P L D 1954 Lahore 541 (PLP)

AKHLAQUE HUSAIN, J.‑One Fazal Ilahi sold the land in dispute to Gilani Bakhsh, the father of the plaint iff6respon dent Muhammad Aslam, on the 8th of June 1951. The con sideration in the sale‑deed, Exh. D. 1, is stated to be Rs. 1,

500. Muhammad Din, a paternal‑cousin of Fazal Ilahi, purchased the land in suit for Rs. 1,500 from Gilani Bakhsh on the 1st of April 1952. On the 23rd of December 1952, Muhammad Aslam brought the present suit to, pre‑empt the sale in favour of the defendant‑appellant, Muhammad Din, by his father. Admittedly, the appellant was entitled to pre‑empt the, sale by Fazal Ilahi in favour of Gilani Bakhsh and his defence to the present suit is that the effect of they sale‑deed in his favour was to substitute him in place of Gilani Bakhsh as the vendee qua the sale‑deed of the 8th of June 1951 by Fazal Ilahi and, therefore, the sale of 1st of April 1952 in his favour is not pre‑emptible by the plaintiff‑respondent as it is not an inde pendent sale. It is ‑not denied by the plaintiff‑respondent that if the effect of the sale of the 1st of April was as alleged by the defendant his suit cannot succeed. The Court of first instance dismissed the suit, but on appeal the learned Senior Civil judge, reversing the judgment and decree of the trial Court, decreed it. The present appeal has been filed, by the defendant against the judgment and decree of the lower appellate Court. The lower appellate Court decreed the suit on the sole ground that the defendant had not satisfactorily proved that he had purchased the land from Gilani Bakhsh " in the exercise of his pre‑emptive right." I do not find anything in the Punjab Pre‑emption Act to justify the proposition of law upon which the Court below has based its judgment. The question of active assertion and exercise of the right of pre‑emption by a person arises when either the vendee takes the purchase in defiance of the superior right of another person to pre‑empt or when the vendee, having purchased the land in ignorance of that right, refuses to recognise and honour it. Where the vendee amicably agrees to transfer the property purchased by him to a person entitled to pre‑empt that purchase, it is not required by any provision in the Pre‑emption Act that in such a case the pre‑emptor can take the property only after having asserted and exercised his right of pre-emption. Obviously, when a person conveys the land to another person who is entitled to it, the conveyance must be presumed to have been made in recognition of that right. Learned lower Court was\much influenced by the state ment of the plaintiff's father that he had really purchased the land in dispute from Fazal Ilahi for Rs. 1,115 and not for Rs. 1,500 as stated in the sale‑deed and that he had sold it to the defendant for profit.' In the first place, there is no evidence on the record to show that the defendant was aware of this fact and, secondly, even if he knew of it, there is nothing in law or in principle to prevent a pre‑emptor from paying more to the vendee than the price which the latter had paid himself. Learned counsel for the respondent has vehemently contended that when the pre‑emptor has paid more, he cannot be considered to have exercised his right of pre‑emption because pre‑emption has always been regarded as equivalent to substitution and there can be no substitution when the vendee does not convey the property to the pre-emptor for the actual price for which he has himself purchased. It is true that in a suit for pre‑emption the right of the pre-emptor is enforced on payment of the actual price paid by the vendee, but the Pre‑emption Act nowhere provides that if the vendor privately conveys the property to the pre‑emptor the transaction cannot be considered to have been made in recognition of the right of pre‑emption if the pre‑emptor willingly 'pays snore than what the vendee himself .has paid for the property. Section 4 of the Act defines the right of pre‑emption thus :‑ "The right of pre‑emption shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons ........................... It will be seen that the right of pre‑emption means only the right to acquire a certain property in preference to other persons. This right when it comes to be enforced by a Court of law most be enforced on the terms of the sale which is sought to be pre‑empted ; but there is no bar to the modifi cation of those terms by mutual agreement. Another circumstance relied upon by the lower appellate Court is that the defendant before purchasing the property from Gilani Bakhsh did not give the latter any notice calling upon him to resell the land. The short answer to this argu ment is that no such notice was required by law. Nor, as the learned Senior Civil Judge seems to think, was it necessary to mention in the sale‑deed that the defendant was purchasing the land in exercise of his right of pre‑emption. Mr. Mahmud Ali for the respondent has strongly relied upon the ruling in Fazal Din v. Lail Singh reported in (20 I C 843,). The following passage in the judgment of that case at first sight appears to support the respondent's contention :‑ "There is no evidence on the record to show the after the original sale in favour of Lal Singh, his father Dyal Singh asserted his right of pre‑emption in respect of the property in suit, and that it was in recognition of his right of pre‑emption, that Lal Singh resold, the property to him." But the point in that case was entirely different from the one involved in the present case. In Fazal Din's case, the question was whether the resale by the vendee to his own father was real or fictitious. The lower appellate Court had found that it was fictitious and the observations in the above‑noted passage were made in support of that finding of fact. The circumstance whether the second vendee purchased the property from the first vendee in the exercise of his right of pre‑emption may be relevant in deciding whether the deed is fictitious or not; but in a case where there is no doubt the genuine nature of the sale, the right of the second vendee to pre‑empt the first sale cannot be defeat ed on the, mere ground that he had not taken the sale from the first vendee by explicitly getting it recorded in the sale‑deed that he was entering into the transaction in the exercise of his right of pre‑emption. Din Muhammad, J. in deciding the case of Pandit Harbhagwan DW v. Sardar Partap Singh (A I R 1938 Lah. 242.) observed :‑ "I am unable to distinguish between cases where the re‑sale takes place in exercise of a pre‑emptive right and those where the re‑sale takes place without an assertion of his right by the subsequent vendee, because in my view the effect in both cases is the same, that is the purchase of the land in suit by person possessing a right equal or superior to that of the pre‑emptor and, in these circumstances, the fact that the purchase takes place in assertion of the right or otherwise is immaterial." With these observations, I respectfully agree. The learned Judge has correctly stated the true legal position. regarding the contention of the plaintiff‑respondent, " The only ways in which the plaintiff‑respondent could have defeated the appellant in this case were by proving either that the sale in favour of the latter was fictitious ; or that the latter was estopped from setting up the plea that he had taken the sale as he was entitled to pre‑empt the first sale, or by proving Waiver on his part. There can be no doubt that a person may under appropriate circumstances be estopped from claiming a certain right. So far, however, as the question of waiver is concerned, the position is not as clear. According to the Punjab Pre‑emption Act, the right of pre‑emption can be extinguished only when the pre‑emptor is a party to a sale by joint‑owners (section 10) or when on receiving a notice under section 19, he fails to notify the intending vendor through Court of his intention to enforce his right of pre‑emption within the time prescribed by section 20 of the Act. Apart from these two sections the Pre‑emption Act does not provide for the applicability of the doctrine of waiver to the right of pre‑emption. This doctrine, however, finds a very conspicuous place in the Muslim Law of Pre‑emption and has by analogy been extended by Courts in India and Pakistan even to cases to which the Muslim Law of Pre‑emption as such is not applicable. There is, however, no authority for applying the Muslim Law doctrine of waiver in its entirety to cases not governed by Muslim Law. To the latter category of cases, the doctrine has been applied only to this extent that a pre‑emptor is deemed to have waived his right of pre‑emption only when he has by his conduct reasonably demonstrated his intention to waive his right. Mere silence or non‑assertion of right, in so far as it is compatible with an intention not to waive the right, can never amount to waiver. Here in this case neither estoppel nor waiver was ever pleaded or urged either in the Courts below or at the hearing before me. For the foregoing reasons, I accept this appeal, set aside the judgment and decree of the lower appellate Court and uphold the decree passed by the Court of first instance. The defendant‑appellant would have his costs throughout. A. H. Appeal accepted