' Mst. Chattal, respondent, as the collateral of the vendors, instituted the suit before the trial Court to pre-empt the sale of land in question in favour of the petitioner. She alleged in the plaint that she had not been served with the statutory notice as contemplated under section 19 of the Punjab Pre- emption Act. Her suit was decreed by the learned trial Court and the appeal filed by the petitioner against the judgment and the decree of the learned trial Court has also been dismissed by the learned Additional District Judge, Rahimyarkhan.
2. In the written statement filed by the petitioner he admitted the superior pre-emptive right of the respondent. His, main allegation against the respondent was that the suit had been instituted by her in collusion with one Jan Muhammad, whose similar suit filed against the petitioner had already been dismissed and the present suit filed by the respondent was for his benefit, who was financing the respondent for the prosecution of the same.
3. The findings of the Courts below on issue No, 1; whether the suit of the plaintiff is collusive and for the benefit of Jan Muhammad, have been mainly attacked in the arguments by the learned counsel. In order to discharge the onus placed on him by issue No, 1, the petitioner produced Exh. D.
1, copy of entry No, 1180, dated 23rd June, 1969 from the register of the petition-writer showing that Mst. Chattal, the respondent, got an agreement executed from D. W. 1, the petition-writer, in favour of Jan Muhammad whereby he was to meet all the expenses of her suit. The entry further shows that 1/5th of the pre-emption money was also paid by Jan Muhammad and the respondent had agreed that in case of decree in her favour she would transfer the land in question I his favour. The respondent, however, denied the execution of any such agreement. Muhammad Ajmal, D. W. 2, who was also produced by the petitioner in order to prove the execution of the agreement, stated that the agreement was written by D. W. 1, at the instance of Mst. Chattal, whom he identified. He, however, denied in cross-examination that the agreement in question was executed in respect of the land in question. He stated that it was in respect of some other land. The learned lower appellate Court while dismissing the appeal has held that no agreement between Mst. Chattal and Jan Muhammad has been proved to be in existence in respect of the land in question and further even if it is so, it has not been proved that the respondent is benami and the real owner of the property after the decree would be other person.
4. It is significant to notice that in the present case no effort was made by the petitioner to get the real agreement between Mst. Chattal and Jan Muhammad produced in the Court. No notice in this regard appears to have ever been issued to the respondent. The whole reliance is placed upon Exh.
D. 1, copy of the relevant entry of the register of the petition-writer in regard to the execution of the said agreement. It has been argued by the learned counsel that since the wording of the said entry proves that Jan Muhammad would bear the expenses of the suit, has already paid 1/5 of the pre- emptive money and in case decree is awarded in favour of the respondent the land in question would be transferred in favour of Jan Muhammad, therefore, the respondent is only benami and the real person who would benefit by the decree is Jan Muhammad. He has attached great importance to the wordings of the last line of the said entry, that in case of decree in favour of the respondent she would transfer the land in question to Jan Muhammad without any hesitation, and has argued that the said sentence contemplates the transfer of the land without consideration. He has tried to distinguish the facts of the present case from the case,. Lal Din v. Allah Ditta relied upon by both the Courts below while deciding against the petitioner, by arguing that in that case there was a default clause according to which if the pre-emptor in case of his success failed to execute the sale-deed, he was liable to pay Rs, 1,000 as damages and also to refund the earnest money. In that case it was found by the Courts below that an agreement (D. 3) bad been entered into between the plaintiff and Chiragh Din and Abdul Ghafoor to transfer the land in question to them in case of decree for pre-emption was passed and that the pre-emption money was to be paid by them. Reliance for this finding was placed upon a copy of the relevant entry from the register of the petition-writer which contained the material terms of the agreement. The agreement was proved by secondary evidence because the original one had not been produced by the appellant before the High Court. According. To the terms incorporated in the agreement plaintiff-appellant had agreed to sell the suit land to Chiragh Din and Abdul Ghafoor for consideration of Rs, 2,000 and towards part payment of the same he was paid Rs, 250 as earnest money. The pre-emption money was to be deposited in the Court by the said two persons and, as mentioned above, there was also a default clause according to which the plaintiff-appellant was liable to pay Rs, 1,000 as damages in case of his failure to execute the sale-deed.
5. Similar facts exist in the present case. Even if it be accepted that there is an agreement between Mst. Chattal, the respondent, and Jan Muhammad, then terms and conditions of the same will have to be examined in order to find out as to whether Jan Muhammad would be really the person who would own the property in question after the decree in favour of the respondent is awarded. It is obvious that in case decree is passed in favour of the respondent, Jan Muhammad would not become owner of the property. The same would be owned by the respondent in her own right and if she fails to honour the agreement then she can be sued for its specific performance.
' It has been argued that since the right of pre-emption is a personal one, therefore, if any person sues. The vendee for the benefit of another person, the suit must fail. I am afraid, this contention has no force. As held in PLD 1967 Lah. 703 right of pre-emption is a right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons and it arises in respect of such land only in the case of sales and in respect of such property in the case of sales or foreclosures of the right to redeem such property. It exists with1 respect to land or village immovable property in a particular person or persons before the sale of such property takes place and becomes an actuality at the completion of the bargain. The right of pre-emption is transfer in the sense that it is based on the interest of the pre-emptor in the property in question and on its personal relationship with the vendor. The said personal right is recognized in a judicial manner in the form of pre-emption decree which is not capable of transfer and it is not open to. Pre-emptor to transfer the pre-emption decree so as to enable the transferee to execute the pre-emption decree and to secure possession.
6. It is correct that if Mst. Chattal, respondent, has acted only as benami and is a fictitious person and the real owner of the land would be Jan Muhammad, who has borne the expenses of the case, then the respondent may be non-suited on this ground alone. The question, however, which arises for consideration is as to whether in the circumstances of the case as discussed above she has not instituted the suit for her own benefit when the decree awarded is in her own name and the same is not transferable. If it is held in the affirmative, then it cannot be said that after the decree has been passed in her favour the real ownership of the land would vest in Jan Muhammad. As held in PLD 196/ Lah. 03 the respondent can resile from the agreement and in that case the remedy available to Jan Muhammad would be either to file a suit for specific performance of the agreementUnless it is found that the respondent is a benami or fictitious person, her suit cannot be thrown out simply on the ground that she has been financed by Jan Muhammad or she has entered into an agreement with him for the sale of the property after the award of decree in her favour.
' It has been argued that since there is no default clause in the - agreement and the respondent has agreed to transfer the property without fail in favour of Jan Muhammad, therefore, the agreement being without consideration she is acting as benami. This contention has no force. It is correct that there is no default clause, but the inference as drawn by the learned counsel from the terms as mentioned in Exh. D. 1 is erroneous. Her agreement to transfer the property in case of decree in her favour does not mean that the transfer would be without consideration. It clearly means that she will transfer in compliance with the terms of the agreement, which do not contemplate transfer without consideration. Further the detailed terms and conditions may be obtained in the original agreement. Which has not been got produced by the petitioner. In the absence of that, such inference cannot be drawn. It is difficult to hold in the circumstances of the case, which are quite similar to that of PLD 196 D Lab. 703 that Mst. Chattal is benami or fictitious person and after th decree the real owner would be Jan Muhammad.
7. The learned counsel has further relied upon Faqir Muhammad Khan and others v. Pirdad Khan, Briji Nath v. Jita and others. Ramsukh Das v. Fazal-ud-Din and others, Ashiq Ali Khan v. Shaft Ali Khan and others and Keshri Kumar Singh v. Ram Swaroop Singh and others, in order to show that Mst. Chattal was a benami and fictitious person in the circumstances of the case and if a plaintiff, who is not seeking the decree of the suit for himself, but for another, then his suit must fail as a result of the nature of the pre-emptive right which is personal one, exerciseable only by the pre- emptor for his own benefit. Ali these authorities have been referred to, duly considered and distinguished in PLD 1967 Lab. 703 and it has been found in the given circumstances of the case as mentioned above, that the plaintiff-appellant in that case was not benami or fictitious person, but bad filed suit for his own benefit.
8. According to law a plaintiff in a pre-emption suit can enter into any agreement with another person as to how he will dispose of the land if he gets the decree. He can raise funds for the prosecution of his case and cannot be asked as to wherefrom the funds have been procured.
Reliance in this respect can be placed upon Sharu v. Jawahir Singh and Mahmud Bux v. Hassan Bakhsh and others.2 3 4 5 6 7 8 ' The facts of the former case are that Sharu's suit was filed after Jawahir Singh had instituted his suit, the 1/5th pre-emption money deposited in Court was advanced by the vendees, the money which was paid into Court in compliance with the decree passed in favour of the pre-emptor was advanced on a mortgage of the land in suit by the father and nephew of the vandees, the mortgage was for a fixed period of ten years and the conditions of the mortgage were such as to make its redemption difficult after the expiry of the period fixed by the deed. It was held in that case that above circumstances as brought out on record were not sufficient to prove that the suit was brought by a benami pre-empt. It was held in the latter case that :- "...a man who has a right to pre-empt has merely to produce the money just as any other purchaser, be can no more be asked what are you going to do with the land or whereforrn did you raise the money. The pre-emptor has nothing to do but to prove his right to take over the bargain and when he has proved this right all that he is left to do is to produce the money within the time fixed by the Court. If in any such case the pre-emptor is buying the property for an outsider, and if after securing the property, he transfers it to the latter, it may be open to another pre-emptor to challenge the second transfer and to claim pre-emption in respect thereof...This right is, in our opinion, a sufficient safeguard against benami transaction of the kind."
9. I am in perfect agreement with the principle of law laid down, in the given circumstances of the case, in PLD 1967 Lab.
703. Respectfully following the same, it is held that Mst. Chattal has not been proved to be benami or a fictitious person in the present case. The civil revision is, therefore, dismissed in limine having no force. PLD 1961 103 AIR. 1924 Lah. 615 139 P R 1894 19 P R 1898 AIR 1927 Lab. 872 AIR 1942 Oudh 19 58 P R 1912 8 7 P R 1912