1979 PLP 632 (CLC)

"Some fifty years before in Soloman v. A. Salmon & co. Ltd. Lord Watson bad said : "Intention of the Legislature, is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislatures probably would have meant, although there has been an omission to enact it. In a Court of law or equity what the Legislature intended to be done or not to be done can only be ascertained from what it has chosen to enact, either in express words or by reasonable anti necessary implication'." In view of this cardinal principle of interpretation of statute it can legitimately and reasonably be said that 'paid' in pre-emption Law means, payment made in fact, though it may not have been made in good faith as c word 'paid' is not qualified by "good faith" and the Courts are not to improve the statute, they are to expound it. At this stage we may refer to some relevant authorities bearing on our view. In A I R 1930 Sind 287, Rupchand acting Chief Justice, on page 293, made the following observations "But Judges are not responsible for Acts passed by the Legislature and in the words of Lord Bacon they ought to remember that their office is jus decere and not jus dare, to interpret the law and not to make law or give law, it is their duty to abide by the words of the statute without attempting to reform it according to the supposed intention of the Legislature, or exclude cases which fall within the express meaning of the rules in order to make the law reasonable." In A I R 1924 Lah. 65, it is observed by Shadi Lai Chief Justice on page 67 :- "It is not, however, for the Court to speculate as to the intention of the Legislature if that intention has not been carried into effect by the language used. As pointed out by Maxwell in his book on the Interpretation of Statutes, 6th Edition at page 10 "When the words admit of but one meaning a Court is not at liberty to speculate on the intention of the Legislature and to construe them according to its own notions of what ought to have been enacted. Nothing could be more dangerous than to make such considerations the ground for construing an enactment that is unambiguous in itself. To depart from the meaning on account of such views is, in truth, not to construe the Act, but to alter it. But the business of the interpreter is not to improve the statute ; it is to expound it. The question for him is not what the Legislature meant, but what its language means ; i.e. what the Act has said that it meant. To give a construction contrary to, or different from, that which the words import or can possibly Import, is not to interpret law, but to make it, and Judges are to remember that their office is jus dicere, not jusdare." In A I R 1940 Lah. 27, the learned Judge, Mr. Justice Din Muhammad came to the conclusion that - "A Court of law is not justified in going behind the plain wording of the act and to speculate as to what the legislators intended to enact. A cardinal rule of the interpretation of Statutes is that their words should be interpreted in their plain grammatical sense." \In a Full Bench case reported as A I R 1942 All. 394, Iqbal Ahmed Chief Justice, who wrote the judgment for the Court, on page 395, reduced with approval in verbatum the observations made in a Full Bench case decide in 1942. The observation is :- "We are not dealing with a technical word, but with a word in common use in the English language and it is one which has no technical meaning whatever. The rule in such cases is to construe the word according to its popular and colloquial meaning." In this very judgment on page 396, it is observed :- When the words used by the Legislature in a statute are clear it is not permissible for the Courts to depart from the ordinary and plain meaning of the words used on the mere supposition that the intention of the Legislature was otherwise than indicated by the plain and ordinary interpretation of the words used." It is thus evident that the Courts always showed reluctance to import any other meaning to a word used in a statute except the plain and gram matical meaning which carries. In P L D 1963 S C 704 it has been observed by Mr. Justice Kaikaus, J. (as he then was) The applicability of a law as long as we follow the English System of jurisprudence must depend upon the intention of the Legislature. In Maxwell it is stated at the very outset that the fundamental rule of interpretation to which all others are subordinate is that a statute is to be expanded according to the intent of them that made it." The word 'paid', therefore, in view of the above, cannot. be given any other meaning except that which it carries. The dictionary meaning of the word 'paid' conveys the intention of the Legislature. This intention becomes all the more transparent when we find that the Legislature in its wisdom as said earlier avoided the word 'paid' to be qualified by 'good faith'. If the payment, therefore, is proved to have been in fact made, Courts are debarred to go to the market value to determine the price of the land howsoever high or fancy it may be, because the law of pre-emption does not allow a pre-emptor to take objection on a price actually paid on the ground that it is a fancy price ; the market value being no test of what should have been paid by the .pre-emptor until price mentioned in the deed is shown by the preemptor to have not been paid. The motive which promoted the vendee to pay fancy price is immaterial and a vendee can pay price out o proportion to the real price if he so wishes. It is only when it is found that the price was not either fixed in good faith or in fact paid that the market value is to be fixed as price. In view of the circumstances and the state of law, it does not require laboured argument to say that it is open for a vendee to pay fancy price to deter a prospective pre-emptor and if such payment is proved to have been made, it will determine the price even if there is disparity between the amount actually paid and market value. In this case as it has been held on good evidence that the price was in fact paid and there is no proof of return, the price found to have been in fact paid shall be taken as correct and no question of market value arises. The learned Judge while making a reference to an earlier case held that the price in sale deed is generally pretentious as a precaution against pre-emption. In having this finding, in our view, the learned Judge fell in error and in fact omitted to take note of the fact that even this fact like -any other fact requires strict proof and that too from the pre-emptor. However, the judgment relied upon by the learned Judge does not support the finding that in no event fancy page in excess of the market value is missible. In that case dealing with the issue it was observed :- "As market value does not remain stationary, a reasonable raise would not make any difference but in cases where it is unreasonably high and at the same time the vendee is unable to show why after all he should have paid such a high price, I think the Court may well take an inference that the ostensible price was not actually paid." it was observed again that a vendee is entitled to pay a fancy price, because a man may even burn his currency notes to derive joy out of the flames thus kindled, but what is equally important to emphasise is that a fancy price is paid because the property has some such special significance or use or appeal for the vendee that he has developed a fancy for it." It is thus manifest that even the judgment referred to by the learned Judge allows fancy price if the property has some special significance or use or appeal for the vendee. The enunciation of law in the case relied upon as shall be seen at the proper stage has no application to the facts of the present case. It does not affect adversely the appellant's case, rather it supports the appellant to have the full payment of Rs. 3,000 the amount actually paid to the vendor. In A I R 1927 Lah. 878 (D. B. case) Addison Judge who wrote the judgment for the Court dealing with the point observed "Section 25, Punjab Act I of 1913 applies to this case. The Court has to determine whether the price has been fixed in good faith or paid (not "paid in good faith"). It is only if it is found that the price was not fixed in good faith or paid that the market value is to be fixed as the price. If, however, the finding is that the price is fixed in good faith, or paid, such price should be fixer) at the price for the purposes of the suit. The section it clear and admits of no doubt. The Court is debarred from going into such questions as fancy price, source of the purchase money, etc., if the price has been fixed in good faith or paid. A vendee can pay a fancy price out of all proportion to the real price if he so wishes. The only question arising in the first instance is was the price paid? It has been held on good evidence that it was paid and there was no proof of return. In these circumstances under section 25 the price bad to be taken and no question of market value arose. Besides, the fact that the price paid differed very substantially from the market value would not lead to the inference that the price was not paid. It follows that the decision of the Courts below was wrong in law and can be challenged in second appeal. in Thakar Singh Nabi Bakhsh it was held that if the price was paid, there was no need to go further and that a man could say that, whatever the market value might be, he had paid the price mentioned in the sale deed and that the pre-emptor must pay that sum. This is clear authority for the proposition that the question of market value is immaterial in a case like the present." The same question came up for consideration in' a case reported as A I R 1936 Pesh.

12. In that case the market value due to its disparity with the amount actually paid was taken into account to determine the sale price. A decree, therefore, on payment of the market value was passed. An appeal preferred to the District Judge also failed. In revision before the High: Court, the judgments of both the Courts below were vacated and it was observed :

"The words used in section 22, of Act 2 of 1905 were "paid or fixed in good faith" and there was some doubt whether good faith qualified the word 'fixed' only or both the words 'paid and fixed'. The Legislature has therefore advisedly changed the order. The result of the change is that three situations may arise : (1) the vendee may definitely establish the fact that he has paid the price given in the sale deed (2) the vendee may establish beyond doubt that purchase money mentioned in the document of sale has been fixed in good faith although not paid, or (3) the vendee may not be able to prove that the alleged sale price has been "fixed in good faith" or `paid'. It does not require laboured argument to show that in the first case be would be entitled to the full sum claimed by him. The only point for decision would be whether in fact the payment has been made. It is open to the pre-emptor to prove that a portion has teen refunded. bat he has to prove it affirmatively and not by raising mere suspicions. In the absence of clear proof of refund from the side of the pre emptor the mere fact that payment has been established shall per se be enough to entitle the vendee to the price claimed. 1 may point out that the question as to what is the market value and the drawing of an inference adverse to the vendee from the fact that there is a great display between the market v.1ue and the price alleged to have been paid are considerations absolutely irrelevant to the enquiry and the Courts should not go Into them at all. The vendee may have paid a fancy price to get a footing or may have paid a ridiculously high sum to deter the pre-emptor from snatching the land away from him. It is no business of the Courts to find out why he has paid a large sum if it is found that he has, as a matter of fact, paid it." It was further observed that "The fact of refund had to be proved just like any other relevant fact." The judgment under appeal, appears to have followed a Lahore High Court case reported as P L D 1954 Lah.

471. Mr. Justice B. Z. Kaikaus who wrote the judgment for the Court observed that "It is not possible for me to appreciate the effect of the absence of the phrase (in good faith) on the present case. It can hardly be argued that on account of the absence of these words; a fraudulent show payment before the Sub-Registrar is sufficient to constitute payment of price for the purpose of the Pre-emption Act. Payment, even without the qualification of good faith, means a genuine and not a fictitious payment. It means a real transfer of money where the parties intend that permanent interest in the money should pass from one party to the other. An inference of fictitious payment is possible on this material. Apart from the other circumstances relied upon, it may be considered whether the main fact in this case, Le., the great disparity between the ostensible price and the market price can itself, when considered along with the absence of any explanation by the vendee be sufficient to justify the inference that the sale price was fictitious." "In our opinion when it is alleged that the sale price is fictitious and put into the deed for the purpose of defeating pre-emption, it is open to the pre-emptor to give evidence to show that the market price is far below that stated in the sale-deed. If he gives such evidence to the satisfaction of the Court. the latter is quite justified in arriving at its own conclusion as to what is the real consideration, and this notwith standing, that it is proved that the amount stated in the deed was paid before the Sub-Registrar." The minute reading of this judgment also reveals that the disparity between the market value and the price actually paid cannot be said of universal applicability to say that in such cases the market value shall determine the price. Each case has to be decided on its own merits. If there is disparity between the market value and the actual price paid, and there is no material to justify the alleged payment, the market value may be taken to be the price actually paid. But if the circumstances justify the payment in excess of the market value, and such payment is in fact proved to have been made, such price despite the disparity between the market value and the actual price paid, shall determine the sale consideration. Here in this case the reading of the evidence provides plausible explanation for making payment in excess of the market value. Rasool Shah P. W. 2 states that the land falls adjacent to the house and other land of the vendee. Similarly Ahmed Ali P. W. 3 says that the suit land falls on the road side and in fact a portion of this land is consumed by the road ; and the land is under cultivation. In view of the statements of these witnesses examined by the respondents, we are of the view that there exist cogent reasons for payment in excess of the market. value. The land is adjacent to the house and other land of the plaintiff. It is under cultivation. It is situated on the road side and in fact a portion of the land is consumed by the road. These factors satisfactorily explain the high price paid in excess of the market value. Therefore, the Lahore case and case referred to by the learned Judge are distinguishable and have little applicability to the facts of the present case. The payment of Rs. 3,000 before Sub-Registrar is even admitted by the plaintiff' in the plaint, though it is stated therein that Rs. 2,500 were returned to the vendor, after registration of the sale deed. But there is no proof of the return of this amount and as held in A I R 1936 Pesh. 12, if return is alleged, it is to be proved by the person, who pleads so. The Supreme Court of Pakistan in P L D 1970 S C 299, dealing with the point observed. " .... However, the correctness of the view of the Lahore High Court in Ladh Singh v. Kehr Singh, is apparent from the provisions of section 25 of the Punjab Pre-emption Act, 1913. Subsections (I) and (2) of section 25 of that Act which are relevant here run thus "25.-.-(1) If in the case of a sale the parties are not agreed as to the price at which the pre-emptor shall exercise his right of pre-emption, the Court shall determine, whether the price at which the sale purports to have taken place has been fixed in good faith or paid, and if it finds that the price was not so fixed or paid, it shall fix as the price for the purposes of the suit, the market value of the land or property. "(2) If the Court finds that the price was fixed in good faith or paid, it shall fix such price as the price for the purposes of the suit. It appears from these provisions that if the Court, finds that the price mentioned in the deed of sale was, in fact, paid, then, the pre-emptor, in order to pre-empt, shall be required to pay that price, and it shall not be necessary for the Court to determine the market-value of the property and fix the price for the purpose of pre-emption." We are of the considered view that the law on the point in issue is correctly enunciated in A I R 1927 Lah. 878, A I R 1936 Pesh. 12, P L D 1970 S C 299, P L D 1954 Lab. 471, and the cases referred to by the learned Judge do not hold contrary to the proposition that the price proved to have been in fact paid shall reflect the price of the land even if it exceeds the market value. Besides, in this case we have current findings of the Court of the firs g instance as well as the first appellate Court that amount of Rs. 3,000 was in fact paid as price of the land without any evidence of refund. This finding in our view is based in well reasoned and analysed facts and could not lightly disturbed by the High Court, except on Vie basis of misreading or non-reading of the evidence or on the basis of some error apparent on the face of the record, which is no body's case. . For the reasons given above, we would accept this appeal and upsetting the judgment of the High Court, decree the suit on payment of Rs. 3,000, the amount actually paid in addition to the cost of the registration. Amount if not deposited shad be posited within the months from the date the judgment is notified to the pre-emptor. In view of the nature of the point involved, parties are left to bear their own costs. Appeal accepted.