' These two appeals have been preferred against order dated 7-7-1972 passed by Land Commissioner, Multan Division, whereby he declared as void mutation No, 40 cf village Faizwab, Tehsil Vehari, District Multan.
2. The alleged facts of the case briefly are that Malik Muhammad Jahangir Khan gave away as oral gift 1242 kanals 16 marlas of his agricultural land in village Faizwah, Tehsil Vehari, District Multan to Khalid Nasrullah Khan, Khalid Mahmood, Wali Dad, Muhammad Hussain, Qutab, Abdullah and Murad, strangers vide mutation No, 40 sanctioned on 26-7-69.
3. The said Malik Muhammad Jahangir Khan was affected by M. L. R. 115 and he filed his declarations indicating the land involved in this mutation as having been given away as a gift to Khalid Nasrullah Khan etc. The transfer was scrutinized by the Land Commissioner, Multan Division who vide his impugned order dated 7-7-1972 held the alienation as void on the ground that it was in favour of non-heirs. Aggrieved by that order both the donor as also the donees have come up in appeals in this Court. Since both the appeals are against the same order and the same questions of law and fact are involved in both the cases, these are taken up together.
4. It has been mentioned in the grounds of appeal that the transaction was, in fact, one of sale. It had been given the shape of gift only to avoid any suit for pre-emption. It has also been stated that there were two agreements between the parties regarding the sale of this land. One agreement was made by Malik Muhammad Jahangir Khan in favour of Wali Dad, Muhammad Hussain, Qutab, Abdullah and Murad on 28-6-69, for sale of 5/7th part of land for Rs, 1,75,000. The second agreement was with Khalid Nasrullah and Khalid Mahmood for the sale of remaining 2/5th part of the disputed land in consideration of a sum of Rs, 70.000. This agreement was also executed on the same date. It was mentioned in these agreements that in the revenue papers, the transactions would be shown as a gift instead of a sale because of the fear of a suit of pre- emption. It has been contended that it was in pursuance of these agreements that mutation No, 40 was entered on 19-7-1969 in the shape of a transaction of gift though the land in dispute had factually been sold by Malik Muhammad Jahangir Khan to Khalid Nasrullah Khan etc.
5. The case was referred by me for enquiry to the Legal Adviser, who submitted his report on 28-2- 19./3 which I have seen. I have also examined the records and have heard the learned counsel for the appellants in detail.
6. The learned counsel for the donee-appellants has urged before me that this was really a sale but was given the form of gift to evade pre-emption which is allowed legally. To establish that it was a sale, he produced photostat copies of two agreements for sale-one dated 28-6-69 signed by Malik Muhammad Jahangir Khan on the one part and Khalid Nasrullah and Khalid Mahmood on the other part and the second dated 28-6-69 by Malik Muhammad Jahangir Khan on the one part and Wali Dad Khan, Muhammad Hussain, Qutab. Abdullah and Murad on the other part.
7. The points to be determined in this case are.
(a) Whether the document alleged to be an agreement for sale purported to create or transfer any right in the property and whether it was in fact a document of sale or was it only an agreement to perform certain functions by the vendor in consequence of the sale.
(b) If it is contended that the document confirmed the fact of sale, whether it was not compulsorily registrable and hence not acceptable in evidence without registration.
(c) Whether the sale had not taken place at the time of execution of the agreement and the agreement only purported to biud the parties as to perform certain functions in connection with the transaction of sale which was to take place subsequent to the entries of mutation of gift.
(d) If the appellant Malik Muhammad Jahangir Khan gave the transaction the form and shape of gift, can he revoke and go back on this transaction and now give it the colour of sale.
(e) If the transaction is accepted as one of sale would the mutation, which was entered as one of gift, be required to be altered as one of sale with consequential application of the law of pre- emption in favour of the collaterals of vendor.
8. On my direction, the learned counsel for the donor and the donees produced the following documents:
(a) Stamp Vendor's Register.
(a) Petition Writer's Register.- ' Both thes documents were seen and their examination indicated the following position:-
(a) Stamp Vendor's Register.
(i) Sale agreement between Malik Jahangir Khan and Walidad etc. ' The stamp paper was sold vide serial ND. 2549 dated 23-6-69. The stamp paper was bought by Asghar Ali `Karinda' who is reported to be the Munshi of Malik Muhammad Jahangir Khan. The name of the party in whose favour the stamp paper is shown, is Wali Dad etc.
(i) Agreement between Malik Muhammad Jahangir Khan and Khalid Nasrullah etc. ' The stamp paper was purchased vide serial No, 2575 dated 21-6-190 by Asghar Ali 'Karinda' for Malik Muhammad Jahangir Khan. The name of the party in whose favour the stamp paper was sold is shown as Khalid Nasrullah etc.
(b) Petition Writer's Register:
(i) Against serial No, 1147 dated 28.6-1969 the following entry appears :- {{URDU TEXT}} {{URDU TEXT}}
(ii) Against serial No, 1148, dated 28.6-1969 the following entries appear :- {{URDU TEXT}}
9. The learned counsel also produced a copy of judgment dated 1-12-1964 in Civil Suit No, 217 dated 23-11-63/21-5 64 decided by Ch. Bashir Ahmad, Senior Civil Judge, Multan which established that law of preemption was applicable within the revenue estate.
10. With regard to points raised in para. 7 above the learned counsel submitted seriatim as follows: -
(a) Mutation No, 40 attested on 26-7-69 in village Faiz Wah which speaks of only `Hiba' in favour of the appellants was a transaction of transfer, but in order to read the intention behind the same as to whether it was a gift simpliciter, gift for consideration, or a sale camouflaged as a gift to avoid pre-emption, reference shall have to be made to the agreement of sale dated 28-6-69. Mutation No, 40 stands explained by the text of the two agreements of sale dated 28-6-69 executed by the donor/alienor, Malik Muhammad Jahangir Khan in favour of the appellants, Khalid Nasrullah and other donees/ alienees, and as such it is a complete transaction of sale or a gift for consideration.
(b) An agreement of sale as defined by Mulla in the Registration Act is 'an agreement for sale in the usual form acknowledging receipt of earnest money and providing for the execution of a regular sale deed and payment of the balance of the purchase money'. According to clause ('6) of section 17(2) of the Regulation Act it is not registrable. About its admissibility attention was invited to section 49 of the Registration Act, relevant portion from the commentary thereof is reproduced below :- 4'A document which is not required to be registered by this Act or by any earlier law is admissible in evidence for the purpose for which it has been executed. Thus documents falling within section 17(2) (v) are admissible in evidence for the purpose for which they were executed-(AIR 1922 P C 266).
(b) The agreement of sale was practically the sale-deed because in pup. Nuance of the same the possession of the land was delivered to the alienecs, the consideration money received by the alienor and that the mutation of gift was the formal arrangement in the revenue records indicating the transfer of possession from one hand to another. The agreement of sale was only implemented formally in the form of mutation No, 40 of gift. Therefore, what was to be done was actually done in pursuance of the agreement of sale dated 26-6-69 between the parties and mutation No, 40 of gift was an entry in the revenue records to adjust the arrangement of making payment of land revenue by alienees.
(c) This device is permissible in law and the parties to a sale, in order to avoid pre-emption, can employ all devices to defeat the right of pre-emption and to safeguard the interest of transfer in land in favour of the alienees.
(d) The device is permissible under law and more so the period of preemption being one year having already expired, nobody had ever assailed the same because of its being entered as a mutation of gift.
11. The learned counsel relied on the following rulings :-
(i) Chiragh Din v. Allah Din 1916 P R 208-Pre-emption-Sale disguised as a gift-Evidence of gift being of sale held that the transfer was really one of sale though disguised as a gift.
(ii) Tara Chand v. Baldev and others 1890 P R 371 -Pre-emption-gift of sale-alienation that a certain transaction conformed a gift was really a sale-admissibility of the evidence to prove the oral nature of the transaction held by Full Bench that in case of alienation of land in which a document had been executed purporting to be a deed of gift or a mortgage, it is open to a third party claiming to exercise the right of pre-emption to prove that the transaction was in reality one of sale and the document sought to be impugned was executed in order to conceal its real nature and to defraud him of his legal rights.
(iii) Falq Shah v. Thalo Khan PLD 1951 Pesh. 14-Punjab Pre-emption Act-Exchange-Pre-emptor should prove that exchange is in fact a sale.
(iv) shoukat Khan v. Kh. Mahmood Khan PLD 1959 Pesh. 173N. W. F. P. Pre-emption Act-Pre-emption entitled to have an ostensible mortgage declared a sale-Transaction whether mortgage or sale- Past. It is open to a plaintiff in a suit of pre-emption to have it declared that a transaction is a sale, although its appearance is not a sale.
(v) Ch. Ghulam Muhammad v. Sh. Qutab-ud-Din PLD 1960 Lah. 461 at page 462-Punjab Pre- emption Act-Device and disguise-Distinction. There is a distinction between a device and a disguise and the Courts have the power to look to the real nature of the transaction.
12. I have examined all the documents and the arguments advanced by the learned counsel. On the basis of the Stamp Vendor's Register and Petition Writer's Register, I cannot hold that the alleged agreement of sale was a false and fabricated document. I accept that the said agreement was executed and the document produced before me is genuine. I also accept that this agreement was not compulsorily registrable and therefore was admissible in evidence.
13. The point that, however, finally arises and would determine the fate of this case is to what extent the parties to the alienation who attested the alienation as one of gift before the Revenue Officer for purposes of attestation and sanction of mutation No, 40 in question can change their stand now and claim that the alienation was not one of gift but of sale. For the attestation of the mutation no reference at all was made to any agreement of any nature. It is also important to consider that there is no record of this alienation except the mutation in question. Had the alienation taken place through a registered document it would have been argued that the mutation was immaterial and was a superfluous document. But in this case the only document that is available confirming the fact of alienation is the mutation of gift. The learned counsel has pleaded that the agreement of sale produced before me was only an agreement to perform certain act and was not itself a deed of alienation or transfer and was not hence registrable compulsorily. If it had been so it could have replaced the mutation. But in this case the document of agreement of sale is of secondary relevance and importance and is not the crucial and determining document so far as this alienation is concerned. In view of this, the alienation has per force to be treated as one of gift as evidenced by the mutation. In this the element of estoppel is also involved. Section 115 of the Evidence Act lays down that "When one person has by a declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of that thing". By recording the alienation as one of gift, they caused and permitted other persons to believe that it was an incidence of gift. By this mode they successfully averted the suit of pre-emotion which A could have been lodged. Having used this device and thus making others believe that the transaction was one of gift, they cannot now change their stand and claim that it was one of sale. The rulings that the learned counsel has quoted in fact to confirm that if a person does not believe the story of a gift to be correct, he is entitled to prove that the transaction was not one of gift but was one of sale. But in this case the persons who had the right of E pre-emption can be presumed to have believed the version of gift.
They cannot now, therefore, be defrauded by giving the transaction the colour of sale at this stage after the period for filing the suit for pre-emption is over. The parties to the transaction having further already succeeded in defeating one law namely law of pre-emption cannot now be allowed to defeat another law namely the Land Reforms Regulation 115 by changing their stand and claiming the transaction to be one of sale instead of gift. There was nothing wrong as the rulings show, in the parties tc the transaction having used the device of gift for defeating the law of pre-emption. But they cannot be permitted to defeat another law by adopting the reverse position and treating the gift subsequently as a sale to suit their convenience.
14. In view of the above reasons I do not find it possible to accept the prayer of the appellants that the alienation involved in mutation No, 40 be treated as one of sale. I, cannot therefore, find any justification in interfering with the order of the Land Commissioner dated 7-7-1972 whereby be declared void mutation No, 40 of village Faizwah, Tehsil Vehari, District Multan, on account of its being of gift in favour of non-heirs.
' Parties to be informed.