P L D 1973 Lahore 878 (PLP)

The transfer of land in lien of dower to the wife by the husband partakes the character of a gift and could not be termed a sale for the purposes of the Punjab Pre‑emption Act and if the original transfer is not a sale, how is the Implemen tation of the covenant a sale. On this view of the matter the High Court held in disagreement with the Courts below, that the transfer of property by the husband to the wife in considera tion of the whole of her dower is a hiba or hiba bilewaz and has all the advantages of a sale without the disadvantage of being pre‑emptible. P L D 1952 Lah. 421 ref. Qazi Muhammad Ashraf for Appellants. Hakim Muhammad Sardar Khan for Respondent. Dates of hearing : 20th , 23rd April and 20th June 1973. This second appeal has arisen out of these facts. Faujdar Khan, the second appellant, transferred half share in 102 kanals of land, situate In Khushab District Sargodha, by a registered deed in favour of his wife Mst. Shahzadan Bi, the first appellant. His brother Gulzar Khan (respondent) brought a suit for possession through pre‑emption on the twin ground that (a) he Is a Muslim law heir of the vendor and (b) is a co‑sharer in the Kbata and the Patti and is an owner in the estate. The ostensible price of Rs. 500.00 fixed in the sale deed (Exh. P. 2) was also challenged as having not been paid or fixed in good faith. Amongst other objections, the vendee pleaded that because the property had been transferred to her by the husband in lieu of dower, was a gift and not a sale and as such not pre emptible. Reliance was placed for this plea on Exh. D. 1, a copy of the Nikah Register, and Exh. P. 2, the indenture of transfer. The trial Judge treated Issue No.1, pertaining to pre‑emptor's superior right, as a preliminary issue and dismissed the suit holding that according to the law of inheritance under the Shariat Gulzar Khan (brother of the vendor) being a residuary has no superior right of pre‑emption as against Mst. Shabzadan bi (vendor's wife), a sharer. Gulzar Khan appealed and the Senior Civil Judge (with enhanced appellate powers) while reversing the finding as to the pre‑emptors not having a superior right of pre‑emption accepted the appeal and remanded the case under Order XLI, rule 23, C. P. C. to the trial Judge with the direction to decide the following new issue, and if so advised, to decide the other Issues already framed by him:‑ Whether the transaction In question is pre‑emptible ? After remand the suit was decreed when the trial Judge found that the transaction evidenced by the deed Exh. P. 2 is a sale and not a hiba. On appeal, the Senior Civil Judge (with enhanced appellate powers) held that his interpretation of Exh. P.1 (the deed of reconveyance by the wife to the husband) and Exh. P. 2 Is that it is not a case of gift and is a case of sale and hence pre‑emptible.

2. In this second appeal two fold‑argument has been raised: Firstly, that the transaction being a gift, and not a sale, is not pre‑emptible. Alternatively, If the transaction is found to be a sale, the vendee and the pre‑emptor being a sharer and residuary of the vendor, respectively the pre‑emptor has no superior right of pre‑emption.

3. As for the alternate objection, the law is fairly settled. The amended clause thirdly of section 15 (b) of the Punjab Pre‑emption Act is the same as clause thirdly of the original section except the words "not included under firstly or secondly, above". The relevant provision of section 15 is reproduced below for ready reference

15. Subject to the provisions of section 14 the right of pre emption in respect of agricultural land and village immovable property shall vest‑ (a) . (b) Where the sale is of a share out of joint land or property, and is not made by all the co‑sharers jointly, firstly, in the lineal descendants of the vendor in order of succession: secondly, in the co‑sharers, if any, who are agnates, In order of succession thirdly, in the persons, not included under firstly or secondly, above, in order of succession, who but for such sale would be entitled on the death of the vendor, to inherit the land or property sold : Provided that In case where the sale Is by a Muslim, the firstly and secondly shall be inapplicable, and the thirdly shall read as follows :‑ thirdly, In the persons in order of succession, who but for such sale would be entitled, on the death of the vendor to inherit the land or property sold. The unamended clause thirdly of section 15(b) of the Punjab Pre‑emption Act was considered in Muhammad Alt Khan v. Mst. Zewar Nisa (A I R 1942 Posh. 22) of the report, which I borrow with respect t‑ ..It is an accepted principle of law that when deciding the question of the superiority of the right of pre‑emption under clause (b) thirdly the Courts have only to keep in view the plaintiff and the vendee and no other relations of the vendor. They have to take it that the vendor has died and have to find out as to who of the parties before them‑‑the pre‑emptor and the vendee‑is entitled to inherit his property to the exclusion of the other. The person who is so entitled has a superior right of pre‑emption. If he is a pre‑emptor he gets a decree. And if he is a vendee the pre emptor s suit is dismissed. On the other hand if it is discovered that they are entitled to inherit equally their right to pre‑empt is declared to be equal and the pre‑emptor fails. Applying that principle, if the vendor in the Instant case is presumed to have died, the vendee will succeed as a sharer while the pre‑emptor will simultaneously inherit the residue as a residuary. Therefore, the pre‑emptor, a residuary can at best have an equal right to inherit simultaneously with she vendee, a sharer, but definitely has not a superior right and the finding to the contrary is the order of remand is not sustainable. However, learned counsel for the pre‑emptor raises the plea of non‑availability of such an argument because of the failure of the appellants to challenge the order of remand by way of appeal, which remedy is provided by law under Order XLIII, rule 1(u) of the Code of Civil Procedure. The plea is grounded on subsection (2) of section 105, C. P. C., which section enacts in the first part the principle that inter locutory orders affecting the decision of the case not appealed from may be set forth as a ground of objection in the memo randum of appeal from the final decree. An exception is made to this general principle in the second clause that any aggrieved party by an order of remand from which an appeal lies does not appeal therefrom will stand precluded from disputing its correctness. The principle that a party is not to be vexed twice over for the same cause Is acknowledged in sections 10 and 11 of the Code of Civil Procedure and even where sec tion 11 does not in terms apply, the general principles of res judicata have always been Invoked by Courts of law to achieve finality in litigation. The principle applies as between two stages in the same litigation. An Issue decided in one way at an earlier stage is not allowed to be re‑canvassed at a subsequent stags. This salutary rule of practice finds recognition in Karam Singh and another v. Vir Sigh and others (A I R 1921 Lab. 154) and Sant Ram v. Hira Nand and others (A I R 1930 Lab. 719) and many other authorities of other High Courts. The appellants having failed to challenge the order of remand, they are not in a position to re‑agitate the question of incorrectness in the said order of the interpreta tion of section 15(b) thirdly of the Punjab Pre‑emption Act in this appeal. Learned counsel for the appellants attempted to argue with reference to some observations in Kalika Prasad v. Ajudhia Prasad (A I R 1929 All 719) that although the parties are not competent to re‑agitate the point which is res judicata between them, the Court can relieve the party of the injustice done to it by invoking its inherent jurisdiction under section 151 of the Code of Civil Procedure. I am not impressed by the argument and with great respect would hold that the express provisions of the Code of Civil Procedure embodied in section 105(2) cannot be circumvented by having recourse to section 151, because the Inherent jurisdiction has always been held to be exerciseable only when no other provision of law on the particular point is available. On this view of the matter I hold that although the finding in the order of remand with respect to the pre emptor having a superior right is incorrect, that plea cannot be advanced by virtue of the express provisions of section 105(2) of the Code of Civil Procedure.

4. For the proposition that the transaction being a gift and not a sale is not pre‑emptible, reliance has been placed on Durab Khan v. Mst. Sabyani (P L D 1952 All. 421). The precedent case has been distinguished by the Courts below on the ground that Exh. P.2, the indenture of transaction has been described by the parties themselves as a sale‑deed the value of the property is not in excess of the dower money, the very text shows that the transaction is a sale and not a gift and the intention of the parties is clear that they were entering into a transaction of sale and not a gift, which intention is further strengthened by Exh. P.I, the document of reconveyance (post item) by Mst. Shahzadan Bi, the vendee, to her husband Faujdar Khan, the vendor. Some argument was raised in connec tion with the question of the particular issue being one of law or a mixed Issue of law and fact. It has been held in Sundar Das v. Dhanpat Rai and others (16 P R 1907) that if the question relates to interpretation of the document itself, it is an Issue of law but if the party raising the issue relies on the indenture as a factor or as a piece of evidence to gather the intention of the parties, it will be a question of fact which cannot be entertained as s ground in second appeal. It is true that a question of fact cannot be successfully canvassed in second appeal. Such a finding, however, is not binding when a pertinent piece of evidence which goes to the root of the case, is disregarded. Shankarrao Datadujirao v. Sambhu Nathu Patil (A I R 1940 P C 192) is in point. In the instant case, the vendee had pleaded that the land in question was not pre‑emptible because it had been given to her in lieu of dower on the date of Nikah, namely, the 4th of October 1956, and the document was executed on the 29th of October 1956 and registered on the 31st of October 1956 In implementation thereof. No specific Issue was framed in this regard by the trial Court and the case suffered a remand. Even after remand, the trial Judge has given no separate finding on the new issue framed by the Court of Appeal and has casually observed under Issue No. 1 that `the alienation in suit is a sale and pre‑emptible. This finding has been given without reference to Exh. D. 1, the copy of the Nikah Register, wherein it has been specifically stated in the column of dower amount fixed "Rs. 500.00 dower in lieu whereof land which Is 13 bighas". The Senior Civil Judge (with enhanced appellate powers) has affirmed this finding, again without noticing Exh. D. 1 or the impact thereof on the proof or otherwise of the plea of the transaction being a transfer in lieu of dower. Now, if on the 4th of October 1956, the husband agrees to give land measuring 13 bighas worth Rs. 500.00 to the wife and then some twenty‑five days thereafter Implements that part of the contract of marriage by a registered deed, how can the transfer be viewed independently of the marriage contract and held to be sale because the scribe of the document so styled it or terms such as sale, vendor and purchaser have been used in the indenture or the husband has entered Into a personal covenant to reimburse, if the wife loses the property in any event other than a pre‑emption suit. All these recitals in the deed will not go to show that it was a transaction detached from the Nikah performed twenty‑five odd days earlier. Similarly the deed of reconveyance, Exh. P. 1, by the wife to the husband is an ineffective stop taken to defeat the pre‑emptor. It, however, would not transform the transfer by husband to wife into a sale. As held by Rahman, J. (as his Lordship then was) that a transform of the character under discussion may have some incidents of a sale proper and, therefore, may be described as tantamount to a sale for certain purposes but the view seems to have been consistently adopted so far as this Court is concerned, that such a transaction is not subject to a right of pre‑emption as it involves an element of gift (P L D 1952 Lah. 421), the transfer of 13 bighas of land in lieu of dower on the 4th of October 1956 to the wife by the husband partakes the character of a gift and could not be termed a sale for the purposes of the Punjab Preemption Act and if the original transfer is not a sale how is the implementation of the covenant a sale. On this view of the matter I hold, in disagreement with the Courts below, that, the transfer of property by Exh. P. 2 by the husband to the wife in consideration of the whole of her dower is a hiba or hiba bilewaz and has all the advantages of a sale without the disadvantage of being pre‑emptible.

5. For the reasons above, the appeal succeeds and is allowed. However, there will be no order as to costs. S.A.H. Appeal allowed