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Petitioner: Khan Gul Khan Etc. VS Respondent: Daraz Khan
Court Name: Supreme Court of Pakistan Judge(s): Muhammad Sair Ali, Chaudhry Ijaz Ahmed Title: Khan Gul Khan Etc. vs Daraz Khan Case No.: Civil Appeal No. 114-L of 2009 Date of Judgment:2010-01-28 Reported As: K.L.R. 2010 Supreme Court 316 Result: Appeal accepted
JUDGMENT
JUDGMENT CH. IJAZ AHMED, J. - Appellants/petitioner have sought leave against the Lahore High Court's impugned judgment dated 10.10.2008 whereby the civil revision filed by the appellants against the concurrent judgments of the Courts below, was dismissed. This Court on 4.3.2009 granted leave in the following terms:- "After hearing the learned counsel for the parties, we grant leave to appeal to consider the true scope and application of the provisions of Section 20 of the Punjab Pre-emption Act, 1991 as to whether the property being subject-matter of a pre-emption suit was to be divided between the pre-empetors and the vendees on pro rata basis, if all of them were found to have equal right of pre-emption. " 2. The detailed facts have already been mentioned in para. 2 of the impugned judgment and memo, of petition/appeal. However, necessary facts out of which the present petition arises are that respondent/plaintiff filed suit for possession through pre-emption against the appellants in the Court of Civil Judge, Mianwali on the ground of being Shafi Shareek, Shafi Khaleet and Shall Jar and Sale Mutation No. 2906, dated 12.3.2003 was illegal and without notice. Respondent filed written statement, controverting the allegations levelled in the plaint. Out of the pleadings of the parties, the Trial Court framed the following issues:- (1) Whether the ostensible sale price was fixed as Rs. 600,000/- in good faith and it was actually
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paid by the defendants? OPD (2) If above issue is not proved then what was the market value of the suit property at the time of its sale? OP Parties. (3) Whether the plaintiff made necessary talabs in accordance with law? OPP (4) Whether the plaintiff has superior right of preemption qua the vendees/defendants? OPP (5) Whether the plaintiff is estopped by his words and conduct to file this suit? OPD (6) Whether the defendant is entitled to receive incidental charge in case of decree of the suit? OPD (7) Whether the defendant is entitled to special costs under Section 35-A, C. P. C. ? OPD (8) Relief. 3. The learned Trial Court, after completing the legal formalities such as recording of evidence, decreed the suit to the extent of half of suit property according to his findings on issue No. 4 that both the parties had equal right of pre-emption with respect to the suit property and the same was to be divided equally between the parties under Section 20 of the Punjab Pre-emption Act, 1991. Appellants being aggrieved filed appeal in the Court of Mianwali who dismissed the same vide judgment and decree dated 18.10.2006. Thereafter appellants filed civil revision bearing No. 328 of 2007 in the Lahore High Court which was also dismissed vide the impugned judgment. Hence, this appeal. 4. Learned counsel for the appellants submitted that all the Courts below had decided the case against the appellants in violation of the mandatory provisions of Section 20 of the Punjab Pre- emption Act, 1991. The suit was filed by sole respondent against the appellants who are real brothers, therefore, in terms of Section 20 of the said Act, the appellants were entitled to 2/3rd share of the property in question whereas respondent was entitled to l/3rd of the share, In support of his contention, he relied upon the following judgments:- (i) Muhammad Khan's case (2008 YLR 296) (ii) Muhammad Hayat's case (2002 MLD 938) (iii) Feroze Khan's case (1992 MLD 1570) 5. Learned counsel for the respondent supported the impugned judgment. 6. We have given or anxious consideration to the. Contentions of the learned counsel for the parties and have perused the record, It is better and appropriate to reproduce Section 20 of the Punjab Pre-emption Act, 1991 to resolve the controversy between the parties:- "20. Where the pre-emptor and vendee equally entitled.- Where the pre-emptor and the vendee fall within the same class of pre-empetors and have equal right of pre-emption, the property shall
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be shared by them equally." 7. The said section was interpreted by the Lahore High Court in Feroze Khan's case supra. The relevant paragraphs are reproduced herein below:- Instant civil revision arose from out of a pre-emption suit, It raised an important and interesting proposition of law relating to interpretation of Section 20 of Punjab Pre-emption Ordinance/Act, 1991, governing the mode of distribution of pre-emptive property, between equi-classed pre- empetors, and vendees. Section 20 of the Pre-emption Ordinance/Act was unlike its predecessor Section 17 of Punjab Preemption Act, 1913. Relevant facts are: Noor Khan owned 39 Kanals, 5 Marlas of land at Mauza Law of Tehsil Tallagang, District Chakwal. By Mutation No. 2260 sanctioned on 10.1.1990, he sold it to Ahmad Yar for a consideration of Rs. 1,20,000. Four persons, namely Feroze Khan, Waris Khan, Ahmad Khan and Muhammad Khan sons of Mehar Khan pre-empted above sale. Pre-emption was claimed on the grounds of being co-sharers- in the land sold, participators in immunities and, contiguity, i.e. Shaft Shareek, Shafi Khalit and Shafi Jar. Price paid for the laind in dispute was disputed." Section 20 embodied a rule of Islamic Law, that in case of plurality of persons having equal right of Shuffa, the property shall be. Distributed per capita among them equally. As the pre-empetors were for in number poised against a sole vendee, they shall be entitled to 4/5th share of the property sold leaving the vendee with 1/5th share in it. Above rule for distribution of the pre- emptive property between equally classed pre-empetors and the vendee found recognition in a celebrated judgment of Allahabad High Court in case of Amir Hassan (Plaintiff) v. Rahim Bakhsh and others (defendant) ILR 19 All. 466. Rule laid down in the above-case firmly held the field in Allahabad High Court as well as Bombay High Court. Further, it was followed by Assam High Court, in case of Ladhi Bibi and others v. Masaddar AH Chaudhry and others AIR (36) 1949 Assam 81. Reference to para. 13 of the above judgment shall be helpful, It reads:- "Vendees are not co-sharers in Patta No. 34. Plaintiff, therefore, is entitled to pre-empt the lands of this Patta to the exclusion of the vendees. As regards lands of Pattas Nos. 54 and 107, plaintiff has been give a decree for half. But this is not according to law. Plaintiff and the three vendees are full co-sharers in the land. Their right are equal and according to Muhammadan Law, they will be entitled to share the land equally between themselves. This view of the law admits of no doubt and Amir Hassan v. Rahim Bakhsh, 19 All. 466: (1897 A.W.N. 118) is a clear authority that supports it. In these circumstances, plaintiff would be entitled to 1/4th of lands sold from Pattas Nos. 54 and 107". I must concede, my respect for the celebrity of the illuminating judgment of the Allahabad High Court in case of Amir Hassan which greatly assisted me on a field which was yet not covered by an authority of this Court. Heretofore, division of the pre-emptive property was covered by Section 17 of the Punjab Pre-emption Act, 1913, since repealed. Section 20 of the new Preemption Law fell for interpretation for the first time after its enforcement. There was no. Decided case from this Court on it. Decision in Amir Hassan's case was clearly in point and favoured the view of the Trial Court. I am in respectful agreement with the view expressed in Amir Hassan's case and would prefer to follow it in the case under consideration". 8. The Lahore High Court followed the said judgment in Muhammad Hayat's case supra. The said Muhammad Hayat's case was followed in Muhammad Khan's case Supra. Section 20 of the N.W.F.P.
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Pre-emption Act, 1987 was interpreted by this Court in Sar Anjam's case (1999 SCMR 2167) and laid down following principle:- "The learned Trial Court as also the learned Appellate Court seem to have not gone through the provisions of the Act at all. Had they done so, they would have noticed Section 20 of the Act which provides in terms unequivocal that where the pre-emptor and the vendee fall within the same class of pre-empetors and have equal right of pre-emption, the property shall be shared by them equally". 9. Section 20 of the N.W.F.P. Pre-emption Act was also interpreted by this Court in Kala Khan's case.. (1993 SCMR 543) and laid down the following principle:- ''The suit having been filed under the new law and the . Right of pre-emption having been claimed thereunder, the provisions thereof would compel as a new dispensation, the defendant/petitioner to share the property with the plaintiff to the extent of 50 per cent each. Under Section 20 of the N.W.F.P. Pre-emption Act, 1987 it was the command as well as intention of the law." , 10. The said section was also interpreted by this Court in Abdul Hakeem's case (NLR 2004 Civil 13) and laid down the following principle:- "Section 20 of the N.W.F.P. Pre-emption Act raises purely a legal question to the effect that if on the basis of evidence it is found by the Court that both, the preemptor and the vendee, fall within the same class of pre-emptor and have equal right of pre-emption, the Court will grant a decree in equal shares". 11. The Lahore High Court had followed the aforesaid judgments while deciding the case under Section 20 of the Punjab Pre-emption Act, 1991 in Haqnawaz's case (PLJ 2007 Lahore 177). The relevant portion is as follows:- "It will be seen that the term 'pre-emptor' and the 'vendee' has been used in singular. Needless to state that under the applicable Rules of interpretation contained in the Federal and the Provincial General Clauses Acts, singular includes plural and vice versa. Upon a plain reading of the said statutory provision where the pre-emptor (or pre-empetors) and the vendee (or vendees) fall within the same class of preemptor and have equal right of pre-emption, they shall share the property equally, In my humble opinion, the said provision of law does not contemplate two different classes rather only one class to which the pre-emptor as well as the vendees belong and that class is the one having equal right of pre-emption, In the present case, all the pre-empetors and the vendees belong to that very class of pre-empetors who are equipped with a right of pre- emption in equal terms i. e. That they are all co-sharers in the suit land at the time of sale. Thus, having become members of the said class having equal right of pre-emption, i.e. Class of co- sharers, they will share the property equally". 12. The Lahore High Court also followed the aforesaid judgments while rendering judgment in Muhammad Ali's case (2005 CLC 603). A Division Bench of Lahore High Court in Muhammad Yousaf case (2002 YLR 3764) has laid down the aforesaid principle of law while interpreting Section 20 in which one of us (Muhammad Sair Ali, J.) was a member. The relevant observation !s as follows:- "'the total effort in enacting the Punjab Pre-emption Act, 1991 was to adopt the Islamic principles on
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the law of pre-emption, therefore, one has to look to the Islamic notion of pre-emption and it is hot difficult to find that under the Islamic law where the right of the pre-empetors and that of the vendees is adjudged to be equal, the property or the land 'forming subject- matter of the sale is to be shared by them equally. The legislature in its wisdom, I therefore, incorporated this principle in section 20 of the Punjab Pre-emption Act so as to incorporate the complete intention of the principle of Islamic Law of ! Pre-emption. Need we refer to the preamble of the Ordinance which reads as follows:- Whereas it is expedient to re-enact the existing law relating to pre-emption so as to bring it in conformity with the Injunctions of Islam as set out in the Holy Qur'an and Sunnah". The Lahore High Court has taken the aforesaid view in Ghulam Muhammad's case (2004 YLR 1260). The legislature in Section 20 had used following words:- (i) Pre-emptor and the vendee fall within the same class of pre-empetors. (ii) Have equal right of pre-emption. (iii) Property shall be shared by them equally.' 14. The record reveals that respondent had filed suits against the appellants and through the impugned judgment the learned High Court had decided two civil revisions Nos. 555/2007 and 328/2007 by observing the dispute arose from the same cause and was between the same parties. Appellants had filed petition qua the judgment rendered by the High Court in civil revision No. 328 of 2007 whereas appellants had not filed any petition against the judgment arising out of the civil revision No. 555/2007. This fact was also verified from the office while dictating this judgment. 15. It is better and appropriate to- reproduce relevant provisions of Punjab Pre-emption Act, 1991 to resolve the controversy between the parties:- Preamble: Whereas, it is expedient to re-enact the existing law relating to pre-emption, so as to bring it in conformity with the Injunctions of Islam as set out in the Holy Qur'an and Sunnah; Section 6: Persons in whom the right of preemption vests. (1) The right of pre-emption shall vest:- (a) Firstly, in Shafi Sharik; (b) Secondly, in Shafi Khalit; and (c) Thirdly, in Shafi Jar. Explanation I: 'Shafi Sharik' means a person who. Is a co-owner in the corpus of the undivided immovable property sold. Explanation II: 'Shafi Khalit' means a participator in the special rights attached to the immovable property sold, such as right of passage, right of passage of water or right of irrigation. Explanation Iii: 'Shafi Jar' means a person who has a right of pre-emption because of- owning an
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immovable property adjacent to the immovable property sold. Section 7: Priorities in the right of pre-emption. Where there are more than one participators in the special rights attached to the immovable property sold, the person having a special right shall have precedence over a person having a general right. Illustrations. (a) A garden is irrigated by a watercourse which opens from a small canal. If this garden is sold, the person having right of irrigation from the watercourse shall have precedence over a person having right of irrigation from the canal. But if such garden is irrigated from the small canal, the person having right of irrigation from the watercourse as well as the person having right of irrigation from the canal shall have the right of pre-emption. (b) Where there are more than one pre-empetors and one has right of passage and the other has right of passage of water attached to the immovable property sold, the person having right of passage shall have precedence over the person having right of passage of water. (c) A participator in the special rights having his property, on the basis of which he claims to be the pre-emptor nearer to/the immovable property sold, shall have precedence over the pre-emptor having such property not so near to the immovable property sold. Section 8: Joint right of pre-emption how exercised. Where a right of pre-emption vests in any class or group of persons, the right may be exercised by all the members of such class or group jointly, and if not exercised by them all jointly, by any two or more of them jointly, and if not exercised by any two or more of them jointly, by them severally. Section 9: Method of distribution of property where more than one person are equally entitled. Where more than one person are found by the Court to be equally entitled to the right of pre- emption, the property shall be distributed among them in equal shares. 16. Purpose, object and concept of law of preemption is that a stranger should not be allowed to purchase property in preference to persons who have the first right of purchase. The purpose and object of enacting Pre-emption Act, 1991 is to bring the provisions of law inconformity with Injunctions of Islam as depicted from the preamble mentioned herein above. Preamble is a key to understand the Act which is always used to understand and interpret the provisions of Act keeping in view the preamble of the statute. 17. The concept is highlighted by Aziz Ahmed in his book titled 'Islamic Law in Theory and Practice' vide paragraph 463 which is reproduced hereunder:-- 463. Pre-emption when vendee and plaintiff belong to the same category of pre-empetors.- Where there are two or more persons have equal^ contingent right of pre-emption and a sale is made in favour of one of them, the others who have similar rights are entitled to claim pre-emption of their share. Their suit cannot be defeated on the ground that the vendee has an equal right of pre-emption.
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Illustration 4 3 2 1 Private street 5 6 7 8 The house No. 1 is sold by its owner to the owner of the house No. 2. The owners of the houses Nos. 3 to 8 have the right to pre-empt the sale, each is entitled to equally share the house with the vendee. Illustration 2-A, B and C are co-shares in a house. A sells his share to B. C is entitled to claim pre- emption, of one of the property. 18. The concept of Islamic Law was discussed in Amir Hassan's case ILR 1897 Allahabad 466. The relevant paragraphs are reproduced hereunder:- "that the Muhammadan law does not require that the claimant for pre-emption should have a preferential right, and that under that law, if the vendee and the pre-emptor have equal rights of pre-emption as S.C. 331 against an outsider, the property should be divided between them in the same way in which it would have been divided between them had the vendee been a stranger and both of them had claimed pre-emption against him. The contention is that the rule laid down in Book XXXVIH, Chapter i, of the Hedya (Vol. Ill, p. 566) that "when there is a plurality of persons entitled to the privilege of Shaffa the right of all is equal" is as much applicable when the purchaser is a person having the right of pre-emption as when he is a stranger" "the right of pre-emption "could, under Muhammadan law only, be against strangers or third parties n6t coparceners"........ "As, according to the Hedya, the object is "to prevent the vexation arising from a 'disagreeable neighbour"........................... It is settled law that where the vendee is a stranger and more persons than one have the right of pre-emption, and one of those persons is absent decree is to be given to those who are present, according to their number. But if, after decree of the whole to one who is present, a second should appear, half is to be decreed to him, and if a third should appear, decree is to be given to him for a third of what is in the hands of each of other two." .... "It is, according to "Mr. Justice Ameer Ali, "a work of great authority and merit." (Mahommedan Law, Introduction, p. 20), and the learned author of the Tagore Law Lectures for 1873 refers to it as "a* work of great celebrity" (p.46). It says - "When two persons a house and both are pre-empetors and then appears a third pre-emptor after division has been made under a decree or otherwise, he, that is, the pre-emptor, can have the division cancelled, because what was a half, has now become one-third (Sharah wah-baniya)." (f) ........... "These texts, the authority of which has not been questioned by Mr. Abdul Majid on behalf of the respondents, establish, as we have said two propositions; first, that even when the buyer is himself a pre-emptor, that is, a person who would have the right of pre-emption against an outsider, other persons having a similar right of pre-emption are entitled to claim pre-emption against the buyer; and, secondly, that in such a case the rights of the claimants to pre-emption should be determined in the same way in which they would have been determined, had the buyer acquired
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the property by enforcing his right of pre-emption against a stranger, in the absence of the other pre-empetors and the absentee pre-empetors had appeared subsequently and claimed pre- emption, In this view, as all persons having equal right of pre-emption are only entitled under the Muhammadan law to divide the property equally per capita, and as the purchasers in this case are two in number, the plaintiff appellant is entitled to only a third share of the property sold.".... We do not think we should be justified in applying those rules in a mutilated form; and we are of opinion that in cases of pre-emption we should apply the Muhammadan law; where it is not inconsistent with the principles of justice, equity and good conscience." As, however, the vendees have equal rights of pre-emption with him and they are two in number, the plaintiff would be entitled to only a third share of the property on payment of one-third of the sale price, provided that he has complied with all the requirements of Muhammadan law." 19. The other cases on the subject are as follows:- 2006 MLD 625 at 628 Muhammad Arif Khan's case "According to my humble estimation Section 20 of the Punjab Pre-emption Act, 1991 admits no other interpretation except that all the vendees with equal superior pre-emptive right qua the pre- emptor, will independently share the suit property, hence in the instant case vendees being two and pre-emptor being alone, the suit-land was correctly divided into three parts." 2006 MLD 735 (Peshawar) at 737 & 738 Abdul Latifs case: "In the provision of Section 20 of the Act ibid, the words pre-emptor and vendee have been used in singular and not in plural and it was in this context that reference has been made to equal division of property if both are possessed of equal right of preemption. However, Section 9 of the Act 1987 ibid, add to and supplement the provision of Section 20 of the Act which is reproduced below:- "Section 9. Method of distribution of the property where more than one person are equally entitled .......... Where more than one persons are found by the Court to be equally entitled, to the right of pre- emption, the property shall be disturbed arpong them in equal share." "To ensure fair play, principle of justice and rule of propriety therefore demands that the numerical strength of the pre-emptor or that of the vendees would require the Court to distribute the property equally by per capita so that each one is placed in the same position in which the other is placed otherwise division of the suit property as proposed by the learned counsel for the petitioner on the pattern half and half between the three pre-empetors and the solitary vendee would cause miscarriage of justice ( attracting the element of discrimination, disparity and unequal treatment before law of the person similarly placed and possessed of independent and individual right of pre-emption" moreso, when the statutory law itself has created no exception in this regard." 2005 YLR 197 (Lahore) at 199 and 200 Muhammad Nawaz's case "7. Section 20 of the Punjab Pre-emption Act, 1991 mandates that where the pre-emptor and the vendee fair within the same class of pre-empetors and have equal right of pre-emption, the property shall be shared by them equally. Section 20 of N.W.F.P. Act, 1987 is similarly worded; It came up for consideration before the Honourable-Supreme Court of Pakistan in cases, of Kala
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Khan v. Ayub Khan (1993 SCMR: 543), and Sar Anjam Khan v. Abdullah Khan (1999 SCMR 2167),' Wherein it was held that the pre-emptor and vendee/defendant falling in the same class have equal right of pre-emption and the property shall be shared by them equally." ........................... "9. The words 'pre-emptor' and the 'vendee' used in Section 2Q are meaningful. They belong to two distinct classes. One class is of pre-emptor while the other is of vendee. One pre-emptor or more than one, irrespective of share in land, will distribute equally. The intention of the Legislature appears to be that pre-empetors shall distribute the land equally amongst themselves as a class. As against this Section 20 of the Act provides that two classes of preemptor and vendee will share equally. 10. In the instant case, sole vendee is confronted by plaintiffs two in numbers. All are co- sharers. Whether the land will be distributable to them per capita with l/3rd share, each or pre-emptor and vendee as distinct class will share in equal shares, each. The-Honourable Supreme Court has taken the view that, if the pre-emptor and vendee fall in the same class they will share equally." 2006 YLR 3024 (Lahore) at 3027 Haq Nawaz's case "It will be seen that the term 'pre-emptor' and the 'vendee' has been used in singular. Needless to state that under the applicable rules of interpretation contained in the Federal and the Provincial General Clauses Acts,…
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