MUHAMMAD ASHRAF and 2 others vs ZAHOOR' MUHAMMAD SAROHI
This appeal arose from a pre-emption suit where the vendee-defendants challenged the application of the doctrine of sinker. The land in question was sold to three vendees, with one vendee possessing an equal right of pre-emption to the plaintiff. The trial court applied the doctrine of sinker, holding that because the purchase price was paid in a lump sum rather than specified per vendee, the transaction was indivisible, thereby allowing the plaintiff to succeed. The core legal questions were whether the doctrine of sinker applies when shares are specified but the price is not, and whether the doctrine must be explicitly pleaded in the plaint. The Supreme Court held that the doctrine of sinker applies to indivisible transactions where the purchase price is not allocated per vendee, regardless of specified shares. Furthermore, the Court established the principle that a plaintiff is not required to plead the doctrine of sinker in the plaint, as doing so would unfairly require the anticipation of a defense. Consequently, the appeal was dismissed, affirming the lower court's decision.
- Does the doctrine of sinker apply when the sale shares are specified but the purchase price is paid in a lump sum?
- Is a plaintiff required to explicitly plead the doctrine of sinker in the plaint to rely upon it?
- What constitutes an indivisible transaction in the context of the law of pre-emption?
' FAZAL KARIM, J.---This appeal by the vendee-defendants in a preemption suit has arisen in the following circumstances.
2. The land in suit was sold by Waseem Ahmad Ali and Sameena Kausar vendors to the vendee- defendants, now appellants, named Muhammad Ashraf, Muhammad Sadiq and Ibrahim in the following shares: 1/2 to Muhammad Ashraf and Muhammad Sadiq and the other half to Ibrahim.
The plaintiff, respondent herein, sued to pre-empt the sale on the ground that he was a9 owner in the estate. The appellants contested the suit by filing a joint written statement, among others on the ground that the plaintiff had no right of preemption. The learned trial Judge found that the plaintiff had a right of preemption but that Ibrahim defendant has also such a right equal to that of the plaintiff. As the other two vendees Muhammad Ashraf and Muhammad Sadiq had no such right, the learned trial Judge applied the doctrine of sinker and held that Ibrahim's right of pre- emption was not sufficient to defeat the plaintiff's suit. On appeal, the District Court dismissed the suit but on the plaintiff's second appeal, the learned Judge in the High Court restored the learned trial Judge's decree dated 25-2-1979.
3. Leave to appeal was granted to consider whether in the facts of the case the doctrine of sinker was rightly applied.
4. Learned counsel for the appellants referred us to the mutation entries to point out that the shares of the vendee-defendants were specified; he also referred to the sale agreement dated 5- 7-1974 to point out that the sale was for Rs,5,000 per Killa. In his view, therefore, this was a case in which not only the share of each vendee was specified but also the sale price paid by each was specified and at least was easily ascertainable. For his contention, he mainly relied upon "Muhammad Riaz v. Fateh Muhammad" (PLD 1991 SC 1099). He argued also that in order to succeed on the principle of sinker, the plaintiff must rely upon that principle in his pleadings. For this contention, he relied upon "Mst. Karim Bibi and others v. Zubair and others" (1993 SCM R 2039).
5. The doctrine of sinker is a well known doctrine in the law of preemption. "Where a vendee having an equal or superior right of pre-emption associates a stranger i,e, a person having an inferior right of pre-emption then the pre-emptor, the rule of sinker will apply and the pre-emptor's suit decreed, unless the impugned sale is divisible i,e, it is a sale wherein not only the share of each vendee is specified but the amount paid towards the price by each vendee is also specified". "Mir Ahmad v.
Attaullah alias Atta Muhammad" (PLD 1991 SC 210). And a transaction is regarded as indivisible if "the purchase money for a sale is paid in a lump sum without specification of theamounts paid by each of the vendees, though the shares to be taken by the various vendees may have been specified in the deed". "Abdullah v. Abdul Karim" (PLD 1968 SC 140). Here Ibrahim defendant was proved to have an equal right of pre-emption with the plaintiff; true also that the share to be taken by each vendee was also specified in the mutation. Yet the purchase money was specified in a lump sum without specifying the amount paid by each of them. The mutation entries and those of the sale agreement do not alter that position, for in the sale mutation the lump sum price paid by all the vendees was mentioned and all that the sale agreement did was to mention the price per Killa. "Muhammad Riaz v. Fateh Muhammad" relied upon by the appellants' counsel was in our opinion decided on, and is authority for, its own facts. There the sale-deed was found to be capable of the interpretation that the share of price paid by each vendee was also specified. The doubt, if any, was "got shed off by elaborate statements made in that behalf which were subjected to piercing questioning". It was, therefore, found that "not only the share of each set of vendees was specified but also the amount paid towards the price by each of these sets was also specified". As to the second contention that sinker must have been pleaded by the plaintiff, we do not think that any such principle of law was enunciated in "Malik Sher v. Rab Nawaz". There the evidence given by one of the vendees was that they, i,e, all the defendants had been in possession of the land as tenants before the sale. The plaintiff however wanted it to be held on the basis of the entries of the Khasra Girdawari that only two of the vendees were recorded as tenants and, therefore, the doctrine of sinker applied. It was in that context that it was held that the plaintiff had not stated in the plaint that the respondents were not the tenants of the land nor were they cross-examined when one of them appeared as D.W.2 and said that they were tenants of the land prior to the sale".
In our opinion to hold that the plaintiff must plead the doctrine of sinker in his plaint is to require him to anticipate a defence. To so hold would in our opinion be unfair to the plaintiff. Indeed, if there is an averment of fact in the written statement and that requires reply by the plaintiff but the plaintiff does not in his replication deny it, the Court will be entitled to give effect to the legal consequences.
6. For these reasons we find no merit in the appeal and dismiss it leaving the parties to bear their own costs.
Cited by 1 case
- KHURSHID and others Versus UMAR BAKHSH through L.Rs. 2007 SCMR 1781