1994SCMR 2015 (PLP)

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Right of pre‑emption‑‑ Plea raised was that in terms of S. 4, Punjab Pre‑emption Act, 1913, Courts could only examine as to whether or not the complexion given to a transaction other than that of sale, was really a sale and that to explore into the nature of transaction as to whether it was Benami or not was not within their competence and that right of pre‑emption has to be exercised against the persons mentioned as transferees in the sale‑deed‑‑‑Prima facie latter part of provision of S. 4, Punjab Pre‑emption Act, 1913, was merely an enabling provision which did not control earlier part thereof, but since issue raised on behalf of petitioner being of first impression, on which there was no reported judgment of Supreme Court, leave was granted for detailed examination of the plea raised in petition. Muhabir v. Khargi AIR 1927 Oudh 508 rel. Ch. Khurshid Ahmad, Advocate Supreme Court instructed by Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioner. Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Respondents. Date of hearing: 6th February, 1993. MUHAMMAD AFZAL LONE, J.‑‑‑This order deals with Civil Petitions Nos. 205/L to 220/L of 1992, which are directed against the High Court's same judgment dated 24‑11‑1990, rendered in revisions, and arise out of the pre‑emption suits brought by the petitioner against Zakir Hussain (C.Ps. 205‑206‑L/92), Muhammad Ismail (C.Ps. 207‑208‑L/92), Muhammad Hussain (C.Ps. 209‑210‑L/92), Khadim Hussain (C.Ps. 211‑213‑L/92), Muhammad Naeem (C.Ps. 214‑215‑L/92), Muhammad Saleem (C.Ps. 216‑217‑L/92) and Muhammad Amin (C.Ps. 218‑220‑L/92), all minors, sons of Ahmad Ali, Ghulam Muhammad, Mst. Sakina Bibi, Ahmad Ali, Ghulam Muhammad, respectively. The common defence put forth in the written statements, on behalf of the minors, was that they were Benamidars for their respective fathers, who were the real owners of the land, meaning thereby that in reality there being no sale in favour of the minor sons, the suits could not proceed against them. The trial Court did not accept this plea and decreed the suits, but the First Appellate Court held that the minors were merely name lenders and the real vendees were their respective fathers. With this finding the High Court did not differ, resulting in dismissal of the revision petitions brought by the pre‑emptor petitioner.

2. Learned counsel for the petitioner does not dispute the correctness of finding of fact that the minors are merely Benamidars, but contends that in view of the expression "nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in effect a sale", appearing in latter part of section 4 of Punjab Pre‑emption Act, 1913, the Courts could only examine as to whether or not the complexion given to a transaction other than that of sale, was really a sale and that to explore into the nature of transaction as to whether it was Benami or not was not within their competence. In his submissions the right of pre‑emption has to be exercised against the persons mentioned as transferees in the sale‑deed. Reliance is placed on Muhabir v. Khargi (AIR 1927 Oudh 508).

3. Prima facie the latter part of section 4 reproduced above is merely an enabling provision which does not control the earlier part thereof, but since the issue raised by the learned counsel for the petitioner is of first impression, on which seemingly there is no reported judgment of this Court, leave is granted for detailed examination of the‑question raised by the learned counsel. A.A./M‑1969/S Leave granted.