IMAM vs SAIFUR REHMAN
This matter arises from a petition for leave to appeal against the dismissal of the petitioners' regular second appeal by the High Court, upholding the pre-emption decree granted in favor of the respondent, a minor suing through his mother as guardian-ad-litem. The core legal question raised by the petitioners is whether a pre-emption suit filed by a minor having no independent means of his own can be assumed to be a benami transaction or a fraud on the statute orchestrated by the vendor-father for his own benefit. The Supreme Court noted the importance of the question and the conflicting contention that a minor's right of pre-emption cannot be defeated on such grounds. The court held that the question requires an authoritative pronouncement and granted leave to appeal to consider the same, while ordering that the stay previously granted shall continue.
- Whether a pre-emption suit filed by a minor having no independent means of his own can be treated as a benami transaction or fraud on the statute by the father?
- Can a minor's right of pre-emption be defeated on the ground that the suit was filed in collusion with or for the benefit of the vendor-father?
ORDER
ASLAM RIAZ HUSSAIN, J.-Muhammad Iqbal and Shah Muhammad sold 427 kanals 3 marlas of land to Imam etc., petitioners, but Saifur Rehman the minor son of Muhammad Iqbal filed a suit to pre- empt the sale through his mother Mst. Zaitoon Bibi as his guardian-ad-item. Younas, the son of Shah Muhammad, the other vendor, also joined in the suit but subsequently withdrew from it. The suit was decreed by the trial Court. The appeal filed by Imam etc. (vendees) before the District Judge was dismissed and the R. S. A. Filed by them met the same fate. Hence the present petition.
2. The learned counsel for the petitioner submitted that in view of the fact that Shafi-ur-Rehman respondent was a minor and had no independent `means of his own, it is apparent that Muhammad Iqbal vendor himself got the suit filed in collusion with his wife (Mst. Zaitoon Bibi), for his own benefit, using the name of his minor son for this purpose. In support of his contention the learned counsel for the petitioner cited authorities wherein it has been held that where a minor having no means, purchase property it can be assumed by the Court that it was a benami transaction and it was, in fact, the father who had purchased the property in the name of his son, for his own benefit and had paid for it. Learned counsel for the petitioner submitted that in the present case also a similar assumption can he safely made, namely, that it is the father who had, in fact, got the suit filed through his wife in the name of his minor son for his own benefit. He contended that this amounts to fraud on the Statute and misuse of the process of Court.
3. The respondent-caveator on the other hand relied on Nazar Muhammad v. Sardar Muhammad etc. (11 L L J 220), to contend that minor's right of pre-emption cannot be defeated on this ground.
The question raised is of considerable importance which requires an authoritative pronouncement by this Court. Leave is, therefore, granted to consider the same.
Security in the sum of Rs. 2,500.
4. Stay already granted by this Court shall continue and the case be fixed for hearing during this year.