share of the land, and it was also mentioned in the sale-deed itself, that each one of the vendees would pay the sale price in proportion to the share purchased by them, and since the transac tion was divisible and distinct, therefore, the doctrine of sinker was not applicable. He further held that if it was found that the transaction as indivisible and joint, even then the purchase of the shares of the strangers by defendants Nos. 2 and 3 had remedied the loss of the right of pre-emption which had the effect of regaining the lost status, and therefore, the plaintiff cannot be benefited by the doctrine of sinker when his status and that of defendants Nos. 2 and 3 was equal at the time of the decree. On these findings, the learned Senior Sub-Judge accepted the appeal and dismissed the suit by his order dated the 13th of November 1958.

5. Not satisfied with the judgment and decree of the learned Senior Sub-Judge, the plaintiff has preferred further appeal to this Court. It is admitted by counsel for the parties that Gul Shah plaintiff and Rustam and Hussain Khan (defendants 2 and 3) had equal right of pre-emption with regard to field Nos. 1196/724 725/4, as they had agricultural land situate contiguous to this land. The contention of the Tear-ed counsel for the appellant is, that Saifuddin and Rafiuddin who had no pre-emptive rights, and who were strangers, were joined by Rustam and Hussain Khan in the sale transaction which was indivisible and joint, therefore, they had lost the right by virtue of the provisions of section 19 of the North West Frontier Province Pre-emption Act of 1950, which expressly provides for, known generally, as the doctrine of sinker. It is conceded by the respondents' counsel that according to a number of authorities of the Lahore High Court (cited also in this case at the bar), the sale by the vendor in favour of the four vendees named above, was joint and indivisible, as although the shares of the land sold to each of them were specified in the sale deed, but the consideration was not separately paid by each of them. He has resisted the contention that by the purchase of the shares of the strangers' the vendees, who had otherwise equal pre emptive right to the pre-emptor-plaintiff, had not regained their lost right. It is, therefore, to be seen as to what is the effect of the sale of the share of the land purchased by the stangers' (defendants Nos. 4 and 5) in favour of defendants Nos. 2 and 3 which had taken place by a registered sale-deed dated the 28th of September 1957, when the pre-emption suit was pending on the rights of the plaintiffs.

6. Before I proceed further, I may mention that it is con ceded by the appellant's counsel that the plaintiff-appellant did not own any land contiguous to field No, 747/2, and therefore, he had no preferential right of pre-emption with respect to six Marlas of land bearing Khasra No. 747/2 in suit. He has only pressed his claim with regard to Khasra Nos. 1196/724-725/4 on the allegation that Gul Shah owned field Nos. 1196/724-725/3 which was contiguous to the land in dispute and defendants Nos. 2 and 3 also owned some land contiguous to this Khasra number, but they have lost that right by joining defendants Nos. 4 and 5, two strangers fn the sale transaction, and by the purchase of the shares of defendants Nos. 4 and 5, defendants Nos. 2 and 3 could not recover their old status under the law.

7. The North-West Frontier Province Pre-emption Act o1 1950 gives qualifications of the persons entitled to pre-emption, in section 12, which is as follows :-

"The right of pre-emption in respect of agricultural land, village immovable property and urban immovable property shall vest :-

firstly, in the co-sharers in such land or property, if any ; secondly, in a participator in immunities and appendages such as a right of way or a right to discharge water ;

thirdly, in owners of contiguous property, if any ; and fourthly, in a landlord when the sale is by an occupancy tenant of his right in tenancy."

8. In section 19 below the heading,

"joint purchase by persons one of whom is liable to pre emption",

the following has been enacted :-

"Where the purchaser having equal or superior right to the pre-emptor joins with him a person having no right or having right inferior to the pre-emptor, the purchaser loses his preferential right."

9. Section 16, under the heading,

"effect of loss of right by pre-emptor prior to decree", enacts as follows :-

"No decree for pre-emption shall be passed in favour of any person unless he has a subsisting right of pre-emption at the 11me of the decree, but where a decree for pre-emption has been passed in favour of the plaintiff, whether by a Court of first instance or of appeal, the right of such plaintiff, shall not be affected by any transfer or loss of his interest occurring after the date of such decree."

10. From the above, it is clear that the qualifications of the persons who were entitled to pre-empt were given in section 12. It is laid down in section 19 that the persons having the pre emptive qualifications lose their preferential right when they join with them persons having no right or having right inferior to the pre-emptor, as vendees in the sale. The effect of the loss of the right of preemption prior to the decree was provided in section 16. Counsel for the appellant had urged that by joining strangers a vendee, who had equal right of pre-emption with the plain tiff-pre-emptor irrevocably loses his right, and he by the removal of the defect as a result of the purchase of the share of the strangers, cannot regain the status he had lost by virtue of section 19 of the Act. In my view, this contention is not sound. Under section 16 of the Act, the Courts have to see the status of the parties at the time of the decree. If the vendees, who had equal right of pre-emption with the plaintiff- pre-emptor, as a result of the original sale transaction lose their right on account of the principle of sinker as provided In section 19 of the Act,' then that loss cannot be considered to be permanent and irremedi able. By the purchase of the share of the strangers, defendants Nos. 2 and 3 had not only removed the disability provided in, section 19, but had also improved their status which is permis sible under section 16. No doubt sections 16 to 19 of the N.-W. F. P. Pre-emption Act of 1950 had not come for interpreta tion before this Court after the Act was enforced, but sections 191 to 24 of the Agra Preemption Act, 1922, are quite analogous to B those sections and there is no dearth of precedents on this point of the Allahabad High Court, where the cases were decided by taking into consideration those provisions of the Agra Pre emption Act. Counsel for the respondents has relied on Badri Pandey v. Parsotam Singh and others (A I R 1928 All. 697), wherein it has been clearly laid down that by joining strangers, a vendee, who had equal right of pre-emption with the plaintiff pre-emptor does not lose his right irrevocably. In Mst. Qudrat-un-Nissa Bibi v. Abdul Rashid and another (A I R 1926 All. 661) and Hans Nath and others v. Ragho Prasad Singh (A I R 1932 P C 57), it is laid down that "when a vendee who had no pre-emptive qualifications could improve his status up to the date of the decree, then a vendee who loses his right on account of joining a stranger with him in the sale, can well improve his status by the purchase of the share of the strangers. "No doubt in the Punjab Pre-emption Act of 1913, there is no specific provisions analogous to the provisions of sections 16 to 19 of the North-West Frontier Province Pre-emption Act of 1950. In interpreting section 4 of the Act, the Lahore High Court in a case reported as Alt Muhammad and another v, Muhammad Din and others (A I R 1941 Lah. 444) Full Bench had clearly held that "if a vendee having an equal right of pre-emption associates with himself in a joint purchase a stranger, he loses his right of pre-emption and cannot be allowed to retain even his own share of the purchase, but if the vendee during the pendency of the suit removes the defect by pur chasing the stranger's share at any stage before the final adjudica tion of the case, the pre-emptor cannot succeed irrespective of the fact that the subsequent acquisition takes place after the limita tion had expired." This authority is on all fours with the present case. Din Muhammad J., who is the author of this Full Bench judgment has very pertinently further remarked : "It is true that by joining a stranger with himself a person with an equal or superior right of pre-emption loses his right in the first instance, but, in my view, this loss of the right is not irremediable. At the worst such a vendee is relegated to the position of a stranger and if a stranger can by improving his status at any time before the passing of the final decree defeat the pre-emptor, it is incomprehen sible why the same privilege cannot be allowed to a vendee in the circumstances involved in this case." There is an express provision with regard to the fact that the status of the parties should bel determined at the time of the passing of the decree enacted In c section 16 of the N.-W. F. P. Pre-emption Act of 1950. No doubt, therefore, has been left, as to the stage, when the status of the parties with regard to their possession of the qualifications foil pre-emption should be considered.

11. As already pointed out, the provisions of sections 16 to 19 of the N.-W. F. P. Pre-emption Act of 1950 expressly provide with regard to the points in controversy, while the Full Bench authority of the Lahore High Court was based on section 4 of the Punjab Pre-emption Act of 1913, which was not so clear. I am therefore, quite clear in my mind that the disability provided by section 19 with regard to the loss of the pre-emptive right of the vendee is curable and remediable, and when such a vendee purchases the property he had jointly purchased with them, the defect was fully cured. This he was competent to do under section 16 of the Act, before the decree bad been passed. The appeal fails and is dismissed with costs.

12. Counsel for the appellant has urged that since there has been no pronouncement of the High Court on this point with regard to sections 6 to 19 of the N.-W. F. P. Pre-emption Act, 1950, therefore, If the appeal is dismissed, permission to file a Letters Patent Appeal may be accorded. I have got no hesitation in acceding to this request as the point decided in the appeal, though not a new one, but it will be in the fitness of things that the pronouncement of a larger Bench Is made with special refer ence to sections 16 to 19 of the N.-W. F. P. Pre-emption Act, 1950. I, therefore, accord the necessary permission to the appellant to file a Letters Patent Appeal, if he is so advised.

K. B. A. Appeal dismissed.

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