RAB NAWAZ Versus ANWAR ALI

The main subject of this judgment is "the words" required for the expression of Talb-i-Muwathibat by a pre-emptor under sub section (1) of section 13 of the Punjab Pre-emption Act, 1991.

2. The words of demand employed by the petitioner/pre-emptor on knowledge of the sale, were held by the learned subordinate Courts not to constitute expression of Talb-i-Muwathibat in terms of section 13(1) of the Punjab Pre-emption Act, 1991. The petitioner was thus concurrently adjudged to have failed to declare Talb-i-Muwathibat.

On Talb-i-Ishhad, it was held that the petitioner produced in evidence the five postal receipts to show dispatch of the five notices of Talb-i-Ishhad but tendered only three acknowledgement due memos. wherefor the petitioner was pronounced to have failed to prove dispatch of the five' notices of Talb-i-Ishhad through registered A/D mail as well.

3. The revision petitioner Rab Nawaz (pre-emptor/plaintiff) was thus non-suited through judgment and decree dated 8-9-1992 of the learned Civil Judge and his appeal was also rejected by the learned Additional District Judge; Shorkot, vide judgment and decree dated 10-9-1998. Hence this civil revision.

3-A. The learned counsel for, the parties state that the only issue requiring decision in this civil revision is the issue of demands, i.e, Talbs and that all other issues stand settled by the learned subordinate Courts.

4. The learned counsel for the parties have been heard.

5. The questions herein are as to whether upon knowledge of the sale, the words employed by the petitioner constituted the expression of Talb-i-Muwathibat or not and that whether production of only three acknowledgement due memos: in the evidence instead of five, was to be construed as failure of the petitioner to serve the notices of Talab-i -Ishhad though he had produced in evidence five postal receipts as, exhibits P.1 to P.5.

6. In his plaint the petitioner pleaded and then deposed in his statement that on acquiring knowledge of the sale, he immediately stated in the came Majlis that:-

7. The learned Courts did not accept the above words as the expression of Talb-i-Muwathibat by the petitioner who was thus non suited.

8. It appears that the learned Courts below overlooked the definition of Talb-i-Muwathibat provided in Explanation-1 of section 13(1) of the Punjab Pre-emption Act 1991 which reads as under:---

EXPLANATION

1. "Talb-i-Muwathibat' means immediate demand by a pre-emptor, in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre emption.

Note: Any words indicative of intention to exercise the right of pre-emption are sufficient".

9. The above provision of law while defining Talb-i-Muwathibat did not prescribe any particular form, format, words, phraseology or terms to constitute Talb-i-Muwathibat. Neither did section 13 Explanation-I set out a mode, method, modality or manner for making Talb-i-Muwathibat.

10. Section 13 of the Act and Explanation-I/ therein logically and rationally define Talb-i-Muwathibat as the immediate demand by a pre emptor " declaring his intention to exercise the right of pre emotion " in the sitting to which he acquires knowledge of the sale. Note td the Explanation further explains the rule by prescribing that "Any words indicative of intention to exercise the right of pre-emption are sufficient".

11. The Note has not restricted a pre-emptor to some given words. It has left the words to the choice, option, capacity capability, knowledge, morality, habit, training, education and social make-up of the intending pre-emptor. A pre-emptor thus has to declare his intention to pre-empt a transaction in any words that are clearly indicative of such intention. If the words used by a pre-emptor are sufficiently indicative of or are sufficient indicators of his clear intention to exercise right of pre emption, the basic requirement of Talb-i-Muwathibat and of the law are duly met by a pre-emptor.

12. The terms "indicate", "indication" and "indicative", according to The Oxford Universal Dictionary, mean as under.

Indicate: To point out, point to, make known, show (more or less distinctly). To point as a remedy or treatment. To be a sign or symptom of. To point out, direct attention to. To point to with the hand or by gesture: To state or express; to express briefly, lightly, or without development; to give an indication of.

Indication: The action of indicating; that in which this is embodied; a hint, suggestion. A suggestion or direction as to the treatment of a disease, derived from the symptoms. A sign, token or symptom an expression by sign or token.

Indicative: That points out, states, or declares; applied to that mood of a verb which states a relation of objective fact between the subject and predicate. That indicates, points out, or directs; that hints or suggests. The indicative mood; a verb in the indicative mood.

In Black's Law Dictionary Fifth Edition, 1979 publication, concise and opt legal meanings of the above words are:

Indication: In the law of evidence, a sign or token, a fact pointing to some inference or conclusion.

Indicative Evidence: This is not evidence properly so called, but the mere suggestion of evidence proper, may possibly by procured, if suggestion is followed up.

13. Viewed from the above dictionary meanings, the term "indicative" in the Note to the Explanation-I of Section 13(1) ibid expands the definition of Talb-i-Muwathibat and broadens its scope even to the suggestive words signifying the intention to exercise right of pre-emption. It thus enables each and every intending pre-emptor to declare, state or express such intention according to his capability and capacity. It is for this reason that Explanation-I and Note define Talb-i-Muwathibat as "the declaration of intention----"through any words" which if indicative of such intention are to be accepted as "sufficient".

14. The "Note" is explanatory, permissive and also illustrative. Its scope cannot be restricted by reading into it a particular set of words as the prescribed words when none has been so prescribed. Even otherwise, the Note cannot limit the clause i.e. Explanation-I which defines Talb-i-Muwathibat as declaration of the intention only but without laying down the mode of such declaration to be in words or in particular words. It is therefore evidence that the format of the indicative words is insignificant as long as intention to exercise the right is clearly discernible from the words uttered by a pre-emptor on coming to know of the sale.

15. The logic and rationale of not prescribing in the Statute a definite form and mode for expressing Talb-i-Muwathibat is not difficult to comprehend. Human expressions cannot be standardized. The words and expressions of each man are normally different from the other. The linguistic constructions and combinations vary from person to person. Such is the variety of the human expressions. Occasionally the words can, be the same but not expressions. God has willed the human beings to be so. It is in their Divine design and also in their evolution to remain different despite homogeneity of influences of the families, cultures, societies, systems, religions, moralities, education, genes and orientations. No law, therefore, can or be expected to provide for a straight jacket or "one-size-fit-all" formula for the personal behaviors, acts or expressions for all the citizens of the State. Otherwise being non compatible to the normal and natural human conduct, its enforcement will remain questionable.

16. There is no doubt that the words of the pleading and the depositions must accord to the language of the law and the language of the law to the meaning of the law. The forms, the combination of words and the modes of expression cannot however be allowed to stifle the purpose of law. The object of law cannot give in to the crafty or non-crafty drafting expressions. The words of t pleadings or the depositions may be feeble or strong or expressive reflective but such words cannot be decisive in a case. What is to prevail is the word of law and not what is merely presumed to be the law or that what is evolved as the language or the mode of a legal requirement.

17. The note presupposes the use of words and seemingly reveals that the Legislature in its wisdom has required the expression of Talb-i- Muwathibat to be in "words" (that are "indicative "of the intention to exercise the right of pre-emption"). In the art of communication and phonetics words are but only symbols used as the tools of expression and are as such a medium to state or indicate the mind. The term "indicative" as employed in the "Note", therefore, leads me to believe that the key to the lock may not be the "words" but the "indication of the intention." It is apparently for this reason that the definition of Talb-i-Muwathibat in Explanation-I of section 13 (1) ibid does not mandate declaration of "the intention" to be in words. Otherwise it will give rise to many questions i.e:.-

--- Is the use of `words' fatally essential to declare the intention constituting Talb-i-Muwatibat?

--- Can the intention be indicated in mediums other than that of the words?

--- If not, can this provision of law be applied evenly to all the citizens of the State without exceptions?

--- Is this provision of law inapplicable or discriminatory to the special persons who are dumb or are under an incapacity or an inability to speak in words either temporarily or permanently (if not otherwise under a legal incapacity);

--- Can the 'Note' be liberally construed in absence of the requirement of "words' in the Explanation-I of the section 13 (1) ibid for declaring the intention to exercise the right of pre emption; or

On the premise that the No a permits "any words" to express Talb-i-Muwahibat, it expands the definition given in Explanation-I of section 13(1) ibid, but on the other premise that the Note binds a pre-emptor to the use of "words" for expressing Talb-i-Muwathibat, is it restrictive of the Explanation-I which does not so prescribe.

18. The answers can be endeavoured But these questions were not pleaded or raised in this case. No legal assistance thus forth came. This Court therefore acting cautiously will abstain from further interpreting the meaning of the `Note' to Explanation-I of section 13(1) of the Punjab Pre-emption Act, 1991 beyond the above recorded opinion. Another reason is that the right of pre-emption is a substitutive right to be interpreted strictly and carefully in terms of the legislative instrument. The above questions are therefore left to be determined in an appropriate case after a full legal debate or otherwise the Legislature may resolve the tangle of words through a clarificatory amendment in the "Note" to Explanation-1 of section 13(1) of the Act of 1991.

19. Turing to the present case, the petitioner/pre-emptor on gaining knowledge of the sale stated that "I have a right of pre-emption, you should receive your amount of Rupees forty thousand and restore the suit land to me". These words for the above recorded reasons and even otherwise adequately revealed the intention of the petitioner/pre-emptor to exercise his right of pre-emption. As such the learned subordinate Courts committed a material irregularity and denied the, right as well as the remedy to the petitioner/pre-emptor who clearly indicated his intention to seek return of the land by asserting his superior right of pre emption.

20. Reliance was placed by the learned subordinate Courts and by the learned counsel for the respondent on the judgment of Muhammad Saeed v. Mst. Hajiani Noor Bai and others (1983 CLC 1883) to contend that mere assertion of the superior right of pre-emption was not adequate but statement to exercise the right of pre-emption was essential for Talb i-Muwathibat and to maintain a suit. I am afraid the case of Muhammad Saeed (supra) is inapplicable. This case was decided on 18th August, 1983 long before the decision in the case of the Government of N.-W.F.P. v. Malik Said Kamal Shah (PLD 1986 SC 360) by the Honourable Supreme Court of Pakistan. Further that the Punjab Pre emption Act was promulgated for the Punjab in 1991 legislating Islamic Law of Pre-emption and defining its requirements including those of Talb-i-Muwathibat (in section 13(1) ibid). Reliance on the case of Malik Said Kamal Shah (supra) by the learned Courts below was thus inapt.

21. Adverting to the notice of Talb-i-Ishhad, I am of the opinion that the learned Courts below also failed to properly exercise jurisdiction vested in them. They neglected to determine the effect of (Exhibit P.1 to Exhibit P.5) i.e. postal receipts of sending the notices of Talb-i-Ishhad through registered A/D. These postal receipts for all five notices were produced in evidence as Exhibits P-1 to P-5 by the petitioner. The petitioner/pre-emptor however produced only three acknowledgment due memos. in evidence. His clarification was that these were the only memos received back by him from the postal authorities but he had tendered due evidence of dispatching notices through registered A.D. mail. Under these circumstances, the learned subordinate Courts were under a legal duty to adjudge the effect of non-transmission of the Registered A/D memos. to the petitioner by the postal authorities particularly in view of the postal receipts (Exhibits P-1 to P-5) for transmission of all the five notices of Talb-i-Ishhad through registered A/D mail.

22. For the above stated reasons, I believe that the learned Courts below have neither properly interpreted the law nor have they correctly, applied the law to the facts of the present case. The narrow construction adopted by the learned Courts below being fatal to the rights of the petitioner is disapproved. This civil revision is therefore accepted. The Judgment and decree of the learned Additional District Judge dated 10-9-1998 is set aside. This Court being the revisional Court is not inclined to assume the role of the First Appellate Court in examining the questions of the date and place etc. of making Talb-i-Muwathibat or the effect of the postal receipts in the perspective of evidence produced by the parties The case is remitted back to the learned First Appellate Court for re-decision. The appeal shall be deemed to be pending before the learned First Appellate Court. The appeal shall be re-decided in accordance with the provisions of the law and in view of the observations made by this Court as above. The learned Additional District Judge Shorkot shall re-hear the parties on issue No.6 only as all other issues already stand decided and settled. The parties shall be given due opportunity of full hearing on the issue of Talbs i.e. No.6 except on questions herein decided. The appeal shall be decided with dispatch.

23. There shall be no order as to the costs.

M.H./R-81/L Case remanded.