P L D 1952 Peshawar 1 (PLP)

MUHAMMAD SHAFI, J.‑Arjali, son of Shah Zaman, was an owner by private partition of 3 Kanals J Marlas of land in Khasra No. 1301, situated in Sufaid Dheri, Mandi Musa Khel, Tahsil Peshawar. By a deed dated 25th September 1948 register ed on 28th September 1948, Aijali sold 16 Marlas out of 1 Kanal 16 Marlas of his share of the land to Nisar Ahmad, Nazir Ahmad, Johan Zaib and Muhammad Ghufran minors through their. uncle Kundal Khan, and 10 Marlas to Abdul Hai, son of Gul Zaman, for Rs.

700. The whole of the amount was paid in the presence of the Sub‑Registrar. On 23rd September 1949, Mussali Khan, a brother of Arjali, the vendor; instituted a suit for possession by pre‑emp tion of the land sold in favour of the above five persons. In defence it was alleged that the vendees had sold away this property in favour of one Azim Khan, another brother of Arjali, who had threatened to exercise his right of pre‑emption by a suit, and since the rights of the plaintiff and Azim Khan were equal, therefore the plaintiff's suit was liable to fail. Azim Khan was made a party to the case and in support of his claim to the property he produced a sale‑deed executed by Kundal Khan on behalf of his minor nephews and by Abdul Hai in favour of Azim Khan on 26th September 1949, and re gistered on 7th November 1949. Several other objections were raised in the written state ments, which resulted into the framing of the following eight issues :‑

1. Is the suit within time ?

2. Has the plaintiff waived his right of pre‑emption ?

3. Whether the transfer in favour of Azim Khan is Be nami and is without consideration ; if so with what effect ?

4. Is the transfer made by Kundal Khan on behalf of the minor vendees in favour of Azim Khan illegal and void ; if so, with what effect ?

5. Has the plaintiff preferential right of pre‑emption against Azim Khan; if not with what effect ?

6. Was the sum of Rs. 700 fixed in good faith or paid ? ,

7. What is the market value ?

8. Relief ? The plaintiff in support of his case himself appeared into the witness‑box and also produced Sakhawat Ali Patwari. On the other side Azim Khan and Kundal Khan appeared into the witness‑box and produced Shah Sawar, Maimoon Shah and Khadi Khan as witnesses. On issue No. 1, the learned trial judge held that the first sale‑deed which is the subject‑chatter of the pre‑emption suit having been executed on 25th September 1948, and registered on 28th September 1948, the suit brought on, 23rd September 1949, was within one year and consequently within time. On issue No. 2, he held that none of the D. Ws. had said a word about the plaintiff having waived his right and since there was no evidence produced on this issue it should be decided against the defendants. On issue No. 3, he came to the conclusion that the burden of proving this issue was on the plaintiff, who had failed to produce any evidence in support thereof. The sale‑deed in favour of Azim Khan was written by Shah Sawar and witnessed by Maimoon Shah and Khadi Khan, out of whom Maimoon Shah was toe relation of Kundal Khan but the rest of the witnesses were disinterested, whom he had no reason to disbelieve. He consequently decided this issue in favour of the defendants. On issue No. 4 he found that although Kundal Khan was not competent in law in his capacity of a de facto guardian of the minors to sell away the property, yet as the sale by him in favour of Azim Khan on behalf of the minors was in the latter's interest, therefore, it was neither illegal nor void. On issue No. 5 he held that Azim khan and Mussali Khan being brothers inter se as well as the brothers of the vendor had equal right and the plaintiff's suit should, therefore, fail. On issue No. 6, the learned trial Judge held. that the entire amount of Rs. 700 was paid in presence of the Sub‑Registrar, and consequently it was the amount which was fixed in good faith and paid. On issue No.7, basing his judgment on the statement of the Patwari, he held that the market price of the land was Rs. 223/15/0. As a consequence of his discussion on issue No. 5, he found the plaintiff not entitled to exercises his right of pre‑emption, and he, therefore, dismissed his suit with costs. The plaintiff went up on appeal against this judgment, which was dismissed by the learned Additional judge on 31st August 1950. The plaintiff has now come up on revision to this Court. The first point which has been argued before me is whe ther the sale by Kundal Khan on behalf of his minor nephews in favour of Azim Khan was valid. It is an established law that a de facto guardian of the Muslim minors has no power to transfer any right or interest in the immovable property of the minors, and if he does so, the transfer is not merely voidable but absolutely void. It was urged on behalf of the defendants, and has been found by the two Courts below, that Kundal Khan had purchased the property in the names of the minors, and he was on account of that reason entitled to sell it away. I do not, see any force in this contention, because it is possible that Kundal Khan may have purchased the property with the minors' money, but even if he did not, still I do not think that the 'mere fact that he purchased the property for the minors would entitle him to sell away the property, or the Courts would be competent to depart from the well estab lished law laid down above. I am also unable to subscribe to the view expressed by the learned counsel for the defendant as well as the two Courts below that if a de' facto guardian sells away the 'minors' property it would be a valid sale if it is done for the benefit of the minors. Neither the two Courts below, nor the learned counsel for the defendant has been able to quote any authority in support of the above view. The Muslim law does not recognize a de facto guardian at all. He is the person who voluntarily puts himself in charge of the person and property of the minor, but has no legal sanction behind him. Under the circumstances he cannot possibly be held to be competent to deal with the minor's property, even if it is in minors interest. The Muslim law very zealously guards the interest of the minor, and the Holy Quran has at more than one place given very great prominence to the minors and their interest in the property. In view of this prominence it is impossible to even imagine that the de facto guardian would be given a power to arbitrarily decide as to what would be the interest of the minor, and then to deal with his property on that basis. I am firmly of the opinion that under the Muslim Law a de facto guardian has under no circumstance any power to alienate the minor's property in any form. The next question which requires determination 'in the case is whether the second sale in favour of Azim Khan is a genuine document. Under the Pre‑emption Law a vendee has got a right to secure another pre‑emptor and transfer the property on to him out of Court. This is based on the princi ple that the right of pre‑emption can be defeated by any legiti mate means, but then the transfer must be real and genuine one and must be in exercise of the right of pre‑emption and must conform to the laws of pre‑emption. It is necessary that the original vendee should finally and as a matter of fact part with the property and the person in whose favour it is sold should acquire it and become the owner thereof. A distinc tion, therefore, has got to be made between the transfer which is effected for the purpose of defeating the pre‑emptor and the one which is absolutely fictitious and sham. While the first transfer would be perfectly valid and legal, the second would be absolutely ineffective so far as the pre‑emptor is concerned. If the parties enter into any sham and unreal transaction they would certainly take very great care that nothing should happen as to excite suspicion about the genuineness of the sale. The Courts, however, have to go very deeply into such transactions and from all the available material on the record come to the conclusion whether the transfer is meant to defeat the pre‑emptor and is a real one, or it is just a cloak adopted to defeat the perfectly legitimate right of a pre‑emptor. In the case before me the first sale, as has already been noticed, took place on 25th September 1948. The deed was registered on 28th September 1948. Azim Khan did not give any notice to the parties to the above sale that he wanted to bring a pre‑emp tion suit. It may be noted that Nisar Ahmad and Nazir Ahmad etc. did mention in their written statements that Azim Khan had given a notice that he was going to pre‑empt the sale. This fact was not alleged by Azim Khan m his defence. When he however appeared in the witness box he stated that a register ed notice was given by him, but then when he was asked if he could produce the postal receipt of that notice, he kept quiet and inquired from Kundal Khan as to what reply he should give. The non‑production of the postal receipt and the attitude which Azim Khan adopted at the time of his examination lead one to an irresistible conclusion that. no such notice was given. Azim Khan thus did not give them any notice, and yet on; the 26th of September; 1949, Abdul Hai etc. suddenly thought that Azim Khan might bring a suit for pre‑emption and they should therefore execute the deed transferring the property in suit in his favour. The stamp‑paper on which the deed was written, has been produced today before me by Mr. Khwaja-Muhammad Khan. It was purchased on 11th September 1949, by Abdul Hai and it was noted thereon that it was purchased for selling the property for Rs. 700 in favour of one Khanan Khan: According to the statements of the parties recorded today this Khanan Khan is the son of Arjali, the original vendor. It appears that when the vendees came to know that Mussali Khan was going to institute a suit, they first wanted to trans fer the property fictitiously in favour of Khanan Khan, but then perhaps Khanan Khan did not agree to become a party to the fraud and so they got hold of Azim Khan and transferred the property to him. On the deed the words "Khanan Khan" were cancelled, and Azim Khan substituted therefor. In the deed it was noted that the amount was paid in presence of the witnesses. If it was a genuine document and the sale was a real one, I fail to understand why should the amount have not been paid before the Sub‑Registrar as Kundal Khan etc. had done in case of the first sale. Again there is no evidence that the possession of the property was delivered to Azim Khan: All these circumstances lead me to the conclusion that the sale in favour of Azim Khan was a sham transaction and had been resorted to for deterring Mussali Khan's claim. The judgments of the two Courts below on this point are vitiated on account of the fact that they did not take into consideration .the cir cumstances attending the second sale, which have been set forth above. This entitles me to disturb the concurrent finding of the two Courts below. I, therefore, hold that the sale in favour of Azim Khan is a sham and fraudulent transaction, and has absolutely no effect on the rights of Mussali Khan. The defendants have not urged‑before me that the plaint iff has waived his right of pre‑emption, or his suit is not within time. The perusal of the evidence would clearly show that the suit was brought within one year and no evidence has been led to prove that the plaintiff his given up his right to bring a pre‑emption suit. Under the circumstances I think Mussali Khan was clearly entitled to, a decree for possession by pre‑emption of the suit property. The next question is with regard to the amount for which the sale has been effected. The plaintiff alleged that the sale was effected only in lieu of Rs. 520, and that Rs.. 700 were mentioned in the deed simply to deter the prospective pre‑emptors from instituting a suit for pre‑emption. I am afraid I am not prepared to accept this contention of the plaintiff. Rs. 700 were paid before the Sub‑Registrar, and there is no evidence on the record showing that any amount out of this sum was returned to the vendees after it had once been paid. I, consequently hold that Rs. 700 were fixed in good faith and were actually paid. The result is that I accept the revision petition, set aside the judgments and decrees of the two Courts below and grant plaintiff a decree with costs throughout for possession by pre‑emption of the suit land' on payment of Rs.

700. This amount if it has not already been paid in Court shall be deposited by the plaintiff within one month of this order, failing which his suit shall stand dismissed with costs throughout. K. M. A. Revision Accepted.