' Land measuring 62 kanals was sold by Allah Din and Muhammad Din in favour of Inayat Ullah for Rs, 13,000 vide registered sale deed dated 17th February, 1974 (Exh. D/1). Two suits were filed to pre- empt the sale. One by Ghulam Muhammad the present appellant and the other by Muhammad Bakhsh respondent No, 1 and were consolidated and tried together. The learned trial Court held the right of Ghulam Muhammad appellant superior to that of the vendee and the right of Mohammad Bakhsh the rival pre-emptor superior to that of the vendee as well as Ghulam Muhammad. Ghulam Muhammad appellant raised the plea that Mohammad Bakhsh respondent No, 1 had waived his right of preemption by participating in the sale and was thus estopped by his conduct to peruse his pre-emption suit. The learned trial Court holding that Muhammad Bakhsh had waived his right of pre-emption and as such was barred by his own act and conduct to institute a suit for pre- emption decreed the suit filed by the appellant vide his judgment and decree dated 4th December, 1964. Muhammad Bakhsh filed an appeal against the decree and findings relating to the estoppel contained under Issues Nos. 2, 3 and 4 were only challenged. The learned and District Judge, Sialkot vide his judgment dated 28th June, 1965 reversed the findings on these issues. The learned appellate Court came to the conclusion that at the most it could be stated that Muhammad Bakhsh had attested the sale deed in question as a marginal witness. It was further observed that before it could be said that Muhammad Bakhsh waived his right of pre-emption by attesting the sale deed it must be ascertained as to whether he knew the contents of the deed and reliance in this behalf was placed on Pandurang Krishanaji v. Markendeya Tukaram (1) and Udai Bhan Singh v. Gajendra Sing (2). However, the appeal filed by Inayat Ullah was dismissed.
2. The learned counsel for the appellant has contended that the law relating to the waiver of right and the principle of estoppel arising out of the attestation of the sale deed by a pre-emptor has not been correctly appreciated by the learned lower appellate Court. For the sake of convenience Issues Nos. 2, 3 and 4 are reproduced below :
(2) Whether Muhammad Bakhsh, plaintiff has waived his right of pre-emption by participating in the sale in dispute ? O. P. D. (No, 4).
(3) Whether the waiver concerned by issue No, 2 would operate in favour of any particular person ?
0. P. P.
(4) Whether Muhammad Bakhsh plaintiff is debarred by his act and conduct to maintain this suit ?
O. P. D. (No, 4).
' When a prospective pre-emptor attests a sale deed the following three situations may arise.
(1) That he had attested the execution of the document without the knowledge of the contents thereof ;
(ii) That while attesting the sale deed as witness he was fully aware of the contents of the document and the transaction evidenced by the same ;
(iii) That he had done overt acts apart from attestation, as for example, had participated in the negotiation of the transaction, or acted as a broker or had brought about the settlement between the parties.
As regards cases falling under category No, 1, above, it is an established proposition of law that mere attestation of a sale deed by a person having superior right of pre-emption does not amount to waiver. The learned A District Judge has given his finding keeping this situation in his mind as will be clear from all the judgments relied upon by the learned District Judge on the points.
3. The cases falling under category (iii) also do not present any difficulty. If a person has taken part in the transaction and has done some other overt acts in relation thereto the pre-emptor shall be deemed to have waived his right. Reliance may be placed in this behalf on Bhagat Ram v. Raghbar Dial etc. (3). The relevant observations of the judgment may be quoted below "The position therefore, so far as Bhagat Ram is concerned is that his father had assisted in the negotiations and even if the evidence of Ram Pal regarding his presence at the time the deed was written be ignored as it is not borne out by the evidence of his brother petition writer, it is established by evidence, which we consider disinterested and reliable, that he was not only present at the time of the registration but that he actively assisted in fetching and taking away the money and in counting it at the Sub-Registrar's (1) AIR 1922 P C 20 (2) AIR 1923 All. 28 (3) A 1 R 1925 Lab. 57 Office. The evidence in contradiction has not been relied upon by counsel for the respondent and we are of the opinion that it is of no value whatever."
' However, the present case falls in category No, (ii) and it is in respect of this that I am supposed to decide. Muhammad Bakhsh had attested the sale-deed but he had denied having attested the same. There is a concurrent finding by both the Courts below that he had attested the sale deed by putting his thumb impression. The learned trial Court has held that it amounted to waiver while the learned District Judge has observed that it amounted to mere attestation and as such would not amount to waiver. The learned counsel for the appellant has read over the statement of Hafiz Ullah (D. W. 2) Waseeqa Nawees and Fateh Muhammad Lambardar (D. W. 3) to show that the contents of the documents were read over to Muhammad Bakhsh and that he had put his thumb impression after getting himself acquainted therewith. The inference drawn by the learned trial Court from the refusal of Mohammad Bakhsh that he had never signed the deed has already been quoted above. It has also been noted above that the learned District Judge did not advert to this aspect of the matter and the findings of the learned trial Court were not revised. For the purposes of this judgment I would assume that the denial of Muhammad Bakhsh was intentional in order to avoid the consequences of the knowledge of the transaction and the effect of attesting the same which in some circumstances may amount to waiver and the pre-emptor estopped to file a suit to exercise his right.
4. The learned trial Court observed that it had been proved that Mohammad Bakhsh had thumb- marked the sale deed and the inference drawn from such denial may be reproduced below : "The very denial of the plaintiff that he never came to Narowal, and never thumb marked the sale deed shows that he wanted to hide a bare fact of participation in the sale, otherwise the mere attesting as a marginal witness would not have affected his right of preemption.
' It was further observed :- "The other argument of the learned counsel that the registered sale deed was thumb marked by one Muhammad Bakhsh son of Nabi Bakhsh and not by the plaintiff as his father's name is Bulla is also not plausible in view of the statement of Finger Print Expert and Fateh Din Lambardar, who has stated that the plaintiff came with them at the time of the registration and thumb marked the registered sale-deed after it was read over to the parties and to the witnesses by the petition writer concerned. This version is also supported by the petition writer D. W. 4/2. The conduct of the plaintiff Mahand Bakhsh shows a very clear case of waiver of his right as pre-emptor, as he took an active part in the bargain and never protested against it."
' The observations of the learned trial Court are quoted only to show that the learned District Judge has not adverted to these findings and did not discuss the evidence on record and from the knowledge point of view and proceeded on the assumption that it was simply a case of attesting the sale deed without knowing the contents thereof. This fact would be abundantly cleat from a bare reading of the judgment of the learned District Judge and the following observations may be reproduced below : "In view of the testimony of this witness I am convinced that Muhammad Bakhsh pre-emptor was one of the attesting witnesses to the sale deed in question. But the next question that requires determination is whether this act of Muhammad Bakhsh amounts to waiver. According to AIR (?)
Cal. 544 waiver is the abandonment by conduct of a known right. This definition has been further elaborated in PLD 1961 SC 436 wherein it has been laid down that waiver can be effective only if there is consciousness of right itself at the time of waiver. So before it is held that Muhammad Bakhsh waived his right of pre-emption by attesting the sale deed it must be ascertained as to whether he knew the contents of the deed. It has been laid down in AIR 1922 P C 20 that the attestation of deed by itself estops a man from denying whatsoever nothing excepting that he has witnessed the execution of the deed. It conveys neither directly nor by implication any knowledge of the contents of the document and it ought not to be put forward alone for the purpose of establishing that a man consented to the transaction which the document affects. To the same effect is the ruling of the Allahabad High Court reported in AIR 1923 All, at page 28."
5. According to the evidence on record it is proved that the contents of the documents have been made known to Muhammad Bakhsh and as such in view of the above circumstances it would create an estoppel. It was not a case of mere attestation of sale deed as held by the learned District Judge.
6. In Ismail Jolaha v. Jagannath (1) it was observed as under :- "To this sale deed Mahabir Rai was an attesting witness. The fact that he was, as found by the Court of first instance, the sole reversioner, and that he lived in the neighbour hood of the house in question, clearly shows that he was aware of what the widow had done, and there can be no doubt that when he witnessed the sale-deed he knew what the transaction was and that he consented to the widow's act. Having regard to the conditions in life of the people of this country, the fact of a person witnessing a document raises a strong presumption that he is aware of the nature of the transaction which he was witnessing. This presumption it lay on Mahabir Rai to rebut. This was not the case of a person who merely attested the fact of the execution of a deed by another. In this case it was the reversion who was witnessing a sale-deed executed by a widow after whose death he was to succeed to the property and it is manifest that his signature to the sale-deed was obtained in order that it might be evidence of his assent to the transaction. This case is similar to that of Mohar Misir v. Bishambar Misir A. N. (1888) 294 and some of the observations made in the judgment in that case fully apply to this case.
7. In Shib Dial and others v. Indar Singh and others (2) it was held as under :- "In our opinion Indar Singh has successfully proved that the rival pre-emptors not only agreed to the sale to Amar Singh, but did
(1) I C 255 (All.)
(2) 106 P R 1916 ' so with the intention of defeating his (Indar Singh's) claim, in fact, that there was a plot to keep Indar Singh out. To prove this Indar Singh has- (a)The signature of Sawan Singh one of the rivals, on the sale deed itself, as attesting witness, and again at registration ; (b)The fact that Indar Singh sued first (16th January, 1913) and afterwards the others sued (6th February),
(c) The admission of P. W. 6 Sawan Singh that he signed the sale-deed, and the circumstance that his party never asked him why or with what intention he signed so as to give him an opportunity to explain ; (d)The evidence of five other witnesses as to the negotiations that led up to the execution of the sale-deed.
' That evidence appears to us to be very strong and convincing. Though technically perhaps the signature of Sawan Singh would not bind his fellows, that signature not only binds Sawan Singh but renders it easy to accept the apparently disinterested oral evidence that all three persons were at one in agreeing to the sale to Amar Singh, especially as the three have shown their solidarity by suing jointly. That evidence has not been seriously criticized in argument."
8. My conclusion on the basis of the judgments quoted above is that in cases where a prospective pre-emptor signs the sale-deed as an attesting witness and the contents are read over to him or something is brought on record to show that he knew the contents thereof or denies his attestation only to avoid the consequences of the knowledge thereof, it would cease to be a simple case of attestation and such a person shall be deemed to have waived his right and thus estopped to tile a suit for pre-emption.
9. In view of the above discussion the findings of the learned District Judge, Sialkot dated 28th June, 1965 on Issues Nos. 2, 3 and 4 are set aside and the judgment and decree of the learned trial Court, dated 4th December, 1964 is restored. However, there will be no order as to costs.