KARAM DIN And Others vs MUHAMMAD KHAN And Other
This matter arose from two pre-emption suits filed by the respondents against the petitioners, challenging two land transactions. The first transaction was a registered sale-deed executed by one Khair Din, and the second was a transaction of land from Khair Din's wife, Mst. Rajo, which was ostensibly executed as a gift. The respondents contended that the gift transaction was actually a sale disguised as a gift to defeat their superior pre-emption rights. The trial court dismissed the suits, finding the transaction to be a gift. However, the District Judge and the High Court reversed this, finding the transaction to be a sale. On petition for leave to appeal, the Supreme Court of Pakistan affirmed the concurrent findings of the lower appellate courts. The Court held that the determination of whether a transaction is a genuine gift or a sale disguised as a gift is a question of fact. Finding no question of law and no reason to disturb the concurrent findings of fact, the Supreme Court dismissed the petitions.
- Whether a transaction ostensibly executed as a gift can be scrutinized by courts to determine if it was actually a sale disguised to defeat pre-emption rights?
- Does a finding on whether a transaction is a gift or a sale constitute a question of fact or a question of law?
- Can a vendee successfully defeat a pre-emption suit under Section 21-A of the Punjab Pre-emption Act 1913 if the transaction relied upon to improve their status is found to be a disguised sale rather than a genuine gift?
- Section 21-A, Punjab Pre-emption Act 1913
ORDER
NASIM HASAN SHAH, J.--This order will dispose of Civil Petition No. 511 of 1985 and Civil Petition No. 512 of 1985 because the dispute in both the matters is between the same parties and common questions of fact are involved therein.
2. The petitioners purchased land measuring 100 Kanals 14 Marlas from one Khair Din by a registered sale-deed, dated 24-1-1967 for a consideration of Rs.43,000. Three days thereafter 'the petitioners also acquired land measuring 15 Kanals 10 Marlas from the wife of the aforesaid Khair Din, namely, Mst. Rajo. This land was acquired ostensibly by way of a gift and the transaction in this respect was evidenced by Mutation sanctioned under No. 4435, dated 27-1-1967.
3. On 23-1-1968, the respondents brought a pre-emption suit (Suit No. 45/113) questioning the last- mentioned transaction. It was asserted that the said transaction in fact was a sale and not a gift as that the land comprising therein was sold by Mst. Rajo to the petitioners for Rs.500 but to defeat the superior right of pre-emption of the respondents herein they had fraudulently got a mutation attested showing the transaction to be a gift.
4. The sale made by Khair Din, dated 24-1-1967 in favour of the petitioners was also questioned, by a separate pre-emption suit on the plea that they were owners of the estate and co-sharers in the Khata and had a preferential right qua the petitioners.
5. The fate of both the suits, thus, rested on the determination of the question as to whether the transaction evidenced by Mutation No. 4435 was a gift or a sale? If it was found to be a gift the petitioners' case would be covered by section 21-A of the Pre-emption Act which recognises the improvement in the status by a vendee before the institution of the suit and not only would the suit directed against the said transaction be liable to dismissal but also the other suit directed against the sale effected by registered sale-deed, dated 24-1-1967, because the petitioner's having improved their status before institution of the suit would be successful in defeating the erstwhile superior right claimed by the respondents in the said suit. The crucial issue in both these suits was, therefore, whether the transaction is, in fact, a sale and not a gift?
6. The trial Court decided this issue in the negative and held that the sale was not proved.
Accordingly, the Suit No. 45/113 was dismissed. Resultantly, the other suit was also decided against the respondents because the vendees were held to be the owners of the estate on the strength of the gift and become co-sharers in the Khata.
7. On appeal filed by the respondents herein, the District Judge, after analysing the nature of the transaction in question came to the conclusion that the plea of the respondents that it was a sale but labelled as a gift was correct. Both the appeals were, accordingly accepted and the judgment and decree of the learned trial Court reversed. The petitioners, therefore, challenged the said judgments before the High Court by way of appeals, but the learned Judge in the High Court upheld the view of the learned District Judge and dismissed both the appeals. Hence these petitions for leave to appeals.
8. Mr. A.R. Sheikh, learned counsel for the petitioners in both the cases and Ch. Khalil- ur-Rehman on behalf of the respondents have been heard.
9. The question agitated before us, namely, whether the transaction in question is really a gift as mentioned in the mutation and not a sale disguised as a gift with a view to defeating the rights of the pre-emptor is manifestly a question of fact. Both the learned District Judge and the High Court, after carefully appraising the evidence and analyzing all the relevant circumstances found that the transaction in question was a sale, but given the colour of a gift to defeat the right of prospective pre-emptor. After having carefully heard the learned counsel for the petitioners in support of his plea that this finding of fact merits reversal we are not persuaded to agree.
10. No question of law arises in this case and even otherwise the finding of fact recorded by the learned District Judge and upheld by the High Court, also appears to us to be perfectly correct.
11. Both these petitions, therefore, fail and are accordingly, dismissed hereby.