GULZAR KHAN vs Mst. SHAHZAD BIBI AND ANOTHER

ORDER

1. ANWARUL HAQ, J.-This petition for leave to appeal has arisen out of a pre-emption suit filed by the present petitioner, Gulzar Khan, in respect of agricultural property measuring 51 kanals and situate in Village Khushab, which was sold by his brother Faujdar Khan, in favour of his wife. Mst. Shahzad Bibi, for an ostensible price of Rs. 500 by a registered deed dated 31-10-1956. It was recited in the deed that the sale waft being made in consideration of the sum of Rs. 500 owed by the vendor as a debt for prompt dower of the vendee.

2. The suit was resisted by Mst. Shahzad Bibi on the ground that the transaction was not pre- emptiable as it was not a sale but a gift by her husband in lieu of dower.

3. The learned trial Judge dismissed the suit on the preliminary ground that the plaintiff did not have a superior right of pre-emption as compared to the vendee under the Muslim Law of inheritance.

4. This finding was, however, reversed by the learned Senior Civil Judge in appeal, and the suit was remanded to the trial Court to decide the issue whether the transaction was pre-emptiable. The trial Court held that it was so, as the transaction was a sale and not a gift. This finding was upheld in appeal by the learned Senior Civil Judge. In second appeal before the High Court it was contended on behalf of the vendee that the transaction, being a gift and not a sale, was not pre- emptiable ; and that, in the alternative, the parties were at par as regards the right of pre-emption.

5. The learned Judge in the High Court accepted both the contentions, but observed that the finding as regards the equality of the right of pre-emption of the parties could not be given effect to as the vendee had not appealed against the order of remand, passed in the first round of litigation by the learned Senior Civil Judge in appeal, whereby he had held that the present petitioner had a superior right. However, on the finding that the transaction was not a sale, the vendee's appeal was allowed.

6. Leave to appeal is sought on two grounds-

(a) that the High Court has erred in thinking that the transaction was a gift and not a sale ; and

(b) that in any case, the High Court was not competent, while acting in second appeal, to disturb the concurrent finding of fact recorded by the two Courts below as to the nature of the transaction."

7. We find that the learned Judge in the High Court has placed reliance on Dorab Khan v. Mst. Sabyani (AIR 1935 Bom. 234) for reaching the conclusion that the transaction in dispute was to be treated as a gift and not a sale. While delivering the judgment of the Court, S. A. Rahman, J. (as he then was), observed that such a transfer may have some incidents of a sale proper and, therefore, may be described as tantamount to a sale for certain purposes but according A to. The view consistently adopted so far as the Lahore High Court was concerned, such transaction is not subject to a right of pre-emption as it involves an element of gift. Even the authorities cited on behalf of the preemptor, leave the question, whether such a transaction should be regarded as a sale or not to be decided on the facts of each case." In the body of the judgment a large number of cases were noted by the learned Judge. After perusing the judgment, we find ourself in respectful agreement with the view taken in this case, and consider that the position is not altered by the obiter dictum in Mahabir Prasad and another v. Syed Mustafa Hussain and others (168 1 C 418), relied upon by the learned counsel. The point was not specifically discussed by their Lordships of the Privy Council and they simply remarked that in a number of cases such a transaction had been regarded as being in the nature of a sale. We are of the view that the considered opinion formed by the Lahore High Court in the case of Dorab Khan mentioned above, is the correct view to take in such cases, and no justification is made out for any departure therefrom.

8. On the second contention, the learned counsel has placed reliance on Budlia Mal v. Gulab' and others (36 P R 1899) and Sundar Dos v. Dhanpat R.I and others (16 P R 1907). Those were cases in which the question of the true nature of the transaction had been decided on the basis of certain inferences to be drawn from the recital in the deed as well as the other evidence adduced by the parties. It was held that in these circumstances the finding was a finding of fact.

9. While it is undoubtedly correct that an inference drawn from evidence amounts to a finding of fact, yet it is well settled that the question of the proper construction of a document is a question of law and not of fact. In the present case, the question turns solely on the construction of the document by which the transaction was evidenced and therefore, the High Court was right in regarding this as a question of law and giving its own interpretation, an interpretation with which we agree.

10. The petition accordingly fails and is hereby dismissed.