ANWARUL HAQ, C. J.--This second appeal is by the preemptor who claimed a superior right of pre-emption on the basis of being a co-sharer in the khata. This share in the khata was acquired by the appellant by means of mutation No, 1031 attested on the 4th of June 1965. This claim was accepted by the learned trial Judge, but in appeal the finding was reversed, on the ground that section 54 of the Transfer of Property Act having been made applicable to the territories of the former Bahawalpur State, the pre-emptor had not acquired any valid title in the khata in question by virtue of the mutation relied upon by him.
2. It is submitted by Mr. Bhatti that the learned Additional District Judge has erred in taking the view that without registration of the sale the appellant did not acquire any share in the khata. In support of this contention the learned counsel has placed reliance on Abdul Karlin v. Fazal Muhammad Shah , and has contended that the view taken in Jangi v. Jhanda and others is not the correct view. It is further submitted that the true legal position is that whatever the defect in the preemptor's title, it is not open to the vendees in the present case to challenge the status of the pre-emptor which stands proved from the entries in the revenue record.
3. After hearing the learned counsel for the appellant at some length we have come to the conclusion that the view taken by the learned Additional District Judge is the correct one to take in this case. It is conceded that section 54 of the Transfer of Property Act was applicable to the sale evidenced by mutation No, 1031 dated the 4th of June 1965. As a consequence it must be held that no valid sale took place in favour of the present appellant as no registered instrument was executed. The right of pre-emption relied upon by the appellant is spelt out in the fourth clause of subsection (b) of section 15 of the Punjab Pre-emption Act. That clause contemplates that the right1 2 shall vest in the co-shares in the absence of the persons mentioned in the first three clauses of this subsection. In order to be treated as a co-sharer it was necessary for the pre-emptor to show that he had acquired a title in the land comprised in the khata from which the sale, sought to be pre- empted, had been made. The basis on which the pre-emptor relies has been found to be non- existent in view of the applicability of section 54 of the Transfer of Property Act.
4. This was the view taken by a Division Bench of this Court in the case of Jangi v. Jhanda and others. Shabir Ahmad, J., delivering the judgment of the Court, observed that "as section 54 of the Transfer of Property Act has not been complied with; the sale in favour of the plaintiff, on which reliance was placed, cannot be considered by Court to have been made, as the sale was not admitted by parties to the suit except the one in whose favour it was made." In the same judgment his Lordship also dealt with the question whether the sale which was sought to be pre-empted also suffered from the infirmity attaching to the sale relied upon by the pre-emptor, but his Lordship did not persue the matter as it did not directly arise on the pleadings. That question was dealt with at length by the learned Judges of the Supreme Court in the case of Abdul Karim v. Fazal Muhammad Shah. Their Lordships held that "the definition of sale under section 3(5) of the Punjab Pre-emption Act of 1913, is obviously wider than the one under section 54 of the Transfer of Property Act, for, it is not governed by the restrictions as to the mode of transfer contained in the latter section. It cannot therefore, in view of this definition, be said that if a sale of a property exceeding the value of Rs, 100 is made by a mutation entered in the revenue records such a sale is altogether void. This method of transfer by mutation in the revenue records was certainly recognised in the Punjab, to which the Punjab Pre-emption Act originally applied, as a valid method of agricultural land : "If the right of pre-emption is a right of substitution then certainly the person seeking to pre-empt can be put into the shoes of the stranger purchaser and exercise all the latter's rights including those to which he became entitled under section 53-A of the Transfer of Property Act" There was no reason "therefore why the transfer in such circumstances should not be pre-emptible when to hold otherwise would amount to opening the door for fraudulent persons to defeat the law of pre- emption.
5. The learned Judges have gone on to add that "if the transaction amounts to a sale in fact then notwithstanding that it is not in the form prescribed by 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 enforceable 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 on the property for the amount paid".
6. It will be seen that the direct question before the learned Judges of the Supreme Court was whether an unregistered sale was per-emptible or not under the provisions of the Punjab Pre- emption Act, and their Lordships have answered the question in the affirmative with reference to the definition of sale as contained in that Act. The observations cited above do not appear to us to be an authority for the proposition that the vendee under an unregistered sale can be regarded as a co-sharer within the meaning of section 15 of the Punjab Pre-emption Act. The term co-sharer as such does not appear to have been defined in that Act, but it would obviously mean a person who has a title in the khata from which the sale is being made. If the pre-emptor has not acquired any such title in accordance with law then he cannot be deemed to be a co-sharer, even though the rights acquired by him may be defensible under section 53-A of the Transfer of Property Act. It must not be e forgotten that the right of pre-emption is predatory in nature, and concessions are not to be made in favour of a pre-emptor unless they arise on a proper interpretation of the law.
We are, therefore, in respectful agreement with the view taken by the Division Bench in the case of Jangi v. Jhanda and others, namely, that in the absence of registration the pre-emptor would not acquire any valid right or title so as to be deemed to be a co-sharer.
7. For the foregoing reasons, the appeal fails and is hereby dismissed. PLD 1967 SC 411 PLD 1961 B J 34