MAHMOOD AHMAD and 16 otherss vs AZIZ and 2 others
This matter arises from a civil appeal concerning a pre-emption suit over a sale of land measuring 42 Kanals, 18 Marlas in Tehsil Chunian, District Kasur. The core legal question involves the divisibility of a sale transaction where the shares of the vendees are specified in the deed, but the consideration is paid in a lump sum without proportionate specification, and the effect of one co-vendee conceding the claim or failing to appeal (the sinker rule). The Supreme Court held that a sale transaction is indivisible unless both the shares of the vendees and the proportionate contribution to the sale price by each vendee are specified. Since the sale price was paid in a lump sum and one co-vendee's acceptance of the decree became final, the remaining co-vendees must sink with him due to the indivisibility of the transaction. The appeal was accordingly dismissed, affirming the judgments of the lower appellate court and the High Court.
- Whether a sale transaction is divisible when the shares of the vendees are specified in the deed but the consideration is paid in a lump sum?
- What are the essential ingredients to determine the divisibility of a sale transaction in pre-emption cases?
- Do co-vendees sink together when a pre-emption decree becomes final against one of them in an indivisible transaction?
SARDAR MUHAMMD RAZA KHAN, J.---A sale of 42 Kanals, 18 Marlas in Khankey More, Tehsil Chunian, District Kasur by Mst. Rehmat Bibi etc. In favour of Muhmood Ahmad, Bashir Ahmad, Mahanda, Rehmat and Sher Muhammad, was successfully pre-empted by two brother, namely, Aziz and Sana Ullah sons of Bugga in consequence of judgment dated 19-5-1982 of the learned trial Court.
Rehmat, one of the vendees being real brother of pre-emptors, had conceded judgment in their favour.
2. All the vendees except Rehmat went in appeal, dismissed by learned Additional District Judge, Kasur on 19-5-1987, holding that the joint purchase in favour of the vendees being indivisible and one of the vendees having not appealed against the decree and the judgment against him having become final, the remaining co-vendees would sink with him due to indivisibility of transaction.
Same was the fate of revision before the High Court, dismissed by a learned Single Judge on 29-10- 1996 and hence this appeal for leave which has already been granted, mainly, to consider the question of divisibility or otherwise of the transaction and the sinker, if at all, of the co-vendees.
3. The law in this' behalf appears to have remained under consideration since 1896 when the case of Ram Nath v. Badri Narain was heard by a Full Bench of Allahabad High Court (ILR 19 Allahabad 148). Like the case in hand, in that transaction too the share of each vendee had been specified but the consideration was paid in lump sum without specifying the separate share of consideration paid by each vendee. It was B held that the sale in question was not divisible and hence the co- vendees had to float or sink together.
4. A Division Bench of Punjab in Mughi v. Narain 1914 Punjab Record 18 once against went on to hold "That where the purchase money for a sale is paid in a lump sum without specification of the amounts paid by the various vendees, the transaction must be regarded as indivisible, though the shares to be taken by the various vendees may have been specified in the deed". Similar view was taken by this Court in Abdullah v. Abdul Karim PLD 1968 SC 140 wherein the test for divisibility was determined to be (i) specification of share of vendees and (ii) proportionate contribution to sale price by each vendee. In the absence of the said two ingredients a sale would be considered to be indivisible. Mangta Khan v. Hamida Begum PLD 1981 SC 51 was another case that came up before a Full Bench of this Court where the previous law laid down was fully endorsed: The law with regard to divisibility or otherwise of a sale mentioned above has rightly been followed by the learned Appellate Court and the learned High Court. As the transaction in dispute was proved to be indivisible and as the pre-emptor's decree had become final by latter's not going in appeal, such decree would be binding against the co-vendees as well because of the indivisibility of the transaction. The appeal, having no merit, is hereby dismissed.