' SARDAR MUHAMMAD RAZA KHAN, J.--Abdul Hakeem son of Wahid Bakhsh of village Paharpur Thal, Tehsil and District Layyah, vide registered deed No,94 dated 17-1-1991 sold his landed property measuring 4 Kanals, 4 Marlas in favor of his real brother Abdul Hakim. Their sister Mst. Jannat Bibi pre-empted the transaction but the learned trial Court on 30-4-1992 dismissed the suit on account of nonperformance and non-proof, of Talb-i-Ishhad as contemplated by section 13(3) of Punjab Pre-emption Act, 1991. The decree was maintained by learned Additional District Judge Karor Camp Layyah vide judgment dated 11-10-1995.
2. The lady pre-emptor went in revision before Lahore High Court which, vide judgment dated 5-10- 1999, was accepted and the concurrent findings of two Courts below were set aside, in view of the judgment of this Court in case of Abdul Malik v. Muhammad Latif (1999 SCM R 717); that the non- compliance of the provisions of section 13(3) of the Act was not fatal provided substantial compliance thereof is proved. So far as the proof regarding the Talbs involved is concerned this Court in recent judgment of Haji Lal Shah (2004 SCM R 409) -and of Muhammad Hussain (2004 SCM R 737) has held that if performance of Talb-i-Muwathibat and Talb-i-Ishhad was not made in terms of section 13 of the Act, the pre-emptor would lose his right of pre-emption. Coming to the case Of Abdul Malik (1999 SCM R 717) relied upon by the High Court, though the Court, contrary to the latest view has held that the performance of Talb-i-Ishhad is a procedural matter but at the same time, in the circumstances of that case, it was determined that substantial compliance of provisions of section 13(3) of the Act, had been done to such an extent that it was enough to sustain the suit for pre-emption.
3. What really is required by section' 13 of the Act, needs some discussion. It reads at the very outset that the very right of pre-emption pre-emption and that such demands must be in the following order of shall stand extinguished if the pre-emptor does not make the demands of Talb-i- Muwathibat, Talb-i-Ishhad and Talb-i-Khusumat. It means that not only the making of Talbs is necessary but it has to be done in accordance With the order in which the Talbs are placed. As the question of Talb-iIshhad is mainly contested, it would be convenient to reproduce explanation III,
(3) to section 13 of Punjab Pre-emption Act, 1991: "(3) Where a pre-emptor has made Talb-i-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-iIshhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of preemption."
4. A close reading of the provisions would clearly indicate that the making of Talb-i-Ishhad, after performance of Talb-i-Muwathibat, is not only mandatory but it has to be done within fourteen days of Talb-i-Muwathibat. It further indicates that Talb-i-Ishhhad is constituted by sending a notice in writing attested by two truthful witnesses and thereby the intention to exercise the right of pre-emption would be conveyed through the creation of evidence in writing. This bring us to a logical conclusion that a notice of Talb-i-Ishhad is bound to be served and is bound to be attested by two truthful witnesses.
5. The requirement to be followed is the factum of attestation. It is defined by section 3 of the Transfer of Property Act and the. Same is reproduced below:-- ' attested', in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executants sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executants, or has received from the executants a personal acknowledgement of his signature of mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executants; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary."
6. The definition of 'attested' requires attestation of an instrument by two or more witnesses. The role of witnesses in such attestation is that each of them has seen the executants sign or affix his mark to the instrument or has seen some other, person sign the instrument in the presence and under the direction of the executants. There are other ingredients of the definition as well but the aforesaid would suffice for the present dispute.
7. All the requirements of the phenomemon of 'attestation' are a few questions of fact that surround the factum of attestation. Whenever, any such attestation is to be proved, it has to be so done by production of evidence. With this conclusion in mind, we would revert to the notice of Talb-i-Ishhad in dispute which is at page 51 of the file. It is neither signed by the pre-emptor/executant nor does it contain ally attesting witness. It purports to have been given by one Malik Abdul Aziz Awan, Advocate Layyah but such Advocate was never produced. We are at loss to comprehend as to how, at *all, this notice be considered to be proved or to be properly given under section 13(3) of the Act. What to talk of non-production of marginal witnesses, the notice did not even bear their presence. We are constrained to hold that notice of Talb-i-Ishhad was neither drafted in accordance with the section concerned nor was, at all, proved through evidence. The findings of the first two Courts were perfectly correct in this behalf and being related to the question of fact; these should not have been interfered with by the learned High Court exercising revisional jurisdiction. There was neither any error of law nor of fact justifying such interference.
8. While going through the record of the case and while examining the evidence, we are constrained to observe that even the question of. Talb-i-Muwathibat is doubtful. The institution of suit appears to have been motivated by Saeed Ahmed (P.W.4) who happens to be the husband as well as Special Attorney of the lady pre-emptor. The marriage between them, was not approved by the brothers specially Abdul Karim, the vendor. Admittedly, Saeed Ahmed has no cordial relationship with the brothers of his wife, so much so, that they admittedly are not on speaking terms with each other. In these circumstances, it is quite interesting to note that he went to their house only in order to witness the performance of Talb-i-Muwathibat to be performed by his wife.
Certainly, he does not appear to be a truthful witness and so are those who alleged him to be present on the spot. The performance of Talb-i-Muwathibat also falls into doldrums.
9. Consequent upon what has been discussed above, the instant appeal is accepted, the impugned judgment dated 5-10-1999 of the learned High Court is set aside and those of the two Courts below are maintained.