' The question that falls for determination in this petition under section 115, C.P.C. Is whether in view of the provisions of section 5 of the Punjab Pre-emption Act, 1991, the Court has no power to determine the real nature of the transaction sought to be pre-empted.
2. The land in suit was purportedly transferred by way of gift by the first defendant, Mian Muhammad, in favour of Muhammad Sher and others, defendants, petitioners herein, by means of a deed dated 10--9-1991. The respondent, Allah Ditta, sued to pre-empt the sale, his case being that the transaction was in fact one of sale but it was disguised as a gift to defeat his right of pre- emption.
3. Under the Punjab Pre-emption Act, 1913, section 4, the right of preemption was a right of person "to acquire agricultural land or village immovable property or urban immovable property in preference to other persons" and could "in respect of such property only the case of sales or of foreclosures of, the right to redeem such property". Section 4 of that Act enacted further:-- "Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in fact a sale."
4. In the well-known case of Government of N.-W.F.P. v. Said Kamal Shah (PLD 1986 SC 360), it was held that the provisions of the Punjab Preemption Act, 1913, including sections 15 and 16, were repugnant to the Injunctions of Islam, as laid down in the Holy Qur'an and Sunnah of the Holy Prophet and specified 31-7-1986 as the date on which that decision was to take effect. To bring the pre-emption law into conformity with the Injunctions of Islam, the Governor of the Punjab made and promulgated the Punjab Preemption Act, 1990. By section 5, subsection (1) thereof, it was enacted that "the right of pre-emption shall arise in case of sale of immovable property"; and subsection (2) thereof said:- "Nothing contained in subsection (1) shall prevent a Court from holding that an alienation purporting to be other than sale is in fact a sale."
' It will be seen that subsection (2) of section 5 of the the Punjab Pre-emption Ordinance, 1990 was a re-enactment of that provision as contained in section 4 of the Punjab Pre-emption Act, 1913.
5. The Punjab Pre-emption Ordinance, 1990 was repealed by the Punjab Pre-emption Ordinance, 1990 and the latter Ordinance was repealed by the Punjab Pre-emption Act, 1991. It is under the Punjab Pre-emption Act, 1991 that the suit, out of which this revision petition has arisen, was instituted.
6. Section 5 of the Punjab Pre-emption Act, 1991; enacts:-- "The right of pre-emption shall arise in case of sale of immovable property;"
' In it the words "nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in fact a sale" of section 4 of the 1913 Act and subsection (2) of section 5 of the Punjab Pre-emption Ordinance, 1990 which said "nothing contained in subsection
(1) shall prevent a Court from holding that an alienation purporting to be other than sale is in fact a sale" were not re-enacted.
7. Upon the omission of the legislature to re-enact this provision is founded the argument that the intention of the legislature was that the Court must take the transaction as it purports to be and that it has now no power to determine its real nature. The learned Civil Judge was of the view that with the deletion of the provisoin "under which the Courts were empowered to determine the exact nature of the transaction, now it is very clear that any transaction which is not a sale cannot be pre-empted". The learned Additional District Judge was, however, of the view that "omission of above provision regarding holding of any particular transaction other than the sale to be a sale in fact, from the Punjab Pre-emption Act, 1991, did not curtail the authority of the Court to hold any transaction of gift or exchange etc., to be a sale in fact". In his view the provision in the Punjab Pre- emption Act, 1913, and in the Punjab Pre-emption Ordinance, 1990, referred to above, "was simply an explanation but not any authority for the Court to decide such question. After omission of the above provision, no further provision has been made in the Act to debar the Court, which is a Civil Court, from deciding such question". It was, so held the learned Additional District Judge, open to the pre-emptor "to show that the transaction is really one of sale and is fraudulently made to appear as one of gift". He held further that the expression "sale" as defined in the Punjab Pre- emption Act, 1991, included Hiba bil-Iwz or Hiba ba Shart-ul-Iwaz and it had yet to be decided "on evidence as to whether the above ostensible gift of property in suit falls or not within the above two kinds of gift".
8. The Courts have always, in pre-emption cases, recognised a distinction between a device and a disguise and it has always been regarded as well-settled law that the Courts have the power to look to the real nature of the transaction. The principles that applied to such cases, were, if I may say so with respect, ably summarised in Ch. Chulam Ahmed Khan v. Diwan Sheikh Ghulam Qutab- ud-Din (PLD 1960 (W.P.) Lahore 461, 468) as follows:-- "A sale, for instance, may be disguised as a mortgage or Hiba-bil-Iwaz. When this is done, evidence can be led to reveal the real nature of the transaction by taking off the mask from the face of the transaction, so that the Court may discover whether the right of pre-emption has been successfully eluded or not. This, however, does not mean that a legitimate device becomes a disguise merely because the object is to defeat the right of pre-emption. The essential difference between a disguise and device is that a disguise is utilised to hide the reality by a counterfeit appearance. A false exterior is given to conceal the inner reality. In a device, the appearance is not false, but a method is invented or adopted to evade the ordinary or normal consequences of a situation and thus to achieve an object. In a device, there is always a scheme, a design or a stratagem which is real and not false."
9. It is in the light of these principles that the question of the interpretation of section 5 of the Punjab Pre-emption Act, 1991 and the effect of the omission to re-enact the provision of section 4 of the Punjab Preemption Act, 1913, namely, "nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in fact a sale" should be considered. Section 4 of the 1913 Act; itself, gave no power to the Court to hold that an alienation purporting to be other than a sale was in fact a sale; all that it did was to recognise that in pre-emption cases, such questions do arise and that there is power in the Court to determine the real nature of the transaction. It is, therefore, wrong on principle to say that the omission of this provision in section 5 of the Punjab Pre-emption Act, 1991, was intended to bring about a change in law. For, if the power to determine the real nature of the transaction has always resided in the Courts and the Courts were not vested with that power by that provision in section 4 of the Punjab Pre-emption Act, 1913, then there is no question of that power having been taken away by the omission to re-enact it in section 5 of the Punjab Pre-emption Act, 1991. The legislature must, therefore, be presumed to have omitted that provision because it was unnecessary and redundant.
10. It is difficult to ascribe to the legislature the intention to take away that power for yet another reason. It is that, as has been noticed above, the purpose of the Punajb Pre-emption Act, 1991, was to bring the law relating to pre-emption in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. The presumption is that the legislature does not encourage iraua and deception; that presumption is stronger where the object of the enacted law is to give effect to the Injunctions of Islam. There should be no doubt that to accept the contention of the petitioner's counsel that the effect of the omission was to affect the power of the Court to determine the real nature of the transaction would be to encourage the parties to the sale transactions to perpetrate fraud and deception to defeat the right of preemption by merely disguising the transaction as one which it really is not. Such a disguise would, if the contention is accepted, be sufficient to defeat the right of pre-emption, for so runs the contention, the Courts are now powerless to determine its real nature.
11. For these reasons, I hold that the learned Additional District Judge was right in taking the view that despite the omission of the provision, namely, "nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in fact a sale", as contained in section 4 of the Punjab Pre-emption Act, 1913, and similar provision in section 5 of the Punjab Pre- emption Ordinance, 1990, the Civil Courts have the power to determine the real nature of the transaction. Accordingly, the revision petition is rejected but the parties are left to bear their own costs.