P (PLP)

The following issues were framed by the trial Court :‑-- l. Whether the property in question consists of houses and garden and not land. If so, with what effect ?

2. Whether the transaction in question is a sale and as such pre‑emptible ?

3. If issue No. 2 is found in favour of the plaintiffs, what is its market value ?

4. Are the plaintiffs and defendant No. 2 governed by custom in matters of alienation ?

5. Is the property in dispute. ancestral ?

6. Was the alienation made for consideration and legal necessity.?

7. Whether the transaction was for charitable purposes and is permitted by custom ? There is a note of the trial Court that the counsel for defendant No. I (the transferee) says that he does not claim the alienation to be for consideration and legal necessity, but for charitable purposes. It was admitted by both parties that the land in question was mort gaged before it was transferred to Nazir Ahmad Sajjadanashin and that he paid off the mortgage money and obtained possession of the property. The trial Court held that the gift at its inception was of the equity of redemption only. Issue No. 1 was not pressed and decided against the defendants. The storm centred round issue No. 2 whether the alienation was a gift or a sale. In the opinion of the trial Court, the transfer deed showed that it was a gift out and out. The learned counsel for the plaintiffs, therefore, prayed that he may be permitted to show that it was a gift with consideration, i.e., a hiba‑bit‑iwaz and as such, having all the incidents of a sale, was pre‑emptible. The trial Court held that it was a new plea which could not be allowed at the time of arguing the case. The plaint was very carefully considered and it was found that there was no suggestion in it that the transaction in questio4 was a hiba‑bit‑iwaz. The defendant was not given any notice of this ground by the plaintiffs in their pleadings and the defendant had, therefore, no opportunity of controverting it in his pleadings or in his evidence. The plea of hiba‑bit‑iwaz was, therefore, dis allowed. Alif Din, the father of the plaintiffs, was examined as a witness by the .plaintiffs and he made a complete volte‑face by saying that‑ the transfer was a sale for consideration and was given the garb of a gift to defeat the right of pre‑emptors. His evidence was, however, discredited on account of his interest in the plaintiffs. As there was no other evidence to show that the transfer was made in exchange for a price paid or promised, it was held not to be a sale. As regards issue No. 3, the report of the Local Commissioner that the value of the property in dispute was Rs. 9,000 was accepted as correct. Issue No. 4 was decided in favour of the plaintiffs and they were held to be agriculturists governed by customary law in matters of alienation. Issue No. 5 was decided against the plaintiffs and the land trans ferred by Alif Din to Nazir Ahmad Sajjadanashin was held to be non‑ancestral. Issue No. 6 lost its importance in view of the findings given above and was not pressed by the parties. On issue No. 7, whether the transaction was for charitable purposes and permitted by custom, the trial Court found that the answer to Question No. 47 of the Customary Law of Rawalpindi District whether a man having hairs can alienate a certain part of his landed or immovable property for charitable purposes was in the affirmative and it was further found that the property transferred by Alif Din was not even a substantial portion of what he owned. The transfer was, therefore, held to be a gift for religious purposes and valid according to customary law. The suit of the plaintiffs was dismissed and he parties were ordered to bear their own costs. In appeal, the plaintiff appellants did not even urge that the transfer was a sale within the meaning of section 54 of the Transfer of Property Act but it was contended that the word "sale" used in the plaint included hiba‑bit‑iwaz and reliance was placed on para. 141 of Mulla's Muhammadan Law, Twelfth Edition, (1944) where it is stated that a gift for consideration is in reality a sale. It was further contended on behalf of the appellants that the trial Court had erred in disallowing the plea of hiba‑bit‑iwaz from being raised in the course of arguments. Several cases were cited by the counsel for the parties and the learned Appellate Court arrived at the finding that the sale alleged in the plaint was stated to be for a cash price of Rs. 6,500 and the plea of hiba‑bit‑iwaz, on the ground that the transferee had paid the amount of the mortgage charge to the mortgagee before taking possession of the property, was inconsistent with the original plea of sale in consideration of a specified price. The decision of the trial Court was, therefore, upheld in appeal. In this second appeal, the learned counsel for the appellants has conceded that there is no evidence to show that the land in dispute was sold for Rs. 6,

500. He contends that the alienor was in debt to the extent of Rs. 3,350 for which this land was mortgaged with possession and the alienee had to pay this amount to the mortgagees before he could take possession. In my view, the payment of the mortgage charge does not make the gift a hiba‑bit‑iwaz. It is in evidence that the property alienated is worth Rs. 9,000 and the gift made by the alienor was of property worth the balance of its market value after payment of the mortgage money. In other words, it was a gift of the equity of redemption without any consideration. It is, however, not neces sary to decide this point because the plea of hiba‑bit‑iwaz was not allowed either by the trial Court or the Appellate Court and, in my view, was rightly disallowed. The object of pleadings, as held by the Privy Council in Karam Chand v. Mir Ahmad etc, (A. I. R. 1938 P. C. 121), is to give fair notice to each party of what his opponent's case is. No notice was given to the defendant in the pleadings of the plaintiffs that the alienation was impugned as a hiba‑bit‑iwaz. In Nathu Piraja Marwadi v. Umedmal Gadumal (I. L. R. 33 Bom: 35) it was observed that the Courts should check the tendency of defeated litigants to evade their defeat by devising a new case which was never set up when it should have been ; and that a Court of appeal is not justified in exposing a party, after he has obtained his decree, to the brunt of a new attack of which he had never had notice during the hearing of the .suit. In River Steam Navigation Co. v. Owners and Parties interested in S. S. "Janardan" (A. I. R. 1939 Cal. 513) it was said that the rule that proof must not be at variance with pleadings and that a party must state in his pleadings the material facts on which his case rests and, in order to succeed, must prove those material facts must always remain one of the essentials of legal procedure. In Haji Fagir Bux v. Pandit Thakur Prasad (A. I. R. 1941 Oudh 457) it was observed at page 464 of the report that the practice of introducing obscure pleadings, with a view to taking the adversary by surprise, is open to grave objection and is not unoften likely to lead to grave miscarriage of justice. In Dammu Vighnesam v. Varanasi Lakshmi Narasingha Murty (A. I. R. 1940 Pat. 187) the principle was said to be established, by a number of decisions of the Privy Council, that a Court should be careful to see that cases are decided in accordance with the pleadings or upon facts proved at the trial which are consistent with the pleadings. Any variation between pleadings and proof ought to be carefully watched to see that the opposite party is not taken by surprise. It is not necessary to cite any more cases on this point as I am satisfied that the decision arrived at by the Courts below was correct. I, therefore, refuse to interfere with that decisions and dismiss the appeal with costs. K.M.A Appeal dismissed.