HAQ NAWAZ vs MUHAMMAD JAN
This appeal before the Supreme Court of Pakistan addressed whether the High Court was justified in interfering with concurrent findings of fact by the trial and appellate courts, which had determined that a transaction ostensibly labeled as a 'gift' (Hibba) was, in reality, a sale subject to the right of pre-emption. The appellant, a preemptor, challenged the High Court's revision judgment, which had set aside the lower courts' findings on the basis that no price was proven to have been fixed or paid. The Supreme Court observed that the lower courts had correctly identified that the donor and donee lacked the requisite relationship or affection typically associated with a gift, and that the transaction was motivated by a prior, unfulfilled sale agreement between the parties' fathers. The Supreme Court held that the absence of direct evidence regarding the fixation or payment of a price does not preclude a finding of sale where surrounding circumstances clearly indicate the transaction is not a gift. Consequently, the Court restored the concurrent findings of the lower courts, ruling the transaction was a sale and thus pre-emptible.
- Can a court determine that a transaction is a sale subject to pre-emption even in the absence of direct evidence regarding the fixation or payment of a price?
- Is a High Court justified in interfering with concurrent findings of fact by lower courts regarding the nature of a transaction if no misreading of the record is established?
- Does the lack of a familial relationship or affection between donor and donee serve as a relevant factor in determining whether a transaction is a gift or a sale?
- Section 4, Punjab Pre-emption Act 1913
SHAFIUR RAHMAN, J.--Leave to appeal was granted to the preemptor/plaintiff to examine whether the High Court had by its judgment dated 9th of December, 1985 justifiably interfered with a concurrent finding of fact recorded by the two Courts that the transaction effected by registered gift deed was in fact a sale which was pre-emptible.
2. Allah Nawaz was possessed of 4 Kanals 7 Marlas of land out of which, on 18-9-1980, by a registered gift deed he parted with four Kanals in favour of the respondent. The appellant instituted a civil suit contending that what was ostensible a gift, in fact was a sale and pre-emptible by anyone having the superior right of pre-emption over the vendee. The contest between the parties centered round issue No,4 i,e,, whether the transaction in question is that of sale and not Hibba?
OPP. The trial Court decided it as hereunder:-- "Normally a gift is made to a person who has rendered some service to the donor, or there is some relationship, affection, love etc. Here there is no such thing. The donor has children and other heirs too.
' From the entire evidence of the plaintiff it is proved that the transaction is not a gift. It is a worthmentioning that evidence produced by plaintiff to disprove the gift is quite consistent to the defence evidence. The intention of the donee and donor is not proved.
' The upshot of my discussion is that the transaction is not Hibba."
3. The District Judge, on appeal, also attended to the same question as hereunder:-- "It is an admitted fact that the donor is not related with the defendant/appellant and both of them are almost of the same age. Donor is the resident of the village in which the suit property lies, while the defendant/appellant is permanently putting up at Dera Ismail Khan City in a suburb area known as Basti Ustrana for the last 10/12 years. He is driver by profession. It is also on the record that not the defendant/appellant, but his maternal-uncle looked after the transferor after the death of his father alongwith his mother. The transferor is not a big landlord and is a family man. It is there on the record that with regard to the suit property, the father of the transferor entered into a sale transaction with the father of the defendant/appellant, but the said bargain could not be brought in the revenue papers through a registered deed or a mutation and the transferor by way of his moral obligations, wanted to pay of the debt on the shoulders of his late father.
' This would lead me to the conclusion that the transaction was not a gift, but a sale simpliciter and hence pre-emptible."
4. When the matter came to the High Court in revision, the learned Judge held that he could interfere with the concurrent finding of fact on account of misreading of record, but no misreading of the record was noticed. The definition of sale was examined and it was found that there was no evidence to show that any price was fixed or paid and for that reason, he held that the transaction was not proved to be not gift. Hence, he declared it to be not pre-emptible as a gift.
5. The learned counsel for the appellant has referred to section 4 of the Pre-emption Act which empowers the Court to hold that an alienation purported to be other than a sale is in fact a sale and he has drawn attention to Tara Chand v. Baldeo and others 117 Pb. Records 1890, Chiragh Din v.
Allah Din and another 129 Pb. Records 1916, Hayat All and another v. Ghazan represented by the heirs 1981 CLC 456 and Yahya Gul and another v. Yahya Jan and another PLD 1968 Pesh. 122 to establish that what are the factors ordinarily taken into consideration for declaring an ostensible gift, a sale. According to him, all the requirements are herein satisfied and something more.
6. The learned Judge in the High Court took note of a document Exh.D.W.1/1 which was in fact an unregistered sale-deed in respect of two Kanals out of four Kanals of the disputed land by the father of the donor to the father of the donee. Both the parties stand by that sale and the donor says that it was on account of that sale that he made the gift which was the subject-matter of the pre-emption suit. This plea itself is self-contradictory. If the land stood sold, no further gift of it could be made. If the land had not been sold, then alone a gift or resale could take place. It appears that though orally both the parties stood by that earlier sale, they repudiated it by making it the subject-matter of the gift. The gift has no basis except for earlier sale and that fact had been admitted by Allah Nawaz himself. Therefore, there was no occasion for Allah Nawaz to make a gift and that conclusion itself is established from the facts noted by the two Courts concurrently, recording a finding of fact.
7. It is true that there is no evidence about a price having been fixed or paid as between Allah Nawaz and Muhammad Jan but the attending circumstances, as has been brought on record, are sufficient to establish that it was a sale. Hence, it was pre-emtible.
8. The appeal is allowed. The judgment of the High Court is set aside and that of the trial Court and the first appellate Court restored.
Cited by 3 cases
- Wali Muhammad vs Muhammad Rafique, Etc. K.L.R. 2013 Civil Cases 107
- Muhammad Azam And 11 Other vs Muhammad Nawaz And 8 Other K.L.R. 2006 Revenue Cases 57
- HABIB ISMAEEL vs MUHAMMAD AYYUB and 4 others 2000 YLR 1440