1. ' S. A. NUSRAT, J.-This appeal by special leave is from the judgment of the Lahore High Court, .Dated 30-7-1980 whereby a second regular appeal of the appellants arising out of a pre-emption suit was dismissed.
2. ' The brief facts of the case are that Muhammad Iqbal son of Muhammad Abdullah and Shah Muhammad son of Chiragh Din, co-sharers in. a joint Khata sold agricultural land measuring 427 kanals 3 marlas situated in Mozah Maghar, Tehsil Pakpattan; district Sahiwal, to the appellants by a registered sale-deed, dated 6-2-1968 for a consideration of Rs, 96,000. Consequent upon such sale a suit for possession through preemption was filed jointly on behalf of Saifur Rahman, the minor son of the vendor Muhammad Iqbal, and by Muhammad Yunus the son of the other vendor Shah Muhammad. The plaintiffs claimed superior preemptive right on account of being sons Of the vendors and further pleaded that the notice of sale was not served upon them. At the trial the appellants conceded the superior pre-emptive right of the pre-emptors but pleaded that the pre- emptors had waived their right and the suit being collusive was liable to be dismissed. The learned trial Court on the pleadings of the parties, inter alia, framed the following issue which is relevant for the purpose of decision in this case :- "Whether the suit is collusive as contended in preliminary objection No, 3 of the written statement, if so, what is the effect ?"
3. ' The preliminary objection raised in the written statement, referred to in the above issue, was wbether the suit has not been filed in good faith and the owners had got the same instituted themselves with ma/a fide intention. Muhammad Yunus, co-plaintiff, subsequently withdrew his suit, which was dismissed qua him by the learned trial Court on 26-7:1977.
4. ' The learned trial Court decided all the issues in favour of the respondents and the suit was decreed against the appellants in respect of 332 kanals 4 marlas of land, being the share of Muhammad Iqbal vendor, subject to payment of a sum of Rs, 74,660.42 minus one-fourth amount, if already deposited. The appeal preferred by the appellants against the said judgment and decree was dismissed by the Additional District Judge, Sahiwal, on 20-7-1980, inter alia, on the ground that the appellants had failed to prove the plea of waiver and collusion. The matter was thereafter taken up by the appellants before the learned Lahore High Court in second appeal which was dismissed in limine as per impugned judgment.
5. ' In dismissing the appeal in limine, it was observed by the learned High Court that the contention regarding collusive nature of the transaction could not.Be entertained as it was never urged before the two Courts that the transaction was of a Benami nature and the two Courts below had recorded a concurrent finding to the contrary on the issue.
6. Leave to appeal was granted to examine the contention whether in view of the fact that Saifur Rahman, respondent, happened to be a minor at the relevant time and had no independent means of his own, the suit was caused to be filed by Muhammad Iqbal, vendor, for his benefit in collusion with his wife using the name of his minor son for this purpose.
7. ' It was not denied by the learned counsel for the appellants before us that the minor had a superior right of pre-emption. However, in support of his contention noted above, as per leave granting order, the learned counsel placed reliance on Muhammad Abdullah v. Abdullah and others . In that case it was held that a person acting as Benami not for his own benefit but an agent of a stranger and for his benefit, has no right of preemption and that such a person for the purpose of pre-emption is to be treated as stranger. In this very case, after review of case-law on the subject it was further held that "in order to non-suit a pre-emptor on this account the evidence must be convincing that he was a Benamidar and had made available his services for the benefit of others. Merely because he is poor or has disposed of his own property or is a minor or because the litigation was being financed by somebody else did not by itself mean that he was necessarily acting in the interest of another. Presumption ought to be taken in his favour as far as possible but nonetheless their importance and bearing on the question cannot be brushed aside or ignored.
8. What is, however, definite is that no hard and fast rule can be laid down and each case has to be decided in the light of its own facts".
9. ' The learned counsel next referred to Sumer Singh V. Amar Singh and others . In this case a pre- emption suit was instituted on behalf of a minor by a next friend and it was brought out in the evidence that the suit was instituted not for the benefit of the minor but to enable the next friend .
10. And his father to acquire the property in suit for themselves. In the circumstances, the suit was held to be not maintainable, and was dismissed. This judgment is also distinguishable and is not applicable to the facts of this case. The general principle enunciated in the judgment is that a suit brought on behalf of an infant must be conducted for his benefit and the person instituting the suit should not be allowed to abuse his authority and act for his own benefit which would be clearly 'against the interest of the minor. The observations of Brougham, L. C., from an English case, reported as (1833) 2 M & K 243, quoted advantageously in the judgment are as under :- "The true and the just principle which should govern all such cases is this. No discouragement ought to be thrown in the way of persons bona fide suing as next friends ; but no undue facility should be given to mere volunteers, who interfere rather for their own purposes than for the infant's advantage. While they appear to act bona fide, they will be protected, the presumption will rather be in their favour; the proof will rather be thrown upon those who impeach their motives ; the leaning will be more for than against them. But no strained presumptions will be made to protect them ; no forced constructions will be put on their conduct ; no benefit from bare possibilities will be conjured up in their behalf."1 2 ' It was contended by Mr. Bashir Ahmad Ansari, learned counsel for the respondent, that the appellants had failed to prove that Muhammad Iqbal, vendor, had got the suit instituted through his wife for his benefit and relevant issue having been decided on the basis of evidence, the appeal of the appellants was rightly dismissed by the learned High Court. It was asserted by him that on the basis of an allegation simpliciter, as raised on behalf of the appellants, a plaintiff cannot be non-suited in the absence of any evidence merely on the basis of presumption. Learned counsel referred to certain decisions to contend that if the plaintiff had a legal right to pre-empt, it was unnecessary consider from what source he was going to procure the pre-emption money, and who may have induced the plaintiff' to claim pre-emption was no concern of the Court. It is not necessary to consider the said decisions as the same are not relevant to the legal proposition raised in this case.
11. There can be no cavil with the proposition that the right of preemption being a personal privilege cannot be transferred and, therefore, it can be exercised only by and for the person in whom it resides: The plea like the one raised by the learned counsel for the appellants is easy to make and unless it is established by incontrovertible evidence it cannot be held a good ground for rejection of a claim. For the purpose of defeating the suit on the ground of collusion, the plaintiff was required to strictly prove and establish that the object of filing the suit was really to secure land for Muhammad Iqbal himself.
12. ' From the evidence on the record, the appellants were unable to prove such an allegation and the judgment of the learned High Court in not interfering with concurrent findings of fact arrived at by the learned two Court below is unexceptionable. In the result, the appeal has no merits and dismissed but there will be no order as to costs. PLD 1977 A J& K 69 AIR 1926 Oudh 406