MUHAMMAD AFZAL CHEEMA, J.--The sole question that falls for determination in this plaintiffs' appeal is that of the indivisibility or otherwise of a composite sale of agricultural land measuring 292 kanals, 18 marlas comprising Khata Nos, 99, 100 and :6/48th share of Khata No, 101 situate in Mauza Jamraniwah, Tehsil Lodhran, District 'Wuhan, sought to be pre-empted by Ata Muhammad plaintiff.
2. The short background of the case is that on the 20th of August 1956 one Shamas-ud-Din vendor alienated his above-mentioned land by means of an oral sale in favour of Ahmad Bakhsh and his co-respondents Ghulam Farid and Muhammad Din, brothers inter se, for a sum of Rs, 24,326 in the proportion of 13: 2 and 1 share respectively, as shown by the copy of Jamabandi Exh. P. 1 and the mutation Exh. P. 3, dated 20-8-1956. On 27-7-1957, Ata Muhammad plaintiff brought a suit for possession by pre-emption on the basis of his superior right, wherein it was alleged, inter alia, that the actual price paid was Rs, 14,600 and not Rs, 24,326, which was fictitiously shown in the aforesaid documents, with a view to deter the plaintiff from bringing action. The averments made in the plaint were completely traversed by the defendant-respondents, who also pleaded waiver on the part of the plaintiff. The parties went to trial on the following issues:-- (1)Whether the plaintiff has superior right of pre-emption against the vendees?
(2)Whether the plaintiff has waived his right of pre-emption, if any ?
(3)Whether the suit has been instituted for the benefit of other persons?
(4)Whether the court-fee paid is very low and, if so, what is its effect?
(5)Whether the amount of Rs, 24,326 was fixed bona fide as the price or was actually paid to the vendor ?
(6)What is the market price of the suit property ?
3. As regards the first issue, the learned trial Judge found the plaintiff a co-sharer with Ghulam Farid respondent No, 2 and Muhammad Din respondent No, 3 in Khata No, 101 only in which the third vendee Ahmad Bakhsh respondent had no land. Since they had associated with them Ahmad Bakhsh, a stranger, therefore, they were also relegated to an inferior position resulting in the conferment of a superior right of pre-emption on the plaintiff which could be confined to Khata No, 101 of which 26/48th share purchased by the respondents worked out to one kanal and 15 marlas only. Strangely enough, while conceding the plaintiff's right of pre-emption to this limited extent, the learned trial Judge, on the assumption of indivisibility of the sale, found him liable for the payment of the entire sale price.
4. In support of their plea of waiver, the defendant-respondents produced a copy of the statement of the plaintiff Exh. D. 1, recorded by Muhammad Abdullah D. W. I, in his capacity as Arbitrator between the parties prior to the suit. In this statement, Ata Muhammad had admitted that an offer had been made to him for the purchase of the land which he declined owing to his pecuniary difficulties. Muhammad Abdullah, who entered the witness-box, admitted having recorded the above statement of the plaintiff in the course of arbitration proceedings which proved abortive. No reliance was, however, placed by the learned trial Judge on the testimony of Muhammad Abdullah who was held to be guilty of misconduct. Furthermore, the copy of the plaintiff's statement Exh. D. 1, was found to have contained some interpolations militating against its authenticity. Likewise, the statements of Pir Bakhsh and Pathana D. Ws. were discredited as a cheap kind of evidence which could be easily procured, but could not establish waiver. The issue was, accordingly, decided against the defendant-respondents. No evidence was led by the defendants in support of their allegations that the suit had been instituted by the plaintiff for the benefit of one Abdul Haq. This formed the subject-matter of issue No, 3, which was also decided against them. The deficiency in court-fee having been made good, issue No, 4 was also found against the defendant-respondents.
Issue No, 5 was decided in favour of the defendants as no evidence was led by the plaintiffs in rebuttal of the statements of Pir Bakhsh, Muhammad Ramzan and Ata Muhammad D. Ws. produced by the defendants in support of the assertion that the price fixed and actually paid was Rs, 24,326. Under issue No, 6, the parties did not produce any evidence regarding the market price of the suit-land which even otherwise was considered to be irrelevant in view of the earlier finding given under issue No,
5. Consequently, a decree for possession by pre-emption of 26/48th share of Khata No, 101, measuring 1 kanal and 15 marlas, was passed in favour of the plaintiff on payment of the entire sale price of Rs, 24,326, inclusive of the 1/5th of the pre-emption money, to be deposited on or before the 24th of February 1959.
5. Feeling aggrieved, the plaintiff-appellant preferred an appeal before the District Judge, who overruled a preliminary objection taken on behalf of the respondents that the deposit of the pre- emption money had not been made by the plaintiff within the period allowed by the trial Court. The main contention raised on behalf of the appellant, however, was that since the sale had been found to be indivisible by the trial Court and Ghulam Farid and Muhammad Din had, by association of a stranger, forfeited equality of their right with the appellant, who was a co-sharer with them in Khata No, 101, a decree for possession of the entire suit-land should have been passed in his favour.
The argument, however, did not find favour with the learned District Judge who confirmed the view taken by the trial Court that the plaintiff's right of pre-emption could not be extended to Khatas Nos, 99 and 100 in which he was not a co-sharer. However, disagreeing with the trial Court's view that even for this small area, the plaintiff had to pay the entire sale-price of Rs, 24,326 the learned District Judge reduced it proportionately to the extent of the area which worked out to Rs, 144 only.
With this variation, the appeal was dismissed giving rise to the present R. S. A.
6. The main contention raised before us on behalf of the appellant was that the sale being indivisible, the plaintiff's right to pre-empt could not be confined only to Khata No, 101, but the suit should have been decreed for the entire suit-land, there being no specification of the price paid by each of the vendees in respect of the different Khatas. Reliance was placed on Abdullah and 3 others v. Abdul Karim and others. It was contended in the alternative, that the plaintiff-appellant could succeed against Ahmad Bakhsh who was a stranger, to the extent of his share in all the three Khatas. Reliance was placed in this regard on Tota Ram and others v. Kundan and others. On the contrary, it was argued on behalf of the respondents that since neither the plaintiff nor any of the defendants had any share in Khatas Nos, 99 and 100, they were, therefore, all sailing in the same boat and, as such, the plaintiff could not claim any preferential right in that regard and the superiority of his light of pre-emption, if conceded, would confine only to Khata No, 101 wherein he was a co-sharer with Ghulam Farid and Muhammad Din. It was argued that in the circumstances of the case, if the plaintiff bad brought a suit for the pre-emption of Khata No, 101 alone, he could not be confronted with the plea of a partial pre-emption, the khata being separable despite the composite nature of the sale. In other words, the argument was that the sale was divisible. Reliance was placed on Dulla v. Harkishan Das and another, Sardar Lal Singh v. Diva Singh and another Samal Das v. Gur Prasad and another and Abhainandan Prasad v. Bhagwan Dutt Pathak and another.
7. Section 15 of the Pre-emption Act has fixed the order' of priorities in which the right of pre- emption can be exercised A by the persons in whom it vests. Under section 15 (c) "Secondly", the right vests in the owners of the Patti and, "thirdly," in the owners of the estate. Although admittedly Ahmad Bakhsh was not one of the co-sharers in the three Khatas Nos, 99, ICO and 101, comprising the suit land, yet we do not know what, if at all, were the other khatas in this Patti and whether Ahmad Bakhsh was also an owner therein. From the statement of 11am Din Patwari P. W. 3, it is clear that Ahmad Bakhsh was an owner in the estate being a proprietor in Khatas Nos, 9 and 98. Thus, there is no conclusive proof that Ahmad Bakhsh did not hold land in the Patti and, accordingly, the inference is inevitable that is so far as Khatas Nos, 99 and 100 are concerned, the parties were sailing in the same boat. It is well settled that it is only with a view to retain the homogenous complexion of the estate that a stranger is sought to be kept out in exercise of the right of pre- emption. It is equally well-established that a co-sharer by associating himself with a stranger is also relegated to an inferior position making himself vulnerable to the exercise of the right of preemption by another co-sharer who may otherwise be at par with him. Relying on Bhagwana v.
Shadi Aedison and Din Muhammad, JJ. in Hayat Bakhsh v. Mansabdar observed as follows :-- "We are also of opinion that the policy of Pre-emption Act is to keep out strangers and thus maintain the exclusiveness of the estate. If a vendee, therefore, having an equal right of pre- emption associates with himself in a joint purchase a stranger or a person having no right to the first refusal under the Act, he loses his right of resistance and cannot be allowed to retain even his own share of the purchase."
8. Having considered the anthorities relied upon by the learned counsel for the parties, we are of the view that the plaintiff-appellant's right of pre-emption could not extend to Khatas Nos, 99 and 100 in which he could not claim a superior right being equally a stranger like the respondents. In Sardar Lal Singh v. Diva Singh and another, a Full Bench authority, the sale of several properties was effected in a single bargain, and only one of the properties was subject to the pre-emptor's right of pre-emption. The question arose before their Lordships as to how far the principle that there could be no partial pre-emption was applicable to the case. It was held by their Lordships that where a person was owner of several distinct properties, of which one was subject to a right of pre-emption, and he sold such properties in a single bargain to a person other than a pre-emptor, the later was entitled to bring a suit to enforce his right in respect of the property subject to his right alone without suing to take over the whole bargain. In other words, the sale was held to be divisible1 2 3 4 5 6 7 8 notwithstanding the oneness of the transaction. We are in respectful agreement with the view taken by the Full Bench and are inclined to think that the object of the law of pre-emption, which otherwise impinges upon the parties' rights of free bargaining, can be adequately achieved by this restricted application. In Samal Das v. Gur Prasad, another Full Bench authority, the question to be examined was when two houses adjoining one another were jointly sold, whether the right of pre- emption of the owner of the house, which adjoined only one of the two houses sold, extended to that one house only or to both the houses. It was held by their Lordships that the right of pre- emption did not extend to both the houses, but only to the one which adjoined one of them. We are inclined to think that, by analogy, the same principle could be applied to the facts of the case before us. The only difference in the facts of the two cases being that in the precedent relating to residential property case, the pre-emptor's right was based on contiguity, whereas in the instant case relating to agricultural land the pre-emptor's right was based on being a shareholder. Same view was adopted by Suleman, J. in Abhainandan Prasad v. Bhagwan Dutt Pathak and another. It was observed by his Lordship as follows:-- "If two properties are sold under a sale-deed, one of which is capable of pre-emption and the other is not, and the property capable of pre-emption is pre-empted, the vendee cannot lose his rights in the property which was not capable of pre-emption. That property must be deemed to remain vested in the vendee. It is immaterial whether the plaintiff did pay the whole or only a part of the total sale consideration. It would have been open to the plaintiff to ask the Court to apportion the consideration and reduce the amount in view of the fact that part of the property sold was not being pre-empted; but if for some reason or other a pre-emptor omitted to do so, and submitted to a decree for pre-emption of a part of the property on pay-ment of the whole amount, that could not destroy the rights of the vendee in the property which had not and could not have been pre- empted. It follows, therefore, that if the arrears of profits were capable of being sold separately and were not capable of being pre-empted, then they remain vested in the vendee quite irrespective of the fact, that the vendee has received back the entire consideration which he had originally paid for the sale."
It can be reasonably inferred from this that if the properties jointly sold under one sale-deed are capable of being sold separately, the right of pre-emption could not be extended to both as if the sale was indivisible. Conversely, on that assumption alone, the sale could be held to be divisible. In an earlier authority Dulla v. Harkishan Das and another same view was expressed by Shadi Lal and Johnston, JJ. It was held by their Lordships that where a sale sought to be pre-empted was by two vendors, and indivisible from certain points of view inasmuch as it did not state the amount of purchase money paid to each vendor, the vendee was notwithstanding, entitled to retain the part of the property sold in respect of which his rights were equal to that of the pre-emptor. In this authority considerable case-law was reviewed by their Lordships and reference was made in particular to Sardar Lal Singh v. Dewa Singh, Ellahi Bakhsh v. Kaki, Shahu v. Haku, Gauhra v.
Harbhaj, Rain Rakha Mal v. Devi Das, Uttam Chand v. Lahori Mal and Sanwal Das v.
Gurparshad a few of which have already been discussed by us. It would be advantageous to reproduce the relevant observation in extenso :- "The point taken in these was that, where a pre-emptor has superior rights as to part of the property sold, but not as to the rest, he should sue only for the former part. Thus, a pre-emptor is authorized, in certain circumstances, to treat a sale as divisible which might well for other purposes be by law indivisible, e. g., as between the vendor and vendee. But a pre-empter and a contesting vendee have certain mutual resemblances--each has claimed the right to buy and the vendee has exercised his right, while the pre-emptor is a would-be purchaser who has to invoke the aid of the Court.9 10 11 12 13 14 Though a pre-emptor's claim has been pronounced to be one for substitution of himself for the vendee and not for resale to himself, a theory apparently favouring the doctrine of Indivisibility of such sales as the present, we have seen that the pre-emptor may nevertheless, under the last named rulings of this Court, divide up a sale, for all other purposes indivisible, in order to take over only those things in respect of which he has a superior right of pre-emption, and, this being so, why should not the analogy hold that a vendee, who is a pre-emptcr who has actually made a purchase, should be allowed to say, when attacked by another pre-emptor. Let me keep that `which under the rules I have as good a right to as the 'plaintiff'. Why should he, any more than the aforesaid pre-emptor, be defeated wholly by the doctrine of indivisibility? No doubt it will be said that in the rulings just quoted the dividing up was of separate parcels of property and not of shares in one property; but in the extent of the shares is clear, I fail to see how this affects the argument."
It would be pertinent to observe in this context that their Lordships also took note of an earlier ruling in Maghi v. Narain and another wherein a contrary view had been expressed by Rattigan and Scot Smith, JJ,, invoking also the principle of staire decisis. It was held that where the purchase-money for a sale was paid in lump-sum without specification of the amounts paid by the various vendees, the transaction must be regarded as indivisible, though the shares to be taken by the various vendees may have been specified in the deed. On a closer examination of the two apparently conflicting authorities, one is driven to the irresistible conclusion that the rule of indivisibility is not absolute and inflexible for which some positive and unmistakable standards could be laid down. In Abdullah and others v. Abdul Karim and others on the basis of Maghi v. Narayan and Ram Nath and another v. Badri Narayan and others their Lordships of the Supreme Court took the view that there could be no presumption as to the divisibility of the transaction merely on the basis of the recital of the deed that the vendees took the property in specified shares if the consideration was mentioned as a lump-sum. In the circumstances of the case before the Supreme Court, their Lordships appear to have insisted on proof positive of the payment of the price by the various vendees in specified amounts which is not available on the record in the instant case. According to our humble interpretation of their Lordships' judgment, it does not make such a proof as the sole criterion of divisibility of a transaction; nor does it even otherwise appear to lay down an inflexible rule of general application irrespective of the facts and circumstances of each case. In the case before their Lordships wherein transfer of lands sought to be pre-empted was effected by different transaction of exchange and sale, the former in respect of 96/11, 502 share and the latter for the remaining 11,406,11.502 share, obviously insistence on the proof of payment of specified amounts by the various vendees would be fully justified. Since in the instant case the possibility of the transaction being split into two different sales can be clearly envisaged, the mere composite nature of the transaction, in our view, would not make it indivisible so as to extend the plaintiff's right of pre-emption to the major portion of the suit-land in regard to which he cannot claim any superiority of right to that of the vendee-respondents. Again this view would be more in consonance with the well-settled principle of law that right of pre-emption can be legitimately defeated by having recourse to legal devices such as improvement of status etc. A liberal enforcement of this right by an extended application to indivisible transaction would certainly run counter to the spirit of the above principle.
9. As a result of the above discussion, we find no force in this appeal which is hereby dismissed.
However, in view of the controversial nature of the legal issue involved, which indeed is of some nicety, we leave the parties to bear their own costs. PLD 1968 SC 140 AIR 1928 Lah. 784 6 P R 191515 16 1 2 3 107 P R 1882 90 P R 909 AIR 1925 All. 765 AIR 1934 Lah. 878 AIR 1935 Lah. 529 87 P R 1895 44 P R 1900 16 P R 1905 89 P R 1905 112 P R 1907 90 P R 1909 6 P R 1914 I L R 19 All. 148