This civil revision arises from the judgment and decree of the learned District Judge, Multan, whereby be on 10-3-1981 reversed the judgment and decree dated 29-7-1975 passed by the learned Civil Judge, Multan, decreeing the suit for possession by pre-emption filed by Muhammad Sharif plaintiff-petitioner against Maqsood Ali, Yaqoob Ali, Rafi Muhammad and Abdul Majid son of Allah Banda.
2. This was a suit for pre-emption with respect to gift of 173 kanals and 5 marlas of agricultural land situated in Mauza Hamtdpur Tehsil and District Multan in favour of Maqsood Ali and others, respondents (hereinafter called the alienees) by Allah Banda (hereinafter called the alrenor) through mutation No. 18 dated 30-9-1970 on the allegation that the transaction was in reality a sale for Rs. 30,000 and had been guised as a gift merely to defeat the right of pre-emptor.
3. The facts leading up to the mutation were that the alienor owned 3465/12537 share of land measuring 173 kanals and 5 marlas in village Hamidpur. On 5-9-1970, a report was entered in Roznamcha Waqiaii by Jalal Din Patwari-(D. W: 4) on the information of alienor. The entry Exh. P I shows the alienor gifted. His entire land to the alienees in the following shares
(1) Maqsood Ali and Yaqoob Ali sons of Khurshid Ali~2412/12537 in equal shares.
(2) Raft Muhammad = 480/ 12537.
(3) Abdul Majid (his son)=573/12537.
The alienor stated therein that the land was gifted in lieu of the services rendered to him. The details of the report Exh. P 1 will be given at the appropriate stage of the judgment. Mutation No. 18 was sanctioned on 30-9-1970 which shows that the land owned by the alienor situated in different khatas i.e. 17, 18, 19. 21 and 23 was transferred as gift to the alienees. It is to be noted that in khata No. 21, alienor's share was 2/3 28 kanals and 13 marlas.
The plaintiff claimed his right of pre-emption as being a Khewatdar, it has been stated that the alienees Maqsood Ali, Yaqoob Ali and Rafi Muhammad were not the Khewatdars and although Abdul Majid was the son of the alienor but he by joining strangers i.e. The remaing alienees with him, has lost his right to resist the pre-emption suit.
On pleadings the following issues were framed :--
(1) Whether the suit transaction is a sale, hence pre-emptible ?
(2) Whether the plaintiff possesses superior right of pre-emption, if issue is proved in the affirmative ?
(3) What was the market value of the suit property at the time of pre-empted transaction ?
(4) Relief.
On issue No. 1 the trial Court found that the transaction was really one of sale and hence pre- emptible. The Court did not believe that the alienation was on account of services rendered to the alienor. On issue No. 2, it was held that the pre-emptor had a superior right of pre-emption. On issue No. 3, it was declared that the market value of the suit land was Rs. 35,662.50. As a result of these findings, the trial Court decreed the suit of pre-emptor for possession subject to the payment of Rs. 35,662.50.
Feeling aggrieved from this judgment and decree, the alienees filed appeal. The learned District Judge, MuItan, while affirming the findings of the trial Court on issues Nos. 2 and 3 reversed the finding on issue No. 1. He found that the plaintiff--pre-emptor failed to prove that the transaction was in reality a sale and had been given cloak of Hiba. The learned District Judge observed that the disputed transaction is not a sale but a gift and, as such, not pre-emptible. The learned District Judge gave the following reasons for reversing the judgment of the-trial Court :-
(i) that the learned trial Court has simply picked a portion contained in the report Exh. P 1 wherein the value of the disputed property is mentioned as Rs. 35.662.50. It has not considered the remaining the portion of recital of Exh. P 1 which has clearly made out that the disputed property was alienated in favour of the defendants through gift. The explanation made by Jalal Din Patwari D. W. 4 that he entered the price of the disputed property in Exh. P 1 on the basis of five-yearly price for the determination of the District Council Fee is plausible ; ,
(ii) that for the purpose of completion of gift there was no necessity to establish rendering of services by the defendants as pointed out by the learned trial Court in its judgment as according to Moham--madan Law the gift or Hiba is a transfer of certain movable or immovable property made voluntarily and without consideration by one person called donor to another called the donee and accepted by or on behalf of the donee. The said point raised by the learned trial Court is simply irrelevant and redundant ; (i.e) that the statement of Sher Muhammad Lambardar cannot be believed. As he stands contradicted by Jalal Din Patwari (D. W. 4). It is an experience in our Province that the Lambardar change their version according to the occasion many times ;
(iv) that the statement of Muhammad Ramzan (P. W. 1) and Muhammad Ramzan Hajjam (P,W. 2) are simply self-created because they have not mentioned the exact price allegedly settled by the parties to the alleged transaction of sale and both these PWs are not the persons of status so as to be believed as .To their presence ;
(v) that statement of Haq Nawaz (P. W. 3) and Qadir Bakhsh (P.W. 5) that Allah Banda wanted 'to make the sale of the disputed property to them but the transaction could not be settled would not make out the fact that the disputed property was sold by him to the appellants-defendants :
(vi) that statement of Mr. Hameed-ud-Din Revenue Officer (D. W. 8) had to be believed at this stage which has armed the recital contained in the mutation ; and
(vii) that Exh. P 1 has made out that Allah Banda had made declaration about the inception of the gift and alienees had accepted the same and the possession was delivered, It is to be noted, that so far as findings of the trial Court on issues Nos. 2 and 3 are concerned, these were not challenged before the District Judge.
4. Having gone through the record I find that the onus of proof of issue No. 1, i.e. Whether the said transaction is a sale, hence pre-emptible ? was rightly placed on the pre-emptor. The plaintiff examined as many as six witnesses including himself and placed on record copy of Roznamcha Waqiati P 1, copies of Khasra Girdawari P 2 and P 3, copy of Jamabandi P 4 copy of Fard Maumla P 5, copy of Aks Shajra P 6 and copy of treasury receipt P 7. On the side of the alienees 14 witnesses including Khurshid attorney of the respondents and Abdul Majid alienee himself appeared and made statements. The respondents also tendered copy of mutation Exh. D 1, photostat copy of cheque D 2, statement of accounts Exh. D 3., copy of account book Exh. D 4, copy of account D 5, pedigree--table D 6, copy of registered sale deed D 7, copy of RL-11 marked `B', copy of Parcha Taqseem Khatuni marked `C', copy of Roznamcha D S and copy of Jamabandi D 9.
To prove issue No. 1 Muhammad Sharif plaintiff (P. W. 6) stated that the disputed mutation was one of sale and to defeat the pre-emption it was given the garb of gift. Muhammad Ramzan (P. W. 1) stated that 2, years before the alienor sold land for Rs. 36,000, the sale price was paid by the alienees in his presence and the alienor had agreed to disguise the same as a gift in order to defeat the pre-emption. Muhammad Ramzan (P. W. 2) stated that the land was sold for Rs. 36,000.
Sher Muhammad Lambardar (P W. 4), who had identified the alienor at the time of attestation of the mutation, stated that he knew this much that the bargain of the land was struck for Rs. 36,000 and to defeat the pre-emption, mutation of gift was got sanctioned. In cross-examination he stated that he had not informed the Tehsildar that in fact it was a sale and not a gift. Haq Nawaz (P.
W. 3) stated that four years back he wanted to purchase the suit land. Allah Banda (alienor) demanded Rs. 40,000 whereas he offered Rs. 30,003 and the bargain failed. Qadir Bakhsh (P. W. 5) stated that he wanted to purchase the suit land. Allah Banda wanted Rs. 36,000. He offered Rs.
32,300. He further stated that thereafter Muhammad Ramzan P. W. Told him that the land was sold for Rs. 35,662.50. In rebuttal Muhammad Khurshid; the attorney of the respondents stated that Maqsood Ali and Yaqoob Ali are his sons; Rafi Muhammad is nephew of Allah Banda ; the transaction was that of gift and that Allah Banda alienor was annoyed with his sons Abdul Majid and Abdul Aziz. Abdul Majid D. W. 13 (son of alienor stated that it was Hiba transaction. His father initially wanted to gift away the suit land to remaining alienees but on his protest he was also given land m Hiba. He further stated that the alienor was annoyed with him because his were used to quarrel with her father-in-- law (alienor). Siraj Din D. W. 10, Sadar Din D. W. II and Rustam D. W. 12 supported the version of Abdul Majid D. W.
13. Jalal Din Patwan D. W. 4 stated that on 2-9-1970 Allah Banda came to him and made report Exh. D 8 in the presence of Sher Muhammad Lambardar and thereafter mutation Exh. D 1 was sanctioned. He stated that amount of Rs. 35,662.50 was shown in the mutation as value of the land for the purpose of charging the District Council Fee. Sadar Din Tehsildar stated that he attested mutation No. 18.
So far as issue No. 1 is concerned, this is the material and the relevant evidence produced by the parties.
5. Before me, Ch. Khurshid Ahmad, learned counsel for the pre-emptor/ Petitioner has challenged the finding of the learned District Judge on issue No. 1 alone. He contends that the disputed transaction in reality a sale in the guise of a gift that the learned District Judge has misread the evidence ; has ignored the guiding tests laid down by the superior Courts for the determination of this matter and that when the surrounding circumstances are taken into account it becomes abundantly clear that the transaction was in reality one of sale and was given a garb of gift with intent to detect the pre-emption. He placed reliance on 1981 CLC 456 and (ii) Chiragh Din v. Allah Din (1916PR 70).
6. As against this, Rana Abdur Rahim Khan, learned counsel for the respondents insisted that the transaction was really that of a gift and the same was made by the alienor as a grateful return for Khidmat rendered by the alienees.
7. I have considered the arguments advanced by the learned counsel for the parties and have gone through the record. The sole question before, me in this revision is whether the alienation is (as in terms it purports to be) a gift in favour of the alienees or (as pre-emptor alleged and the trial Court held) in reality a sale in guise of gift. Before going over to the contentions raised by the learned counsel for the parties, I would like to narrate the guiding principles laid down by the superior Courts for the appreciation of this matter-
(i) that a device is permitted to defeat the pre-emptor ;
(ii) that the court shall try to find out whether the transaction really --and in substance amounts to a sale or not ; (.i.e) nothing .Precludes the Court from holding that an alienation purporting to be a gift, exchange etc., is in fact a sale ;
(iv) the real intention of the parties when entering into the transaction 4 is to be determined on all available material including the terms of the document ;
(y) it is for the pre-emptor to prove the real nature of the transaction. Extrinsic evidence is always admissible to show the real-nature of the transaction and intention of the parties ; and
(vi) the pre-emptor cannot be 'expected to adduce evidence, he ma,; discharge the initial burden of proof by proving circumstances which tend to show that the transaction was in reality a sale and in that case the burden would shift to the alienee to show that the transaction was not a sale.
Before, going over to the true character of the transaction, I would like to point out the admitted and proved facts of the case, Which are as follows :-
(a) Allah Banda, alienor, is an old man of 60/70 years. His entire land as admitted by P. W. 1 was 173 kanals and 5 marlas which fie has alienated ;
(b) the alienor had two sons, namely Abdul Majid respondent and Abdul Aziz. D. W. 13 Abdul Majid has stated that the alienor was not annoyed with Abdul Aziz ;
(c) the alienor was not a man of wealth because his entire land was 173 kanals and 5 marlas which he has alienated through mutation No. 18 ; and
(d) It has been concurrently held by both the Courts below that Maqsood Ali, Yaqoob Ali and Rafi Muhammad alienees are not related to the alienor and the finding on issue No. 2 wherein it has been so held has not been challenged by the alienees.
8. Now, I would like to examine if the alienees had rendered any services to the alienor so as to motivate him to make gift of his entire land in their favour. It is to be noted that in this connection the respondents did not produce any evidence at all. Abdul Majid respondent No. 4 when examined as D. W. 13 and Khurshid Ahmad D. W. 14 (the special attorney of the respondents) did not utter a single word about the services rendered by the alienees to the alienor. Khurshid Ahmad stated this much that the alienor used to live with Maqsood Ali one of the alienees. It is pertinent to note that the alienor who was alive at the time of the trial was not produced as a witness although one of the alienees was his real son who could easily produce him. The alienor was the best witness about the character of the transaction and the services rendered by the alienees to him. Since the alienor, who is the maker of report P. 1 has not been produced the report P. 1 per se is not sufficient to raise any presumption of Haq-ul-Khidmat in favour of the alienees. The alienees were expected .To prove this fact independent of the recital in the report P. 1 and mutation D 1. For the foregoing reasons it is held that the alienees have failed to prove that they bad rendered any services to the alienor.
With the statement of facts and law as narrated above, I proceed to find out the true character of the disputed transaction. It would be proper to reproduce report P. 1 here :- A perusal of this report shows-.That there are two sets of alienees One related, Abdul Majid (he admittedly is the son of the alienor) and the others not related i.e. Maqsood Ali, Yaqoob Ali and Rafi Muhammad (as found by the learned courts below in their findings on issue No. 2). I would like to discuss the case of each set of the alienees separately. First of all I take up the case of Abdul Majid respondent No. 4 to find out whether the transaction to his extent was that of sale or gift. The report P t indicates that Abdul Majid was given share of 573/ 12537. Having considered the evidence carefully, I find that the plaintiff has miserably failed to discharge the initial burden to prove that the transaction in his favour was in fact a sale and not a gift for the following reasons.
(a) that Abdul Majid being real son of the alienor had the first superior right of pre-emption.
Therefore, there was no need or necessity to disguise the transaction. It. Should be noted that this transaction took place in the year 1970 when the tenants had no right of pre-emption and the first right of pre-emption was that of a son ;
(b) that Abdul Majid being the son of the alienor his relation of blood was sufficient to motivate the alienor to make gift of the land in his favour ;
(c) that the circumstances of the case it does not appeal to reason that the father would have received the price of land from his son ;
(d) the first para of the plaint which had been admitted as correct in the written statement shows that the alienor owned 28 kanals and 13 marlas as permanent allottee. Mutation shows that the land of alienor in khata No. 21 was 82 kanals and 13 marlas and the calculation indicates that the land transferred to Abdul Majid i.e. 573112537 shares is equal to 28 kanals and 13 marlas. Para 2 of the plaint reads as follows :- It is an admitted fact that the remaining land i.e. 144 kanals, and 12 marlas was obtained by the alienor .By pre-emption. These facts and figure go to prove that the alienor transferred his original land i.e. 28 kanals and 13 marlas to his son and 144 kanals and 12 marlas which he had obtained from pre-emption to respondents Nos. 1 to 3 ; and
(e) that the statement of Abdul Majid D. W. 13 clearly shows that to his extent the transaction was independent one. He stated as follows :- It is, therefore, crystal clear that the alienor had already struck some bargain and thereafter on the protest of Abdul Majid, he agreed to make a gift of the land to .Him and that his entire land was transferred through one mutation.
For these reasons, I am of the considered opinion that the pre--emptor has failed to- prove by direct or indirect evidence that the transaction in favour of Abdul Majid was a sale. To my mind it was reality a gift,
9. Now I would like to discuss the nature of the transaction to the extent of respondents Nos. 1 to 3.
The deposition of Haq Nawaz P. W. 3 that four years- back the alienor had demanded Rs. 40,000 for the sale of the disputed land is irrelevant and has nothing to do with the disputed transaction. The statement of Qadir Bakhsh P.W. That Muhammad Ramzan had told him that the transaction between the parties was struck at Rs. 35,662.50 is inadmissible for the reason that Muhammad Ramzan when appeared as a witness has not stated that he had told so to Qadir Bakhsh P.W. So far as Muhammad Ramzan P. W. I is concerned, he stated that 2J years back the land was sold for Rs.
30,000 and at that time he was the tenant of the disputed land. He, however, admits that he was ejected from the land three years before. Since he was ejected presumably by the respondents, three years before, it would not be proper to rely on that part of his evidence which remains uncorroborated by the circumstances. Muhammad Ramzan Hajjant P.W. 2 deposed that the land was sold in his presence and an amount of Rs. 36.000 was paid to the alienor. In cross -- examination he stated that he did not know as to wherefrom the money was brought. Sher Muhammad P.W:4 is Lambardar. He identified the alienor at the time of attestation of the mutation.
He has given some sort of vague statement I have considered his statement with care. This part of his statement cannot be believed to the extent of Abdul Majid for two reasons--
(i) that there was no danger of preemption against Abdul Majid; and
(ii) that the joinder of Abdul Majid with others, who had no right of pre-emption could not improve the pre-emption right of the remain--ing alienees. Rather, this joinder would have deprived Abdul Majid of his right to resist the pre-emption.
10. The evidence produced by the respondents has not impressed me D.W. 1 Hamayat Ali stated that the bargain was not struck in his presence. D.W. 2 Nawab was unable to name out the alienor Jalal Din Patwari D.W. 4 having entered the report in the roznamcha that the transaction was that of a gift is not expected to depose otherwise, especially when the mutation has 'been attested. His inclination towards the alienees is very much apparent from the trend of his statement when he states that he had assessed the value of the land for the purpose of charging the District Council Fee. It is to be noted that report P. 1 does not bear out this fact that the value was assessed by him.
Report P. l clearly shows that the alienor in the middle of his statement stated and no reference whatsoever has been made towards the charging of the District Council Fee. The evidence led by the respondents has failed to convince that the transaction in favour of respondents Nos. 11 to 3 was also a gift. The following circumstances are worth consideration.
(i) that alienees 1 to 3 are not the collaterals of the alienor. The learned Civil Judge has clearly held that "in this view of the matter I hold that the defendants Nos. 1 to 3 are not collaterals of the vendor as alleged". The learned District Judge has also held in para. 4 of his judgment that "said type of evidence has failed to make out that Maqsood Ali, Yaqoob Ali and Rafi Muhammad defendants Nos. 1 to 3 are also collaterals of Allah Banda;
(ii) that the defendants failed to prove the services rendered by them to Allah Banda. Neither the alienor nor respondents 1 to 3 entered the witness-box to depose about the service. Although Khurshid and Abdul Majid appeared as witnesses yet they are silent this point ; (i.e) that the price of the land has been given in the report as Rs. 35,662.50. The explanation by the witness at the stage of the trial that the same was assessed for the purpose of District Council Fee cannot be accepted for the reason that at the time of report the alienor had not stated so and it is clear improvement to meet the objection. Report P. 1 also does not contain any note by the Patwari that it was assessed by him for charging the District Council Fee ;
(iv) that had this amount been assessed for charging the District Council Fee then it should have been in' the round figure and not as Rs. 35,662.50;
(v) that the following significant factors mentioned in the report show that there was something with the character of the transac--tion Had it been a pure and simple gift then the alienor would not have stated therein :
(vi) that the alienor had one more son, namely Abdul Aziz, and according to the statement Abdul Majid there was no quarrel between the father and that son ;
(vii) that the alienor was not a wealthy man. There is thus no foundation for the grounds upon which the gift in favour of respon--dents Nos. 1 to 3 was originally based. I am of the opinion that it would be idle for the alienees Nos. 1 to 3 to ask this Court to come to the conclusion that the transaction in their favour was that of a gift and not a sale. The trial Court was justified only to the extent of respondents-Nos. 1 to 3 to hold that the transaction to their extent was sale but was not justified to hold the same with respect to the share alienated to Abdul Majid To my mind, it appears that the learned trial Court as well as District Judge did not care to appreciate the case of each alienee independently and separately ;
(viii) that the share given to his son Abdul Majid is less than individual share of the other alienees; and
(ix) that the land measuring 144 kanals and 12 marlas was the same which the alienor had obtained through pre-emption suit and the same appears to have been alienated to alienees Nos, 1 to 3.
11. 1 have considered the reasons given by the learned District Judge for reversing the finding on issue No. 1 and I have reproduced the reasons in para. 3 of this judgment. To my mind, these reasons do not hold water. So far as the first reason is concerned, I find that the trial Court while discussing issue No. 1 has taken the notice of the entire report Exh. P. 1 and not a portion thereof. As regards the second reason, I am of the opinion that this reason may be relevant in those cases where the legality or the validity of a gift is in dispute but in the instant case the nature of the transaction is in dispute. The alienees' case was that the transfer of land was made by alienor as some return for the services rendered to him as mentioned in report Exh. P.
1. In this view of the matter. I am of the opinion that the reasons given by the trial Court are very much relevant to find out the true nature of the transaction.
So far as reasons Nos. 3 to 5 are concerned, I have already discussed the evidence of the witnesses. Copy of the report of Roznamcha Waqiati Exh. P. 1 is a one-sided statement of the aliener and cannot be deemed as an evidence of the acceptance of the declaration of the gift.
12. Resultantly. I hold that the disputed transaction to the extent of share of Abdul Majid was in reality a gift and not a sale and that to the extent of respondents Nos. 1 to 3, it was a sale which had been given a F cloak of gift.,
13. After having held that the transaction was partly a gift and partly a sale, I proceed to solve the following two questions :-
(1) Whether the gift is divisible from the sale ;
(2) If not, what would be its effect upon the natures of the entire transaction. Whether the transaction as a whole would have to be treated as a sale or a gift.
So far as the first question is concerned, I find that the report P 1 and mutation D 1 indicates that the share of Abdul Majid is specific i.e. 573/12537 and that as I have already found in para. 8 (E) of the judgment that the transaction to the extent of Abdul Majid was independent one, In paras. 1 and 2 of the plaint it has been clearly stated The bare reading of these paras of the plaint shows that according to the plaint itself the share of Abdul Maid is separable. Since the finding is that the transaction to the extent of Abdul Majid was a gift, the question" of specific contribution does not arise, For these reasons I am of the view that the share of" Abdul Majid is divisible and separable.
14. On the second question, I would like to refer to a case-law reported as Allah Dad v. Bagh Ali and others (PLD 1968 Lah. 428) wherein it has been laid down as follows Right does not arise in respect of transaction of exchange, land given in exchange forming a substantial part of consideration -- Vendee taking 10 marlas of land with share of well worth Rs. 1,800, and giving in exchange, 9 marlas of land plus Rs. 1,000 cash-- Transaction held to exchange.
Further held that part of this transaction can be deemed to be a sale, but the entire transaction being indivisible if part of it is held to be an exchange then the entire transaction will be immune.
From pre-emption.
But in the instant case, I find that the land given in gift to respondent No. 4 does not form the substantial part of the suit land, the shares are specific, the transaction is divisible and as such the entire transaction is not immune from pre-emption.
15. The upshot of the discussion is that the finding on issue No. 1 of both the learned courts below is modified as follows:-
(i) It is held that 573!12537 share of land alienated in favour of Abdul Majid respondent being in reality a gift and not sale, is not pre- emptible. To this extent the suit, filed by Muhammad 1 Sharif pre-emptor is dismissed.
(ii) On the question of sale price, I hold that it was the same as mentioned in report P 1, I e. Rs.
35,662,50. The suit for possession filed by Muhammad Sharif against respondents Nos. 1 to 3 is therefore, decreed on payment of Rs. 36,662.50. The record shows that after the judgment and decree passed by the trial court in favour of the pre-emptor, the decretal amount was deposited by him and the decree was executed against all the respon--dents. I direct that if Addul Majid has been dispossessed in execution of the decree, the trial court shall restore possession to him, With this modification, the petition is accepted. No order as to costs.