1985 PLP 1425 (SCMR)

S. Wazir Muhammad, Advocate‑on‑Record for Respondent No 1 Respondents Mos. 2 to 9: Ex parte. Date of hearing: 16th April, 1985. MIAN BURHANUDDIN KHAN, J.‑‑ Mrs. M.U. Khattak pre‑empted the sale of land in favour of Khalid Ahmad and Abdul Matin on the grounds of co‑ownership, contiguity and participation in appendages and immunities. Both the defendants/ respondents Nos.2 and 3 claimed to have gifted the suit land to Syed Muhammad Ayub and others. The latter sold the land to Khanzada Safiullah Khan and all of them were impleaded as defendants in the suit. They contested the suit on various grounds amply reflected in the issues framed by the learned trial Court. After recording the evidence the suit was dismissed by the learned Senior Civil Judge, Peshawar on 8‑1‑1975. 2. The plaintiffs filed an appeal before the learned District Judge who set aside the findings of the lower Court on issues Nos. 1 to‑ 4 and 6 and framed an additional issue and remanded the case under Order XLI, rule 25 and section 151, C.P.C. per his order, dated 10‑11‑1977. Aggrieved from the said judgment and decree the legal representative of defendant Safiullah Khan filed revision in the Peshawar High Court which was dismissed vide the impugned judgment dated 30th September, 1981. 3. The learned trial Court had come to the conclusion that the gift of the suit land by defendants Nos. 3 to 8 and the sale by them to defendant No. 9 were links of the same chain to defeat the right of the pre‑emptor, and, as such the latter had no superior right of pre‑emption. The learned first appellate Court was of the view that defendants Nos. 1 and 2 could not validly gift the suit land to defendants Nos. 3 to 8 and the sale by them in favour of defendant No.9 was bad in law. 4. The learned High Court Judge observed that the gift of the suit land by defendants Nos. 1 and 2 in favour of defendants Nos. 3 to 8 was not a valid transaction so as to defeat the pre‑emption suit. Such a question came up for consideration in Gul Muhammad Khan and another v . Dilawar Khan and others P L D 1955 Pesh. 76 and the word 'transfer' in section 17 of the N.‑W.F.P. Pre‑emption Act was interpreted to mean sale and no other form of conveyance. It was observed. "A vendee, therefore, by gifting away the property in favour of his own father, even if the latter had a superior right of pre‑emption and the gift was real and genuine, could not non‑suit the plaintiff." The learned Judge further held that it is contemplated by section 17 (ibid) no suit for pre‑emption shall lie where the purchaser has, prior to the institution of such suit, transferred the property in dispute to a person having a right of pre‑emption equal or superior to that of the plaintiff. It is envisaged by section 16 that no decree for pre‑emption shall be passed in favour of any person unless hp has a subsisting right of pre‑emption et the time of the decree. The explanation added to the section, shows that no pre‑emptor shall be deemed to have lost a subsisting right of pre‑emption by reason of the fact that the vendee has, after the expiry of the period of limitation provided for a suit for pre‑emption, transferred the property in dispute, to a person having a right of pre‑emption equal or superior to that of the pre‑emptor. It was open to vendee/defendants Nos. 1 and 2 to defeat the pre‑emption suit by way of sale to another person who had a right superior to or equal with the pre‑emptor. They gifted the suit land to their kith and kins the defendants Nos. 3 to 8, and did not transfer to them by way of sale. It being so, the gift was bad in the eye of law and could not non‑suit the pre‑emptor. As it was not a valid transaction affecting the rights of the pre‑emptor, the sale of the suit land by defendants Nos. 3 to 8 would be of no avail and shall not have the effect of substituting the subsequent transferee in place of the vendees in the original bargain. 5. Leave was granted by this Court, per order, dated 13‑11‑1982 on the ground that transfer by way of sale is the only mode recognized for 'transfer' contemplated by section 17 of the N.‑W.F.P. Pre‑emption Act, 1950 and this term does not cover transfer by way of gift is too narrow an interpretation of the word 'transfer' used in the said Act, because a transfer by gift is also a recognized mode of transfer of immovable property under the provisions of the Transfer of Property Act, 1882. 6. Learned counsel contended that the learned Single Judge of the Peshawar High Court has, in his impugned Judgment, made out a new case not arising out of the pleadings of the parties or by their evidence or even by their arguments in the lower Courts in observing that the gift in favour of defendants Nos. 3 to 8 is illegal and void especially when he was acting within his limited jurisdiction under section 115, C.P.C. that as a matter of fact it is clear from the evidence on the record that the vendees and the donees were the members of a joint family in broad sense and not in the sense of Hindu Law and, therefore, the sale in favour of the appellant .in recognition of his right of pre‑emption was in substance made by the original vendees themselves' and with their consent but at least the donees having no right of pre‑emption had acted as representatives of original vendees in transferring the land in dispute by way of sale within the period of limitation of one year in recognition of his right of pre‑emption and it is legally permissible; that if the right of the plaintiff /respondent in whose favour the decree for pre‑emption is passed can get the land in dispute from the donees of the vendees than on the same reasoning there can be no legal defect or hurdle in the way of appellant in getting the land by way of sale from the said donees from whom the plaintiff /respondent got the land by the decree of Court. 7. On going through the cited case Gul Muhammad Khan and another v. Dilawar Khan and others P L D 1955 Pesh. 76 we consider that this case is not applicable to the facts of the present case. Herein the donees had transferred the suit property to a person who had equal or superior right to that of pre‑emptor within the period of limitation and as such validity of gift in favour of respondents Nos. 3 to 8 is not involved in the instant case. It has been held in a volume of authorities that the plaintiff, in order to succeed, must preserve his superiority intact not only on the date of suit but also on the date of decree and if his superiority to purchase the property in preference to the defendant/ vendee or his assigns or heirs, is lost at the date of decree, his suit for pre‑emption must be defeated. Thus we allow this appeal with costs. M . B . A . Appeal allowed.