2007 PLP 1275 (SCMR)

SARDAR NLUHAMMAD RAZA KHAN, J.

By setting aside the concurrent finding dated 22-9-1985 of Civil Judge 1st Class, Ferozewala and dated 11-10-1997 of Additional District Judge, Sheikhupura, the learned Judge in Chambers of Lahore High Court vide judgment dated 20-12-2000 non-suited the petitioner Muhammad Nazir Ahmed.

2. One Nizam Din an Advocate by profession gifted away the suit-land to Tariq Mehmood and Pervaiz Akhtar through registered gift deed dated 5-2-1978. Appellant Zaheer Ahmed pre-empted the aforesaid transaction calling it to be a sale and further alleging that the transaction was a gift in disguise in order to damage the pre-emption right of the plaintiff. The learned trial Court and so the learned First Appellate Court, in the light of evidence on record, considered in their opinion, the transaction in question as sale and decreed the suit of pre-emption. The learned High Court took a contrary view and non-suited the pre-emptor, holding that the transaction was a genuine gift and hence not pre emptible.

3. It is a matter of common knowledge that in such-like suits of pre-emption against a transaction purporting to be a gift, the burden lies squarely on the pre-emptor to prove that it is a sale. The amount of consideration either paid or partly paid or promised to be paid are a few questions of fact, which require to be proved in connection with a sale. The striking of bargain and the fixation of consideration are further questions of fact that lead to the completion of a sale. Not an iota of evidence was produced by the pre-emptor to prove any of the aforesaid acts and hence there was no occasion at all for the first two Courts to hold the transaction a sale instead of gift.

4. The gift has been undone on the grounds only of attending circumstances, which too are of presumptive nature. Bringing into consideration of such circumstances is tantamount to placing the burden on the defendant/vendee to prove the gift. This is all the more unwarranted when the pre-emptor did not make an effort even to shift the burden to the defendant. Both the Courts below had wrongly placed the incident of burden of proof and thus, the learned High Court was right in setting aside the judgment, involving a point of law, in second appeal under section 100, C.P.C.

5. The main grievance of .the plaintiff/pre-emptor was that the transaction has been done in order to disinherit the pre-emptor who was prospective heir of Nizam Din, being his nephew. Had this been a consideration in the mind of the donor to disinherit the pre-emptor, he could have equally well sold the property in favour of the defendant. The fact that he gifted away the property in order to ward of any pre-emption suit, is hardly illegal or irregular because a device to avoid pre-emption is permissible provided it is not a disguise.

6. There are strong circumstances on record to hold that the gift in question is a genuine gift, as such, and also genuine if made to avoid pre-emption. There is overwhelming evidence on record to show that the donor was an unmarried issueless person with no parents, brothers or sisters. That the respondents have been rendering service to him and have been taking care of him. It is also on record that the respondents and the donor, both belonged to Shia sect. All these can be taken to be valid grounds for making a gift.

7. The remaining property of Nizam Din, measuring 194 Kanals was sold by him to one Haji Muhammad Din. This was never pre-empted or challenged by the respondents. If the owner had any mala fides towards the pre-emptors, he could have given this sale, also a colour of gift. In brief, the gift in the instant case could not be turned down on the basis of attending circumstances, that never existed provenly and were merely presumptive.

8. In the circumstances, no exception could be taken to the impugned judgment. As the error or defect discovered in the concurrent findings was of substantial character pertaining to the procedure provided by law, the learned High Court could interfere, as held by this Court in case of Madan Gopal's case PLD 1969 SC 617 and that of Mst. Bibi Jan's case PLD 1975 SC

295. There being no force in the appeal, it is hereby dismissed. S.M.B./M-158/SC Appeal dismissed.