JUDGMENT MUHAMMAD NASEEM CHAUDHRI, J.- The disputed property comprising an area of two Kanals of land fully described in the plaint was owned by Nadir Khan who made sale of the same to the vendees. Fazal Elahi respondent minor son of Nadir Khan instituted hes suit to pre-empt the said sale.
2. A rival suit for possession by pre-emption was filed by Roora on the alleged qualification of being a collateral of Nadir Khan vendor.
3. The sale price of Rs. 12,000/- as mentioned in the registered sale deed was not accepted by the pre-emptores. Fazal Ellahi pre-emptor took up the stand that the rival suit was instituted by Roora pre-emptor at the instance of and for the benefit of the vendees. Roora pre-emptor also raised the plea that the suit instituted by Fazal Eliminator son of Nadir Khanvendor was collusive with the vendees and for their benefit.
4. Bothe the suits were contested by the vendees against the preemptors and the pre-emptores interse.
5. According to the epitomised pleadings of parties of both the suits following issues were framed for determination by the learned Trial Court:- ISSUES: (1) Which of the pre-emptores has got preferential right of preemption interse? OP. Pre-emptores.
(2) Whether the suit of the rival pre-emptores has been instituted at the instance and for the benefit of vendees, if so, what effect? OP. Fazal Elahi
(3) Whether the ostensible sale price of Rs. 12000/- was fixed in good faith or actually paid to the vendor? OP. Vendees.
(4) Market value? OP. Parties.
(5) Whether the suit of Fazal Elahi is collusive with the vendees and for their interest? OP. Rival pre- emptores.
(6) Relief.
6. The parties produced their evidence. Mst. Surriya Begum mother of Fazal Elahi mimr-plaintiff appeared as PW-2 who was cross-examined on the point of the source of amount to be paid as pre-emption money. The part its produced their remaining evidence as well. Expressing that Fazal Elahi minor pre-emptor has failed to establish the finances with him and also that with his mother Mst. Surriya Begum, learned trial Court held that he being a minor had instituted the suit for the benefit of the vendees who were bearing expenses of the suit having been instituted for their interest. The suit of Fazal Elahi was dismissed while the suit instituted by Roora pre-emptor was decreed.
7. Fazal Elahi preferred two appeals with respect to both the suits wherein the learned Appellate Court held that the provision of finances was an irrelevant matter and that Fazal Elahi being the son of Nadir Khan vendor had the superior pre-emptive right whose suit was to be decreed.
Consequently the first decree in preference was passed in favour of Fazal Elahi who was directed to deposit pre-emption money and in case of his failure in the matter the second decree was passed in favour of Roora preemptor at present represented through legal representatives due to his death. Feeling aggrieved two revision petitions have been filled by the legal representatives of Roora pre-emptor which have been resisted by Fazal Elahi rival pre-emptor. The vendees have shown their disinterest in both the matter.
8. I have heard the learned counsel for the contesting parties and gone through the record before me. v Learned counsel for the petitioners/legal representatives of Roora pre-emptor has argued that Fazal Elahi was minor at the time of institution of the suit on 22.7.1975 who instituted the same on the last date of limitation as the land was purchased be the vendees through sale deed registered on 23.7.1974 and that the said fact was enough to make out that the suit was collusive and for the benefit of the vendees. In this regard he relied on Naseer Ahmad vs. Arshad Ahmad (PLD 1984 Supreme Court 403) as well as Tasleem Hussain vs. Fateh Sher (1989 MLD 1809 Lahore).
He referred to the following portion from Naseer Ahmad vs. Arshad Ahmad (PLD 1984 Supreme Court 403):- "As a matter of fact, there are cases where the father sells land knd his son files a suit for pre- emption, which cannot but lead one to assume that there was collusion between the two. Such suits are very often mala fides because if the pre-emptor is genuinely so keen to purchase the land or property in question, he would gladly pay the price which- is being offered to the vendor by an other person or come forward and tender the highest hid at an auction rater than wait till the transaction is complete and thereafter, spend 20 years of his life in litigation and incur huge expenditure which was in many cases even more than the actual price of the land or the property at the time of the sae or auction. Apparently the motive behind it is to create a hurdle in the way of the vendee for his on benefit, because the vendee is compelled in many cases to dish out large sums of money as a price for the withdrawal of the suit by the plaintiff".
9. Learned counsel for the petitioner argued that Mst. Surriya Begum mother of Fazal Elahi minor had no source of income and for that reason it can be deduced that the minor has instituted the suit for the benefit of the services through this mother. On the contrary learned counsel for Fazal Elahi argued that in the aforesaid rulings relied upon by the learned counsel for the petitioner/rival premtors the findings were in favour of the rival pre-emptor on the ground that the suit was tiled by the minor in collusion with his father for the benefit of his father (vendor) which was for the purpose of creating a. Hurdle in the way of the vendee while in the instant matter the assertion raised by the rival pre-emptor is that the suit is in collusion with the vendees. He added that Mst. Surriya Begum is the mother of the minor who acted as his next friend and that the pre-emptor has not to prove his. Sorce of income, In this regard he relied on some rulings which shall be projected infra while disposing of the dispute in had.
10. In my view the rulings relied upon by the learned counsel for the petitioner, viz: Naseer Ahmad vs. Arshad Ahmad (PLD 1984 Supreme Court 403) and Tasleem Hussain vs. Fateh Sher (1989 MLD 1809 Lahore) are not applicable to the instant matter for the reason that in those rulings the alleged collusion was between the minor pre-emptor and the father(vendor) and it was he that the suit was instituted to put the hurdle in the way of the vendee for his on (vendor's) benefit. In the instant matter the assertion of the rival premptor Roora, at present represented through his legal representatives due to his death, is that the suit was instituted in collusion with the vendees. The aforesaid exceptional circumstance has made me to hold that the rival pre-emptor Roora has failed in his enterprise to establish the collusion between Fazal Elahi minor pre-emptor and the vendees who are also minors at the time of the purchase of the suit property and the institution of the suit for possession by pre-emption.
11. First of all I would rely on Amar Chand minor through Mst. Kauli vi. Neem Chand (AIR(29) 1942 Allahabad 150) wherein the observations with respect to the "next friend" and "guardian-ad-litem" have been clarified which read as under:- "The expression "a next friend" originally denoted the person through whom an infant acts without any necessary reference to litigation but in modern times it has come to assume a technical meaning of the person by whom a minor or an infant, as the case may be, is represented as a plaintiff in litigation. The retd object of having a next friend is that there may be somebody to whom the defender or the opposite party may be able to look for costs. The next friend himself does not actually become a party to the litigation. It is the minor who is the party and the next friend is a person-so to speak in the back ground- who can act on the minor's behalf and to whom opposite party can look for costs. Now there is one other peculiarity to notice in the position of a next friend.
As every one knows, a minor who is a defendant to a suit is represented by a gurdian ad litem.
There is this difference between a guardian ad litem and a next friend that, whereas a guardian ad litem is constituted by an order of the Court, a next friend automatically constitutes himself by taking steps in the suit".
11 The aforesaid aspect of the matter has made out that the institution of the suit by Mst. Surriya Begum as the next friend of her minor son Fazal Elahi is not fatal in the matter so as to bolster up the stand of the rival pre-emptor Roora.
12. It has been held in Mahr Bakhsh and an other vs. Moula Dad and an other (PLD 1951 Lahore 113) that a pre-emptor does not claim through or under the vendor or the vendee who asserts a right to be substituted for the vendee and the right to be substituted for the vendee and the right of pre- emption exists antecedently to the sale which is a condition precedent not to the existence of the right but to its enforcibility. It has also been held therein that if the plaintiff has a legal high to pre- empt, it is unnecessary of the Court to sonsier from which source he is going to procure the pre- emption money. It shall not be out of place to refer to Noor Khan vs. Sultan Khan and others (Case No. 1323 of 1910) (89 Punjab Record 1912) that the plaintiff has an independent right of pre-emption and the mere fact that he is a minor and as such under the guardianship of his father, the vendor, is insufficient to establish acquiescence on his part in the sale in question. It has been ruled while deciding civil revision No.276 of 1910 (7 Punjab Record 1912) that the Courts are not concerned with the questions .Where the pre-emptor is raising the money and what he is going to on with the land.
It has particularly been mentioned in this ruling that if in any such case the pre-emptor is buying the property for an outsider and if after securing the property he transfers it to the later it may be open to an other pre-emptor to challenge the second transfer and to claim pre-emption in respect thereof and this right is, therefore, a sufficient safeguard against Benami transaction of the kind.
This observation is equally applicable with respect to the alleged collusiveness which does not stand established by the production of the evidence that Mst. Surriya Begum Has no property and source of income and that the suit tor possession by pre-emption was instituted by Fazal Elahi minor in collusion with the vendees. I would- express my view that relationship of a father (vendor) towards his minor son (pre-emptor) towards the stranger vendee(s) and on this ground the minor can back out after obtaining a decree for possession by pre-emption in collusion with the vendees.
If he gets a decree in collusion with the father(vendor),which is nit a fact in issue, that would carry adverse impact end the watter would be simply different as the property would remain in the same family. The collusion of a minor pre-emptor with the vendees thus has to be considered on a different footing especially when the minor would transfer the property in favour of the stranger vendee(s), as expressed and held above, the fresh suit tor pre-emption can be instituted. Thus the defence, raised by the rival pre-emptor Roora since deceased at present represented by his legal representatives has no legal force which does not stand established. It has also been held in Lal Din vs. Allah Dina and others (PLD 1967 Lahore 703) that suit of plaintiff/pre-emptor can fail only if it is established that he is Benami and that real owner of property after decree would be an other person and that the suit cannot fail on the ground that the pre-emptor has been financed by other person or that he has entered into some agreement to transfer property subsequently in favour of some other person. Since the minor has the legal right to institute the suit for possession by pre- emption which is a right of substitution in the circumstances of the matter, it can safely be held that Roora rival preemptor has failed to establish that the suit has been instituted in collusion with the vendees and tor their interest. I, therefore, hold that the findings of the learned lower appellate Court do not surfer from any of the ingredients .Of section 115 Civil Procedure Code and it has rightly been held that Fazal Elahi re-emptor has the first preference to a decree for possession by pre- emption being the son of Nadir Khan vendor.
2. For that has been said above, I see no merit in this revision petition and dismiss the same with costs.