1989 PLP 1022 (SCMR)

USMAN ALI SHAH, J.‑‑This appeal by special leave of the Court is directed against the order, dated 28th of April, 1982 of the Peshawar High Court, Peshawar, whereby it upheld the judgment and decree passed by the Additional District Judge in favour of the plaintiff pre‑emptor and dismissed the revision petition of the vendee appellant.

2. Hakim Shah plaintiff pre‑empted land measuring one kanal sold by his wife Mst. Miran in favour of Mir Bahadur vide sale Mutation No.15581 attested on 4‑4‑1978. The suit was dismissed by the trial Court mainly on the ground of estoppel/waiver. The appeal filed by Hakim Shah was accepted by the Additional District Judge, Swabi, by his order, dated 28‑6‑1981. Mir Bahadur preferred a revision petition before the High Court. A learned Single Judge in the High Court declined to interfere with the judgment of the Court below and dismissed the revision petition.

3. Leave to appeal was granted to consider the point, "inter alia, that on the facts of the case it was crystal clear that respondent had acquiesced in the sale transaction". Hence the question is whether the sale was effected with the consent of Hakim Shah plaintiff pre‑emptor on behalf of his wife Mst. Miran and whether A this fact, if proved, could be construed as amounting either to waiver or an estoppel.

4. The learned counsel for the appellant contended that at the time of the sale both the husband and wife lived together in the same house and it was effected by Hakim Shah (plaintiff), the husband of Mst. Miran vendor and the entry of the sale transaction was made by Hakim Shah with the local Patwari who after receipt of the entire sale price handed over possession of tile land in dispute to the vendee‑appellant. According to the learned counsel, in the case all that is shown is that Hakim Shah committed positive act in the completion of the sale and thus forfeited his claim of pre‑emption.

5. Learned counsel for the respondent while defending the two judgments of the Courts below argued that in the circumstances of the case Hakim Shah acted in representative capacity in the sale transaction and is not estopped to make claim of his right in his personal capacity and further argued that mere entry of the sale made with the Patwari was not to be taken as consent or of relinquishing of his own claim of pre‑emption. He also made reference to provisions of the Contract Act that the husband acted as an agent of his wife in the sale contract and not acted in his own capacity. We were taken through the record and find that in the sale mutation in column 13 the entry is made at the instance of Hakim Shah before Patwari on 28‑3‑1978. The statement of Mst. Miran was recorded on commission on 4‑4‑1978 and she admits the sale in favour of Mir Bahadur and the receipt of sale consideration. There is no evidence to the effect that the husband and wife had strained relations to live separately at the time of sale. The provisions of the Contract Act relating to Agency to act on behalf of his Principal are in conflict with the provisions of the N.‑W.F.P. Pre‑ f emption Act 1950 and as such the latter being local law overrides the provisions of the general law (i.e. the Contract Act is to yield to the N.‑W.F.P. Pre‑emption Act which is a Special Law).

6. We are of the view that the facts of this appeal are sufficient to prove that the purchase of the land in dispute has been effected with the consent of the plaintiff Hakim Shah and he is not entitled to pre‑empt the property of his wife sold through him. Hence while allowing the appeal, the judgment of the Additional District Judge and that of the High Court are set aside, the judgment and decree of the Senior Civil Judge is restored and the suit is dismissed with costs. A.A./M‑748/S Appeal allowed.