Sale

If ownership of goods is exchanged for anything other than money, such transaction cannot be classified as a sale; instead, it would be considered an exchange or barter.

If ownership of goods is exchanged for anything other than money, such transaction cannot be classified as a sale; instead, it would be considered an exchange or barter.

Petitioners-plaintiffs claimed to be owners in possession of suit land on the basis of sale in favour of their predecessors-in-interest

Petitioners-plaintiffs also assailed cancellation of mutations entered in their favour

Trial Court as well as Lower Appellate Court concurrently dismissed suit and appeal filed by petitioners-plaintiffs

Validity

Parties to alleged bargain had departed to eternal life and were no more in the world, during their life time, neither petitioners-plaintiffs nor their predecessors claimed ownership of property

Deceased parties did not enter and attest any mutation as a result of any bargain or sale nor reduced it in black and white

No witness was on record in whose presence sale consideration was paid either to respondents-defendants or their predecessor

Sale as alleged by petitioners-plaintiffs was not a sale in the eyes of law

Concurrent findings of facts could only be interfered with when petitioners-plaintiffs would succeeded to show some misapplication of law or misreading or non-reading of evidence on the part of Courts below

High Court declined to interfere in concurrent findings of facts as there was no such flaw or misapplication of law pointed out in judgments and decrees passed by two Courts below

Revision was dismissed, in circumstances.

Second sale deed could not be registered in presence of a sale deed qua a property and if it was done then the junior vendee had to suffer when he was aware with regard to pendency of proceedings before a court of law qua the same property.

In absence of payment of consideration "sale" did not become complete and where vendee has failed in proving payment of consideration or due diligence before taking title, he could not claim protection available to bona fide owner.

Ingredients of sale transaction to be proved were; sale by seller in favour of purchaser, fixation of sale consideration as well as receipt of the same, delivery of possession of transferred property to the purchaser and marginal witnesses.

Property having value of more than Rs. 100 could be transferred only through registered instrument and without the same no valid and legal title vested in the purchaser

Purchaser of property could not claim any title as a owner of the property on the basis of unregistered document

Agreement to sell did not create or propose to create any right or interest in the property.

Consideration of sale could not be ignored.

Gift was not pre-emptable.

Suit land was mutated in favour of two vendees separately but pre-emptor assailed a mutation allegedly entered in the name vendees jointly, attested on the same date when separate mutations were attested

Trial Court and Lower Appellate Court concurrently decreed the suit and appeal in favour of pre-emptor

Validity

Both the courts below had rightly found that when valid mutations were entered in favour of separate vendees which were compared and even fees were paid, then there was no occasion to cancel those mutations and enter and sanction with regard to same property joint sale mutation on the same day and date

Such joint mutation was entered with the connivance of revenue staff as well as pre-emptor who had become beneficiary of disputed mutation

When both the courts declared that no sale had taken place through disputed mutation then suit could not have been decreed in favour of pre-emptor

Findings of both the courts below were contradictory one to that extent when at one side they found that no sale took place through disputed mutation and on the other side they had decreed the suit

View of both the courts was wrong as provisions of Art. 120 of Limitation Act, 1908, were not applicable and the case was covered under S. 30 of Punjab Pre-emption Act, 1913, wherein limitation had been given one year for filing of suit

High Court, in exercise of revisional jurisdiction, reversed findings recorded by both the courts below against vendees and suit filed by pre-emptor was dismissed

Revision was allowed in circum-stances.

Sale may have been completed earlier and attestation of its mutation would merely be its manifestation.

Principles.

"Sale" means permanent transfer of the ownership of an immovable property in exchange for valuable consideration and includes transfer of immovable property by way of Hiba-bil-Iwaz or Hiba-bil-Shart-al-Iwaz.

No indication in the definition of "sale" under S. 3(5) of Punjab Pre-emption Act, 1913, that if a law permits sale without registration, it is not to be treated as sale for purpose of pre-emption.

Disputed sale was made on the basis of general power of attorney execution of which was denied by the plaintiff in the suit

Neither the attorney appeared in the Trial Court nor the power of attorney was produced

Person who identified the executant at the time of execution of the power of attorney did not appear in the Trial Court as witness

Appellate Court decreed the suit filed by the plaintiff

Contention of the defendant was that the provisions of S.54 of Transfer of Property Act, 1882, were not applicable to the area comprising of the former State of Bahawalpur on 22-3-1973 when the disputed mutation was sanctioned

Validity

Provisions of S.54 of Transfer of Property Act, 1882, were applicable to the area comprising of the former State of Bahawalpur

Where the sale was not effected through registered instrument the same was ineffective on the rights of the plaintiff

Appellate Court had exercised its jurisdiction legally, fairly and in a just and proper manner

High Court declined to interfere with the judgment passed by the Appellate Court.

Mere recital in the sale-deed, as regards delivery of possession, in itself was no effective proof of such delivery.

He who seeks equity must do equity.

absence of any agreement or receipt why regard to such transaction, the quality of evidence has to be of convincing nature, free of inconsistencies and discrepancies.

Transfer of ownership in exchange for a price paid or promised or part-paid or part-promised constitutes sale.

Applicant who claimed to be a bona fide purchaser of property in question from respondent A and other respondents contested the suit

Sufficient evidence existing on record to prove execution of sale agreement in favour of respondent H

Fact that H was put into possession was proved from revenue record in addition to oral evidence

Plea taken by A before Trial Court, was that he had not put his thumb-impression on sale agreement which plea was found false on basis of evidence of Finger Print Expert

Applicant, held, was not bona fide purchaser under registered sale-deed, in circumstances.

Terms and conditions of sale??Variance of??Requirements??Court, held, could not vary terms and conditions of sale except with consent of parties.

Sale-deed would be illegal.

Record showed that donee was not related to the donor rather belonged to ; different village and tehsil and there was nothing to show that donor was, in any way, so obliged to the donee that she could give him b, gift such a valuable property

Fact that donor had adopted the done as a son had also not been established

Donor, held, had in sold the lands to donee but in order to frustrate the right of respondent transactions were given the colour of gift.

[Muhammadar Law].

If the sale could not be completed without registration, possession obtained before registration of the sale could not be under the "sale"

Suit being within one year of the registration of the deed of sale, held, was within time, possession obtained earlier to the sale being immaterial.

[Limitation].

Trial Court's judgment showing that entire evidence was not only read but also a part of statement made by one of the respondents was reproduced in it

Judgment of first Appellate Court showed that Court after noticing the evidence led from respondent-side had held that "the evidence led by the defendants on the point does not find support from the statement of independent and natural witnesses", again after some discussion regarding weakness of the defence, the statement made by one of the respondents was noticed and discussed

Mere fact that stamp paper on which agreement of sale was written was purchased not from place where parties resided but from some other place, held, was not conclusive to reach conclusion that the agreement of sale was forged.

Sale made after period of limitation for pre-emption suit and during pendency of suit of pre-emptor, held, could not affect right of pre-emptor so as to defeat his suit.

Sale-Person dealing with an agriculturist governed by customary law-Presumed to know agriculturist's powers of alienation being limited and alienation being not permissible without some necessary purpose

Alienee hence, bound in duty to satisfy himself as to ancestral property being transferred for some valid object recognised by customary law and to make an honest inquiry in such regard.

Ss. 4 & 15-Pre-emption-Sale-Exchange-M transferring his land to H ostensibly in exchange for another land-Simultaneously with such transaction of exchange sale deed executed by H in respect of their land in favour of F-Both exchange deed and sale deed executed and presented for registration together-Price of land transferred by H to F paid by F on behalf of H to M-M on making offer of sale of his land also found to have been advised by H to enter into exchange to ward off future pre-emption-Transfer of land by M, held, a sale and not an exchange and transactions camouflaged as independent of each other to defeat plaintiff's right of pre-emption.-[Pre-emption].

Hire purchase agreement-Whether transaction is in nature of out- right sale or hire-purchase agreement-Test.

Sale -Sale of goods-Contract of "sale" and "agreement to sell "-Distinct-Sale of Goods Act, (III of 1930), S. 4.

West Pakistan Local Councils and Municipal Committees (Further Usefulness in Service) Rules, 1963, rr. 3, 5 & 8 read with Municipal Committees (Retirement) Rules, 1966 and General Clauses Act (X of 1897), S. 21-Ake of superannuation-Municipal servant not having completed 55th year of his age when 1963-Rules replaced by 1966-Rules-1963-Rules, in circumstances, held, did not confer a vested right to continue in service till completion of 60th year of age-Right, however, if any, created by 1963-Rules, could be taken away by rule-making authority under S. 21 of General Clauses Act, 1897.

Sale -Agreement for sale of immovable property-Not compulsorily registerable Registration Act (Xvl of 1908), S. 17(2). A. S. Farooqi, Senior Advocate Supreme Court instructed by M. Z. Khalil, Advocate-on-Record for Appellant (in C. A. No. 132 of 1965) and for Respondent (in C. A. No. 133 of 1965). S. Akhlaq Hussain, Senior Advocate Supreme Court (absent on 11-3-71) (Khalid Farooq and Muhammad Hussain, Advocates Supreme Court with him) instructed by Yaqub Hussain, Advocateon-Record for Respondents (in C. A. No. 132 of 1965) and for Appellants (in C. A. No. 133 of 1965)). Dates of hearing : 9th, loth and 11th March 1971.

Sale of land-Argument that as "General Code of Tribal Customs in Shahpur District" by J. Wilson did not show as to what was custom with regard to sales no custom should be held to exist with respect to sales-Held, without substance.

Mortgage-Sale-Mortgage deed stipulating payment of principal sum in 10 equal instalments and reciting that principal amount shall be repaid on or before a specified date (some 10 years ahead), such date being described as "due date"

Default clause of deed, however, providing, inter alia, that on any "default committed by mortgagor notwithstanding anything herein contained to the contrary the whole of mortgage debt shall become immediately payable as if the due date had elapsed"

Liability for payment of instalments being a covenant expressly accepted by mortgagor, failure to pay instalments, held, automatically accelerated due date, breach of covenant committed within meaning of default clause, and mortgaeee entitled to sale of mortgaged property.

S. 101-Burden of proof-Sale Fraud and undue influence - Kabala executed by pardanashin lady-Onus to prove that kabala was duly executed by executant

Lies on person claiming interest through such disputed kabala.

-Sale-Concise statement not issued to petitioners and some petitioners wrongly described as minors (one of judgment-debtors and wives of some judgment-debtors auction purchasers) - Held, fraud perpetrated in publishing and conducting sale and sale consequently vitiated in law.

S. 7 read with S. 36-Sale-Certificate sale held without serving notice-Not void but voidable-Certificate-debtor, in such circumstances, can bring suit in civil Court for setting aside sale.

(c) Sale-Auction-Contract of sale coming into being as result of auction proceedings-Not exempt from operation of ordinary law relating to execution of contracts.(d) Sale-Earnest money-Part of purchase-price-Liable to be forfeited when transaction falls through-Sections 73 & 74, Contract Act, 1872

Not applicable.

Sale Sale-Person cannot sell something to himself.

Sale Agreement of sale-Collateral agreement as to buyer's subsequent use or disposal of goods sold-Not incompatible with agreement of sale-Sale of Goods Act (III of 1930), S. 4

[M Bain v. Wallace & Co. (1881) VI A C 588 ref.].

Sale "Sale"-"Purchase"- Words applicable to transactions by which transfer of ownership in land takes place as a result' of compulsory acquisition-"Disposition".

Sale Sale-Whether title passes by mere registration of saledeed:

Passing of consideration or possession riot proved-Deed is no proof of title.

Starting point from discovery of defect-(Obiter).

Sale-Transfer of immovable property by Muhammadan husband to wife in lieu of dower-Whether pre-emptible-Price of land transferred considerably in excess of amount of dower-Punjab Pre-emption Act (I of 1913), S. 4.

Sale-Of right of action against third Person-Significa­tion not made-Seller continuing action in own name-Plea that seller had been paid in full by buyer and was thus not entitled to continue action, held, not tenable.

Oral agreement for re-conveyance- Whether an addition to terms-Test for excluding oral agreement. It is, of course, literally correct to say that as the agreement for re-conveyance related to the lands sold it added a further stipulation respecting those lands. That, however, is not an appropriate test of the applicability of the section which is con­cerned to defeat the modification of a particular document. It is not enough to ask it the oral agreement relates to what has been sold. To be excluded it must bear, in some one or more of the ways specified in the section, upon the terms of sale as contained in the instrument. To add a stipulation which is quite unconnected with the terms of sale is not an addition of the kind struck at by the section.