P L D 1995 Supreme Court 561 (PLP)

SHAFIUR RAHMAN, J.--Leave to appeal was granted to the pre emptor/plaintiff to examine whether the High Court had by its judgment dated 9th of December, 1985 justifiably interfered with a concurrent finding of fact 'A recorded by the two Courts that the transaction effected by registered gift deed was in fact a sale which was pre-emptible.

2. Allah Nawaz was possessed of 4 Kanals 7 Marlas of land out of which, on 18-9-1980, by a registered gift deed he parted with four Kanals in favour of the respondent. The appellant instituted a civil suit contending that what was ostensible a gift, in fact was a sale and pre-emptible by anyone having the superior right of pre-emption over the vendee. The contest between the parties centered round issue No.4 i.e., whether the transaction in question is that of sale and not Hibba? OPP. The trial Court decided it as hereunder:-- "Normally a gift is made to a person who has rendered some service to the donor, or there is some relationship, affection, love etc. Here there is no such thing. The donor has children and other heirs too. From the entire evidence of the plaintiff it is proved that the transaction is not a gift. If i5 a worth mentioning trial evidence produced by plaintiff to disprove, the gift is quite consistent to the defence evidence. The intention of the donee: and donor is not proved The upshot of my discussion is that the transaction is not Hibba."

3. The District Judge, on appeal, also attended to the same question as hereunder:-- "It is an admitted fact that the donor is not related with the defendant/ appellant and both of theist are almost of the same as Donor is the resident of the village in which the suit property lies, while the defendant/appellant is permanently putting up at Dera Ismail. Khan City in a suburb area known as Basti Ustrana for the last 10/12 years. He is driver by profession. It is also on the record that not the defendant appellant, but his maternal-uncle looked alter the transferor after the death of his father alongwith his mother. The transferor is not a big landlord and is a family man. It is there on the record that with regard to the. suit property, the father of the transferor entered into a sale transaction with the father of the defendant/appellant, but the paid bargain could not be brought in the revenue papers through a registered deed or a mutation and the transferor by way of his moral obligations, wanted to pay of the debt on the shoulders of his late father. This would lead me to the conclusion that the transaction was not a gift, but a sale simpliciter and hence pre-emptible."

4. When the matter came to the High Court in revision, the learned Judge held that he could interfere with the concurrent finding of fact on account of misreading of record, but no misreading of the record was noticed. The definition of sale was examined and it was found that there was no evidence to show that any price was fixed or paid and for that reason, he held that the transaction was not proved to be not gift. Hence, he declared it to be not pre-emptible as a gift.

5. The learned counsel for the appellant has referred to section 4 of the Pre-emption Act which empowers the Court to hold that an alienation purported to be other than a sale is in fact a sale and he has drawn attention to Tara Chand v. Baldeo and others 117 Pb. Records 1890, Chiragh Din v. Allah Din and another 129 Pb. Records 1916, Hayat Ali and another v. Ghazan represented by the heirs 1981 CLC 456 and Yahya Gul and another v. Yahya Jan and another PLD 1968 Pesh. 122 to establish that what are the factors ordinarily taken into consideration for declaring an ostensible gift, a sale. According to him, all the requirements are herein satisfied and something more.

6. The learned Judge in the High Court took note of a document Exh.D.W.l/1 which was in fact an unregistered sale-deed in respect of two Kanals out of four Kanals of the disputed land by the father of the donor to the a father of the donee. Both the parties stand by that sale and the donor says that it was on account of that sale that he made the gift which was the subject- matter of the pre-emption suit. This plea itself is self-contradictory. If the land stood sold, no further gift of it could be made. If the land had not been sold, then alone a gift or resale could take place. It appears that though orally both the parties stood by that earlier sale, they repudiated it by making it the subject-matter of the gift. The gift has no basis except for earlier sale and that fact had been admitted by Allah Nawaz himself. Therefore, there was no occasion for Allah Nawaz to make a gift and that conclusion itself is E established from the facts noted by the two Courts concurrently, recording a finding of fact.

7. It is true that there is no evidence about a price having been fixed or paid as between Allah Nawaz and Muhammad Jan but the attending circumstances, as has been brought on record, are sufficient to establish that it was a sale. Hence, it was pre-emtible.

8. The appeal is allowed. The judgment of the High 'Court is set aside and that of the trial Court and the first appellate Court restored. M.BA./H-233/S Appeal allowed.