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Petitioner: MUHAMMAD SAEED VS Respondent: Mst. Hajiani NOOR BAI AND OTHERS
Court Name: Sindh High Court Judge(s): Ajmal Mian Title: MUHAMMAD SAEED vs Mst. Hajiani NOOR BAI AND OTHERS Case No.: Civil Revision No, 117 of 1981 Date of Judgment:1983-08-17 Reported As: 1983 CLC 1883 Result: Revision dismissed
JUDGMENT
JUDGMENT ' This revision is directed against the judgments/decrees dated 7th April, 1980 and 16th August, 1981 passed by the learned Senior Civil Judge, Sukkur, and the learned III Additional District Judge, Sukkur, respectively in Suit No, 149/1974 and Civil Appeal No, 88/1980, respectively. ' The relevant facts leading to the filing of the above revision are that the applicant is the owner of house No, C. S. No, 2481 whereas house No, B-2480 belonged to respondent No, 3, who under a sale agreement dated 10th August, 1973 sold the same to respondent No, 1. The applicant filed the aforesaid Suit No, 149/1974 for possession and pre-emption. The above suit was resisted by the respondents. Respondents Nos. 1 and 2 filed a joint written statement, whereas respondent No, 3 filed a separate written statement. The learned Senior Civil Judge on the basis of the pleadings of the parties framed the following issues :- "(1) Whether the plaintiff has got right of pre-emption over the house bearing C. S. No, B-2480, Tobacco Bazar, Sukkur ? (2) Whether the plaintiff performed all the legal Talabs (demands) for exercising his right of pre-emption in the due and legal manner ? (3) Whether any promise was made by any of the defendants for the sale of the house in question ? (4) Whether the defendant No, 3 did not approach the plaintiff for the purchase of the disputed premises ? (5) Whether the suit is maintainable in law ? (6) Whether the suit is properly stamped and valued ? (7) What should the decree be ? "
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2. At the trial of the suit, applicant examined himself and one witness Abdul Jabbar, whereas respondent No, 2 examined himself. Respondent No, 3 did not examine himself or any witness. The learned trial Court after hearing the parties recorded findings in the negative in respect of issues Nos. I, 2 and 5, whereas issues Nos. 3, 4 and 6 were not pressed. In consequence of the above negative findings on the above three issues, under issue No, 7, the suit was dismissed. The applicant being aggrieved by the above judgment/decree filed the aforesaid Civil Appeal No, 88/80 which was also dismissed by the learned II Additional District Judge, Sukkur, by his above judgment/decree dated 16th August, 1981. The applicant being aggrieved by the above two judgments/decrees has filed the present revision application. 2(a). In support of the above revision application Mr. Muhammad Sadiq Khan, learned counsel for the applicant has urged as follows :- (i) That since under the Muslim law execution and registration of a sale-deed is not required in respect of sale of an immovable property, both the Courts below erred in holding that the Talabs made by the applicant were premature as the same were made prior to the date of registration of the sale-deed. (ii) That both the Courts below erred in non-suiting the applicant on the ground that the vendor, respondent No, 3, belonged to Shia sect, and therefore, the right of pre-emption could not have been claimed by the applicant being a Sunni, though no such plea was raised in the written statements. (b) On the other hand Mr. Rehman Ali Naqvi, learned counsel for the respondents has contended as follows :- (i) That Talabs for exercising right of pre-emption should have been made after the execution and registration of the sale-deed and not prior to that. (ii) That since the applicant himself described respondent No, 3 vendor as "Muslim, by caste Ismaili Khoja" it was not necessary to raise any express plea in the written statement as the applicant himself admitted above fact in the title of the suit. (iii) That even otherwise, the suit was liable to be dismissed as the two Talabs were not made in accordance with the Muslim law, even if it is to be assumed that there was no need to execute and to get a sale-deed registered. 3. Before dealing with the above contentions, it may be advantageous to state a few relevant facts. The sale-deed was executed by respondent No, 3 in favour of respondent No, 1, who is the wife of respondent No, 2 on 10th August. 1973. It was presented before the Sub-Registrar on 11th August, 1973. It was registered on 26th August, 1973. It may be advantageous to reproduce hereinbelow paras. 6, 7, 8 and 10 of the plantA, which read as follows :- "(6) That on 10th August, 1973 the defendant No, 3 sold this said C. S. No, B-2480, stealthily, and the sale-deed shows it to be in favour of the defendant No, 1, but commonly it is learnt that the defendant No, 2 has purchased it in the name-of the defendant No, 1, therefore both of them are shown as defendants. (7) That as soon as the plaintiff learnt of it, immediately he performed the 1st demand, that is, Talab-e-Movasibat, in a due prescribed and lawful manner. (8) That soon after the Ist demand, the plaintiff along with two witnesses, went to the site of the C. S. No, B-2480, and with reference to the Ist demand performed the second demand, that is, Talab- eIshad, as well, in a due, prescribed and lawful manner. (9) .... . .... (10) That the cause of action accrued to the plaintiff firstly on her about 10th August, 1973 when the sale took place, and it continues to accrue till today, and this suit is within time limit".
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' It may be observed that in the above quoted paras. Of the plaint, the applicant has not stated, the date or time of making first and Second Talabs. Furthermore, in above pera. 10 the alleged cause of action has been shown to have accrued on 10th August, when the sale took place and was a continuing cause of action.. It may also be stated that the two Courts below have dismissed the applicant's suit on the two grounds, namely, that the Talabs were premature as the same were allegedly made prior to the execution and registration of the sale-deed and secondly, that since the vendor respondent No, 3 was a Shia by caste the applicant being Sunni was not entitled to .Claim the right of pre-emption. 4. (a) That first question, which requires consideration is, as to whether in order to claim right of pre-emption there should be a registered sale-deed or that this can be claimed even without execution and registration of a sale-deed on the basis of a sale agreement etc. Mr. Sadik Khan has referred to the following cases in support of his first contention :- (1) Janki v. Girjadat and another (1885) 7 I L R 482. (ii) Begum and others v. Muhammad Yakub and another (1894) 16 I L R 344. (iii) Sitaram Bhauna Deshmukh v. Syed Jiaul Husan Khan Syed Sirajul Hasan Khan AIR 1923 P C 41. (iv) Niaz Ahmad and others v. Mian Abdul Rehman and others PLD 1961 (W. P.) B J 1. (v) Gullan v. Muhammad Ramzan and others PLD 1962 (W. P.) B J 33. (vi) Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411. (b) On the other hand Mr. Rehman Ali Naqvi, in support of his above first contention has reliie4 upon section 2(d) of the Transfer of Property Act, 1882 and section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 in addition to the citing of the following cases (i) Naresh Chandra Dutta v. Girish Chandra Das and another AIR 1936 Cal. 17. (ii) Monajul Haq v. Shafiuliah and another PLD 1964 Dacca 640. (iii) Ajimuddin Pramanik and others v. Najamuddin Mondal and another PLD 1966 Dacca 259. (iv) Fazaldin v. Abdul Hamid and another PLD 1967 Lah. 378. (v) Fazal v. Muhammad Azam etc. 1980 CLC 1817. 5(a). I intend to take up first the cases cited by the learned counsel for the applicant and the after the cases relied upon by Mr. Naqvi, learned counsel for the respondents. ' The first case was decided by 5 Judges of the Allahabad High Court. In the above case a co- sharer entered into a transaction of sale of his share in the agricultural land and transferred possession to a stranger without executing any registered sale-deed. The learned 4 Judges held that the right of pre-emption could have been exercised, notwithstanding, the absence of execution and registration of a sale deed. However, Mahmood, J, in the dissenting judgment held that there was no effective sale in view of provision of section 54 of the Transfer of Property Act in the absence of execution and registration of a sale-deed and, therefore,- the right of pre-emption could not have been claimed. The second case was also decided by a Full Bench of the Allahabad High Court. In the above second case a Muslim vendor transferred a house under a sale agreement valuing more than Rs, 100, the plaintiff in the suit claimed the right of pre-emption. The question before the Full Bench again was, whether in absence of execution and registration of a sale-deed in terms of section 54 of the Transfer of Property Act 1882, the right of pre-emption could have been claimed by the plaintiff. Again the majority view of four Judges was that the right of pre- emption could have been claimed, whereas the dissenting judgment was given by Banerji, J, who held that in the absence of fraud no claim for pre-emption under the Muhammadan Law applicable to persons of the Hanafi sect can arise in respect of the sale of immovable property of the value of one hundred rupees and upwards, unless such sale has been effected according to the provision of section 54 of the Transfer of Property Act.
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' In the third case the facts were that the original plaintiff and his nephew owned two villages jointly. The original plaintiff had undivided 3/4th share and the nephew had remaining undivided 1/4th share. On 14th October, 1908 the nephew entered into a sale agreement in favour of the appellants, who were Hindus in respect of his above quarter share. It was contemplated that a Pukka deed would be executed. The nephew also wrote a letter to his uncle informing him on the very day that he had entered into a sale agreement and he had sold his share for Rs, 29,999 and that in case he wanted to purchase, he should send him a cheque for the above sum. The question before the Privy Council was, whether the plaintiff could exercise the right of pre-emption notwithstanding that a Pukka sale deed was not executed till then. It was inter alia observed by the Privy Council that it was not the intention of the Legislature in passing Act No, IV of 1882 (the Transfer of Property Act) to alter directly or indirectly the Muhammadan Law of Pre-emption as it existed and was understood for centuries prior to the passing of the above Act. It was further observed that the intention of the parties is to be looked in determining what system of law was to be taken in applying and what was to be taken to be the date of the sale with reference to which the ceremonies were performed. Whereas in the fourth case. The question before a Division Bench of the erstwhile High Court of West Pakistan sitting at Baghdadul Jadid was, whether mere pointing out uncultivated land by the vendor or his agent to the vendee could amount to a notice to the person having right of pre-emption, when the property had been sold in the terms of section 30 of the Punjab Preemption Act, 1913, or under section 29 of the previous Punjab Pre-emption Act, 1905 for the purpose of limitation period of one year. It was held that the time prescribed for bringing a suit for pre-emption should start running from the date when the vendee had taken the physical possession of the whole or part of the property sold and unless it was done, the limitation would not start. In the fifth case again a Divison Bench of the erstwhile High Court of West Pakistan sitting at Baghdadul Jadid inter alia held that oral sale of property of more than Rs, 100 in value in contravention of section 54 of the Transfer of Property Act cannot defeat the right of preemption and the above right can be claimed notwithstanding absence of execution and registration of sale deed and in such a case the period of limitation would start from the date of mutation in the relevant record. The sixth case cited by Mr. Muhammad Sadiq Khan is a judgment given by the Hon'ble Supreme Court of Pakistan. The question before their Lordships was, whether a transaction of sale entered into in violation of section 54 of the Transfer of Property Act, 1882 for value more than Rs, 100 without execution and registration of a sale deed is pre-emptable. In this regard, it will be advantageous to reproduce herein below the relevant observations of the Supreme Court, which read as follows "Upon a review of this decision, it seems to us that the answer to the question raised must depend on whether there has been a sale within the meaning of the law under which the pre-emption is claimed and this must necessarily depend to a large extent upon the intention of the parties. Here the pre-emption was sought under the Punjab Pr. Emption Act of 1913, which was also applicable to the Bahawalpur State and under subsection (5) of section 3 of this Act a sale has been defined as follows :- `3(5) Sale shall not include :- (a) Sale in execution of a decree for money or of an order of a Civil, Criminal or Revenue Court or of a Revenue Officer. (b) the creation of an occupancy tenancy by a landlord, whether for consideration or otherwise'. ' This definition of sale is obviously wider than the one under section 54 of the Transfer of Property Act, for it is not governed by the restrictions as to the mode of transfer contained in the latter section. It cannot, therefore, in view of this definition, be said that if a sale of a property exceeding the value of Rs, 100 is made by a mutation entered in the revenue records such a sale is altogether void. This method of transfer by mutation in the revenue records was certainly recognized in the
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Punjab, to which the Punjab Pre-emption Act originally applied, as a valid method of transfer of agricultural land. Thus if the parties entered into a transaction in a form recognised by this law can it be argued that they nevertheless did not intend the transaction to be governed by the incidents attaching thereto under that law. ' The intention of the parties is further manifested in the present case by the fact that even now the parties to be transaction not only do not repudiate the sale but actually admit its validity. There can after this be no doubt as to the intention of the parties. The contention of the appellant, nevertheless, is that after the Transfer of Property Act has been made applicable to a particular area this method of transfer cannot, in any event, be regarded as being sufficient to confer any title upon the purchaser and the sale cannot be said to be a completed sale until the title has passed. We, are, however, unable to accept this contention, because, if the right of pre-emption is a right of substitution then certainly the person seeking to pre-empt can be put into the shoes of the stranger purchaser and exercise all the latter's rights including those to which he became entitled under section 53-A of the Transfer of Property Act. In exercise of this right he too could defeat the suit or either the vendor, or any other person claiming through the vendor to oust him from possession even if he had entered into possession on the basis of an unregistered document of conveyance. He would be in just as good or as bad a position as the vendee himself. We see no reason, therefore, why the transfer in such circumstances should not be pre-emptible when to hold otherwise would amount to opening the door for fraudulent persons to defeat the law of pre- emption, as, indeed was the endeavor of the parties in the case reported in I L R 16 All. 344." (b) Reverting to the cases relied upon by Mr. Rehman Ali Naqvi, it may be observed that in the first case a Division Bench of the Calcutta High Court held that in the case of deed compulsorily registerable as far third parties are concerned the point of time at which the transfer is to be effected, is that the deed of the transfer can be said to be registered deed and it is the date on which the document can be said to be registered and the necessary formalities for the purpose of making a Talab by a person claiming right of pre-emption under Muhammadan Law can be complied with after the above date. In the second case a !Earned Single Judge of the Dacca High Court took the view that the sale of property valuing Rs, 100 or upwards is not complete unless made by a registered document and the right of pre-emption can arise only after a valid complete sale. In the third case a learned Single Judge of the Dacca High Court held that the period of three years for pre-emption is to be computed not from the date on which Kabala was executed and presented for registration before the Sub-Registrar but it is to be reckoned from the date when the Sub-Registrar endorsed Certificate of registration under section 60 of the Registration Act, 1908. In the fourth case the Supreme Court of Azad Kashmir held that for the purpose of preemption terminus a quo for limitation provided for pre-emption suit is the date of registration of the sale deed. In the fifth case a learned Single Judge of the erstwhile High Court of West Pakistan. Lahore held that a mortgagee vendee cannot be taken to have possession under sale on the date of execution of sale deed but it is the date of registration when deed is entered in the registration book and that is the period for the purpose of limitation under Article 10 for claiming the right of pre-emption. 6(a). From the above cited and discussed cases, it is evident that among the superior Courts there is diversity of the view on the point, whether in order to claim right of pre-emption in respect of an immovable property valuing Rs, 100 or upwards, there should be a registered sale-deed in terms of section 54 of the Transfer of Property Act or right of pre-emption can be claimed even in th4 absence of the execution and registration of the sale-dm1 in terms of the above section. In my view, the Hon'ble Supreme Court of Pakistan in the above 1967 case as far as Pakistan is concerned has settled the controversy on the above point and it has been tersely laid down that in order to
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claim the right of pre-emption, it is to be ascertained, whether there has been a sale within the meaning of the law under which pre-emption is claimed and this must necessarily depend to a large extent upon the intention of the parties. It was further held in the above case by the Hon'ble Supreme Court that under section 23(5) of the Punjab Preemption Act the sale has wider connotation as compared to section 54 of the Transfer of Property Act, 1882 and that the mutation in the revenue record effected in pursuance of the sale transaction though not reflected in a registered sale-deed will be sufficient for the parties to exercise right of pre-emption. ' The basic question is, whether in the instant case the sale was complete on 10th August, 1973 within the meaning of the law under which the right of pre-emption is claimed and what was the intention of the parties. In Punjab there is an Act relating to right of pre-emption referred to hereinabove, namely, the Punjab Pre-emption Act, 1913, but there is no such Act applicable to the Province of Sind, and therefore, the right of pre-emption is claimed on the basis of the Muslim Law and, hence further question would arise, as to whether in the instant case the sale was complete on 10th August, 1973 in terms of the Muslim law without reference to section 54 of the Transfer of Property Act and what was the intention of the parties. Both the Courts have not adverted to this aspect and both have held that right of pre-emption could not have been exercised till the registration of the sale-deed and therefore, the finding of the two Courts below on the above point is not sustainable in law. (b) Before parting with the above discussion on the above point, reference may also be made to section 2(d) of the Transfer of Property Act 1882 and section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, relied upon by Mr. Naqvi, which read as follows :- Section 2(d) of the Transfer of Property Act. "2. (d) Save as provided by section 57 and Chapter IV of this Act, any transfer by operation of law or by, in execution of, a decree or order of a Court of competent jurisdiction : and nothing in the second Chapter of this Act shall be deemed to affect any rule of Muhammadan Law". ' Section 2 of the W. P. Muslim Personal Law (Shariat) Application Act.-"2. Application of the Muslim Personal Law. Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate) special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bestardy, family relations, wills, legacies, gifts, religious usages or institutions, including Waqfs, trusts and trust properties, the rule of decision, subject to the provision of any enactment for the time being in force shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims". It is true that under section 2(d) of the Transfer of Property Act, it has been provided that nothing in Chapter II of the above Act shall be deemed to affect any provisions of Muslim Law, but section 54 is given in Chapter III and not in Chapter II of the Act. Furthermore, it may also be noticed that section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 also does not refer to pre-emption law though it has covered nearly all the subjects/topics and, therefore, on the basis of the above two provisions, it can be urged that the Legislature did not intend to exclude the Muslim pre-emption law from the application inter alia of the provision of section 54 of the Transfer of Property Act. However, one cannot overlook the fact that the right or pre-emption is claimed on the basis of the Muslim law and not under any general law and, therefore, the ratio of the above Supreme Court case of 1967 is applicable, namely, whether the sale was complete in terms of the law under which the right of pre-emption is claimed and what was the intention of the parties. In view of the above clear pronouncement made by the Hon'ble Supreme Court of Pakistan, it cannot be held that because of the above two provisions or above two enactments right of pre-emption can be claimed only in a case, in which a sale deed is executed and registered in respect of immovable property valuing Rs, 100 or more.
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7(a). Reverting to the second contention. It may be advantageous to reproduce hereinbelow the description of defendant No, 3 vendor given in the title of the plant, which reads as follows :- "Neemji Bhai son of Anandji Bhai, Muslim by caste Ismaili Khoja, aged about 75 years, businessman Anees Tyre Corporation, Bahadur Shah Market, Bunder Road, Karachi." ' On the basis of the above description given in the title of the plaint, Mr. Naqvi has submitted that since the title is a part of the plaint, it is a part of the pleadings in terms of Order VII, rule 1, C. P. C. And as the applicant/plaintiff himself has described the vendor as Ismaili Khoja, there is admission on his part that vendor belonged to Shia sect. In support of his contention he has referred to Mulla on Muslim Law and Islamic Law in Theory and Practice by Aziz Ahmad, which indicate that Shia sect includes followers of H. H. Agha Khan. However, in this regard, it may be pertinent to refer to the case of Nur Ali and another v. Malka Sultana and others in which a Division Bench of the erstwhile Lahore High Court held that Ismailis in Punjab in case of succession are governed by Sunni law i. e. Hanafi. It may also be advantageous to quote hereinbelow para. 10, which reads as follows : "I will now take up the second of the two questions about which the parties are not agreed, namely, whether Hanafi law of succession or Shia law of succession was applicable to the property in dispute. The learned trial Judge has held that because the parties to the suit were the followers of His Highness the Agha Khan who was a Shia, they must also be held to be Shias as governed by the law of succession applicable to Shias. This reasoning is no doubt specious, but overlooks a very important fact that the followers of his Highness the Agha Khan came from all sects. It is in evidence that Sahib Ditta Mall was follower of His Highness the Agha Khan even though he (Sahib Ditta Mal) had not embraced Islam. From the evidence on the record and the Memories of the late Agha Khan, it is abundantly clear that His Highness the Agha Khan allowed considerable liberty of religious professions to his followers. The mere fact, therefore, that a Muslim was the follower of His Highness the Agha Khan would not conclusively establish that he was a Shia by religion". (b) I…
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