SHAFI-UR-REHMAN, J.--Leave to appeal was granted to examine whether a sale effected in contravention of section 8 of the Punjab Agricultural Income-tax Act, 1951, and the possession of the land taken thereunder by the vendees could be of no avail to the vendees in warding off the claim to its possession in exercise of superior right of pre-emption filed within time after the removal of the invalidity of such sale and within one year of the attesta--petition of the mutation of sale on 18-5-1956.
2. By an oral sale agricultural land measuring 78 kanals, 1 marla situate in Mauza Boprey, Tehsil Khanewal, District Multan, was sold to the respon--dents Rajada and Pehlwan for a consideration of Rs. 4,387. The entry of the sale was made in the Rozenamcha Patwari on 16-8-1951 by one of the vendors stating that the possession of the land had also been transferred to the vendees. On 14-9- 1951 Mutation No. 194 was entered in respect of this sale. When the mutation came up for attestation on 12-12-1953 the vendors did not accept their liability to continue to pay the agricultural Income-tax which was made a condition precedent by the Collector for sanction of the mutation. It was rejected. The possession of the vendees continued on the land as its purchasers.
Again a mutation was got entered on 18-3-1956. The mutation was sanctioned on the statement of the vendors earlier recorded when rejecting the mutation in 1953. They were not examined afresh with regard to the sale as the bar earlier existing on account of section 8 of Act XI of 1951 ceased to exist in view of subsequent legislation on the subject. A suit was instituted on 28-10-1957 claiming superior right of pre-emption and the price of the property as only Rs. 2,000. The suit was tried on the following issues:-
(1) Whether the suit is within time? O. P. P.
(2) Whether the plaintiff has superior right of pre-emption against the vendees ? O. P. P.
(3) Whether the amount of Rs. 4,387 was paid to the vendor? O. P. P. (4) What is the market price of the suit property?
(5) Relief.
Two questions in controversy between the parties were settled in the trial Court by concession. The first was the superior right of the plaintiff-pre--emptor and the second was the price paid for the property. The question which was contested in the trial Court and has remained in controversy throughout was whether the possession of land taken by the vendees under a sale which was in violation of section 8 of Act XI of 1951, could be availed of by the vendees for pleading bar of limitation against the pre-emptor. The trial Court held that it appeared from the evidence unmistably that the possession of the vendees was traceable to the sale which had been completed in 1951, and as such the suit instituted in 1957, by reference to the attestation of the sale mutation on 30-10-1956 could not be said to be within time. Hence the suit was dismissed on the ground of limitation.
3. On appeal the Additional District Judge also up held the finding that the vendees had taken possession under the sale as early as in Kharrf 1952 and a suit instituted in 1957 was barred by time.
4. In Second Appeal the specific question as to the effect of section 8 of Act XI of 1951, and the alleged invalidity of the sale on that account in 1951 was considered at a length and it was held that the invalidity was limited to the payment of agricultural income-tax and did not make the sale infirm or incomplete for the purposes of the Pre-emption Act. It was held that the want of sanction of the Collector had the result of making the vendors liable for the payment of agricultural income- tax and the invalidity would be confined only to the consequential act of passing down of the incidence of the agricultural income-tax on such alienation to the vendees. The Learned Judges in the High Couurt concluded that the "transaction between the parties in the year 1951 was one of complete sale and its contingent invalidity for purposes of agricultural Income-tax Act did not render it incomplete in terms of section 21 of the Pre-emption Act".
5. The learned counsel for the appellant-pre-emptor has contended that sale of agricultural land could take place only by attestation of mutation and not orally. It has further been said that as in the case in hand the mutation was not attested but as a ratter of fact its attestation was refused in 1951, the sale could not be said to have taken place at all. The possession taken under an infirm or an incomplete sale could not be availed of by the persons claiming to be purchasers for the purposes of pleading the bar of limitation. It is only when a complete or a valid sale is made that the possession of the vendees under the sale would start. As in this case the validity of the sale could not be taken to be a date earlier than 30-10-1956 when the mutation of sale was attested a suit instituted within one year of it would be well within time. In order to consider the effect of section 8 of Act X1 of 1951, it is necessary to examine the nature of the Legislation, its ambit and scope. Earlier from the year 1948 Annual Agricultural Income-tax Act used to be enforced and in this context Act XV of 1948 and Act XIII of 1949 and Act VII of 1950 can be referred to with advantage.
The first two Acts had a provision, in section 7 in the first and section 8 in the second, which was in identical words and read as follows:- "Any transfer of land or of an interest therein effected after the 15th of August, 1947, which in the opinion of the Collector was intended to evade the tax shall be ineffectual for the purpose of this Act, and the tax assessed on such land shall be payable by the persons who would have been liable for its payment if no such transfer had been effected or by his successor-in-interest."
"Any transfer of land or of an interest in land effected after the 14th August, 1947. During his lifetime by an owner liable to pay tax under this Act, shall not be valid unless it has been formally approved by the Collector: Provided that if in the opinion of the Collector such a transfer of land or of an interest therein was intended to evade the tax, it shall be ineffectual for the purposes of this Act and the tax assessed in respect of the agricultural income of such land shall be payable by the person who would have been liable for its payment, if no such transfer bad been effected."
It is clear from a bare reading of the substantive provision of the law applic--able that while providing for the invalidity of the sales retrospectively from a date since 14th August, 1947, the consequence of the invalidity were also indicated. The consequences were that the incidence of fiscal liability under that Act could not be avoided, mitigated or curtailed by such transfer or interest unless it had the sanction of the appropriate authority. As pointed out by the learned Judges of the High Court the invalidity or the infirmity attaching to sales was not for all purposes and in all respects. By , the statutory instrument itself the invalidity was restricted, limited and expressed to be in the matter of devolution or distribution of the incidence of agricultural Income- tax. It is also in conformity with the rule of interpreta--petition that where past and closed transactions are sought to be effected retrospectively the effect is restricted to the express language and schemer of the Act and is not carried a step further.
7. Apart from the rule of interpretation of the specific provision pressed into service by the vendees the law on the subject has been considered in fair detail in the case of Abdul Karim v. Fazal (PLD 1967 SC 411). In that case violation of section 54 of Transfer of Property Act, where it was made applicable with full force, was examined and it was held that the sale must satisfy the requirement of the pre-emption law and must necessarily depend on the intention of the parties. If the transaction amounts to a sale in fact then notwithstanding that it is not in the form prescribed by section 54 of the Property Act the right of pre-emption will come into operation. It was held that "such a transaction even under section 54 is not altogether void, for, the defect is curable by getting a document drawn up and registered to perfect the inchoate title of the vendee. This perfection can be insisted upon, for, there is at any rate, an enforcible contract of sale even under the Transfer of Property Act, and even such an imperfect transaction will give rise to equities in favour of the buyer. If he has paid the price he will have a charge of the property for the amount paid".
7-A. It therefore follows from what has been said that the sale was complete in 1951, when under the sale the possession was delivered to the' vendees and they came to be recorded as in possession under the sale. It then became a pre-emptiable transaction and the mere non- attestation of the mutation as such could not postpone the effect of the sale or entitle the pre-- emptor to an enlargement of the time, for the infirmity did not attach to the sale as such but to the incidence of Agricultural Income-tax Act and its payment alone. Where possession had been so obtained and there is a public notice of it in the manner in which it has taken place in this case the' limitation would start from the date the vendees came into possession of the, land and the suit was evidently beyond time. The appeal has, therefore, no merit and it is dismissed with costs.