This judgment shall dispose of R.S.A. No. 349 of 1967 also.
2. In this second appeal arising from a pre-emption suit against judgment and decree dated 10-t1- 1967 passed by learned Additional District Judge, Jhang dismissing appellants' appeal from judgment and decree dated 18-11-1966 passed by learned trial Court, decreeing the suit of the respondents, the following two law points require determination:
(i) Whether the transaction sought to be pre-empted which was shown to be a Hiba was in fact a sale.
(ii) Whether the plaintiffs were entitled to the benefit of section 18 of the Limitation Act, and their suit was rightly held to be within limitation.
3. Learned counsel for the appellants argued that the document itself was the determining factor in order to decide whether it was sale or Hiba and as the document itself shows that it is Hiba, it was not open to the Court to hold that it was a sale. To support this argument he maintained that on the back of the document an endorsement has been made by the Sub-Registrar that no consideration was passed and in the recital it was clearly stated that the land was being gifted by the donor to settle certain disputes and for his peace of mind. According to him there were good reasons mentioned in the deed itself for making gift though the parties to this document were not related to each other and in these circumstances a gift to a stranger was not an extraordinary act and could not be doubted. He also argued that it was imperative to establish passing of consideration to prove that the transaction was a sale and there could be no sale unless there was a price paid or the possession of the land was delivered to the purchaser.
4. I have been taken through the evidence produced by the parties, by the learned counsel for the appellants. As against the recitals in the deed giving reasons for gifting the land as mentioned above, Muhammad Khan when examined himself as his own witness deposed that the land was gifted because the ancestors of the donees used to teach the Holy Quran to the ancestors of the donor. He when questioned, deposed that he did not know the names of the ancestors or the successors of the appellants. In his deposition he did not state that as to what services were rendered by the appellants to justify the gift. In the end of the alleged gift-deed itself the donor made himself liable to compensate the donees in case of fraud, concealment or other legal flaw in the title. After considering all these facts and the evidence produced on the record the two Courts below have rightly recorded concurrent finding of facts that the transaction was in fact a sale which was given the colour of a Hiba in order to avoid the enforcement of right of pre-emption by the others. As to the arguments that there could be no sale without actual payment of price settled as consideration or without delivery of possession of the land sold, suffice it to say, that this is not the legal requirement to complete the sale. It is sufficient if it is proved that a certain amount was settled as price of the land sold and actual payment of the price was not necessary to complete the: sale itself nor the delivery of possession of the land sold is necessary for completion of sale. A finding has been recorded on the basis of evidence that the land was sold for Rs. 320 which has not been shown to have been recorded on misreading or misconstruction of the record. Under section 4 of a the Punjab Pre-emption Act, where the nature of a transaction is in dispute, the Court is fully empowered to decide the question on evidence other than the contents of disputed document itself.
5. On the point of applicability of Section 18 of the Limitation Act, it has been argued that mere concealment simpliciter of the transaction of sale from the pre-emptor did not constitute fraud as envisaged by this section therefore, benefit of section 18 of the Limitation Act could not be given to the plaintiffs to hold that suit was within limitation and it should have been filed within one year from the date of registration of the deed. I am afraid, the argument is not based on the H facts established on the record. A concurrent finding of facts has been recorded that the deed was got registered at Lahore whereas the land was situated in Jhang. No attempt was made by the appellants to get a mutation entered and sanctioned till such time the period of one year had expired with the intention to conceal the transaction from the pre-emptors. The pre-emptors came to know about the transaction when the mutation was entered from which date the suit was found within one year. So much so, the fraudulent intention of the appellants was established beyond any doubt when they did not state in-the written statement the factum of having got the land and as such having become owners in the village when a suit for pre-emption was filed against them in respect of purchase by them of some other land in the village, to defend that suit on the ground that they were also owners in the estate on the basis of gift-deed in question merely to conceal the existence of thy transaction so that it may not be pre-empted. Fraud is a state of mind and it depends upon the facts and circumstances of each case established on record which will be the determining factor whether an act could be held to be fraudulent. After going through the evidence, I am convinced that in these circumstances it was with fraudulent design that the appellants tried to conceal the factum of transfer of land so that the pre-- original emptors may not come to know of it and got the mutation entered when the period of one year from date of the execution of document had already expired.
6. Learned counsel for the appellants could not succeed to persuade me to hold that concurrent findings of facts recorded by both the Courts below suffer from any mis-reading, misconstruction or non-consideration of evidence. The impugned judgments and decrees, do not suffer from any illegality to justify interference by this Court under section 100 C.P.C. The appeal fails, which is hereby dismissed with no order as to costs.