1999 Y L R 524

[Lahore]

Before Muhammad Nasim Chaudhry, J

MUNAWAR KHAN and others---Petitioners

versus

NASEER AHMAD and others---Respondents

Civil Revision No.2373-D of 1985, decided on 6th April, 1999.

(a) Punjab Pre-emption Act (I of 1913)---

----Ss.4 & 15---Pre-emption suit---Superior right of pre-emption ---Two suits of

preemption were filed by two different pre-emptors wherein both pre-emptors raised plea
of collusion, with vendees, against each other---Suit of minor pre-emptor/son of vendor
was dismissed by Trial Court, but decreed in appeal---Suit by minor pre-emptor was
filed through his mother--Maintainability of such suit---Institution of suit by mother as
next friend of her minor son was not fatal so as to bolster up the stand of rival pre-emptor
---Relationship of father (vendor) towards his minor son (pre-emptor)
---Effect---Where the minor son (pre-emptor) got a decree in collusion with the father
(vendor), the same would carry adverse effect as the property would remain in the same
family---Collusion of minor pre-emptor with vendees had to be considered on a
different footing especially when minor would transfer property in favour of stranger
vendee as a fresh suit for pre-emption could be instituted---Rival pre-emptor failed to
establish collusion between the minor pre-emptor and the vendees---Minor pre-emptor
was rightly found to have first preference to a decree for possession by pre-emption
being son of the vendor, in circumstances.

Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403 and Tasleem Hussain v. Fateh Sher
1989 MLD 1809 distinguished.

Lal Din v. Allah Ditta and others PLD 1967 Lah. 703 ref.

(b) Words and phrases---

---- "Next friend " and "Guardian-ad-litem "-Meaning and scope.

Amar Chand minor through Mst Kauli v. Neem Chand AIR 1942 All. 150 rel.

(c) Punjab Pre-emption Act (I of 1913)---

----S.15---Pre-emption suit---Source of pre emption money, disclosure of

---Validity-- Where plaintiff had a legal right to pre-empt, it was unnecessary for Court
to consider from which source he was going to procure pre emption money.

Mahr Bakhsh and another v. Maula Dad and another PLD 1951 Lah, 113; Noor Khan v.
Sultan Khan and others 89 Punj. Rec. 1912 and 7 Punj. Rec. 1912 rel.

Syed Farooq Hassan Naqvi for Petitioners.

Naseem Sabir, Bar-at-Law for, Fazal Elahi Pre-emptor.

Nemo for Respondents

Date of hearing: 6th April, 1999.

JUDGMENT

The disputed property comprising an area of two Kanals of land fully described in the
plaint was owned by Nadir Khan who made sale of the same to the vendees. Fazal Elahi
respondent minor son of Nadir Khan instituted his suit to pre-empt the said sale.

2. A rival suit for possession by pre-emption was filed by Roora on the alleged
qualification of being a collateral of Nadir Khan vendor.

3. The sale price of Rs.12,000 as mentioned in the registered sale-deed was not accepted
by the pre-emptors. Fazal Ellahi pre-emptor took up the stand that the rival suit was
instituted by Roora pre-emptor at the instance of and for the benefit of the vendees.
Roora pre-emptor also raised the plea that the suit instituted by Fazal Elahi minor son of
Nadir Khan vendor was collusive with the vendees and for their benefit.

4. Both the suits were contested by the vendees against the pre-emptors and the
preemptors inter se.

5. According to the epitomised pleadings of parties of both the suits following issues
were framed for determination by the learned Trial Court:---

ISSUES:
(1) Which of the pre-emptors has got preferential right of pre-emption interest? OP.
Pre-emptors.

(2) Whether the suit of the rival preemptors has been instituted at the instance and for the
benefit of vendees, if so, what effect? OP. Fazal Elahi.

(3) Whether the ostensible sale price of Rs.12,000 was fixed in good faith or actually paid
to the vendor? OP. Vendees.

(4) Market value? OP. Parties

(5) Whether the suit of Fazal Elahi is collusive with the vendees and for their interest? OP
Rival pre-emptors.

(6) Relief.

6. The parties produced their evidence. Mst. Surriya Begum mother of Fazal Elahi
minor-plaintiff appeared as P.W.2 who was cross-examined on the point of the source of
amount to be paid as pre-emption money. The parties produced their remaining evidence
as well. Expressing that Fazal Elahi minor pre-emptor has failed to establish the finances
with him and also that with his mother Mst. Surriya Begum, learned Trial Court held that
he being a minor had instituted the suit for the benefit of the vendees who were bearing
expenses of the suit having been instituted for their interest. The suit of Fazal Elahi was
dismissed while the suit instituted by Roora pre-emptor was decreed.

7. Fazal Elahi preferred two appeals with respect to both the suits wherein the learned
Appellate Court held that the provision of finances was an irrelevant matter and that
Fazal Elahi being the son of Nadir Khan vendor had the superior-pre-emptive right
whose suit was to be decreed. Consequently the first decree in preference was passed in
favour of Fazal Elahi who was directed to deposit pre-emption money and in case of his
failure in the matter the second decree was passed in favour of Roora preemptor at
present represented through legal representatives due to his death. Feeling aggrieved two
revision petitions have been filed by the legal representatives of Roora pre-emptor which
have been resisted by Fazal Elahi rival pre-emptor. The vendees have shown their
disinterest in both the matters.

8. I have heard the learned counsel for the contesting parties and gone through the record
before me. Learned counsel for the petitioners/legal representatives of Roora pre-emptor
has argued that Fazal Elahi was minor at the time of institution of the suit on 22-7-1975
who instituted the same on the last date of limitation as the land was purchased by the
vendees through sale-deed registered on 23-7-1974 and that the said fact was enough to
make out that the suit was collusive and for the benefit of the vendees. In this regard he
relied on Naseer Ahmad v. Arshad Ahmad (PLD 1984 Supreme Court 403) as well as
Tasleem Hussain v. Fateh Sher (1989 MLD 1809 Lahore). He referred to the following
portion from Naseer Ahmad v. Arshad Ahmad (PLD 1984 Supreme Court 403):---

"As a matter of fact, there are cases where the father sells land and his son files a suit for
pre-emption, which cannot but lead one to assume that there was collusion between the
two. Such suits are very often mala fides because if the pre-emptor is genuinely so keen
to purchase the land or property in question, he would gladly pay the price which is being
offered to the vendor by an other person or come forward and tender the highest bid at an
auction rather than wait till the transaction is complete and thereafter, spend 20 years of
his life in litigation and incur huge expenditure which was in many cases even more than
the actual price of the land or the property at the time of the sale or auction. Apparently
the motive behind it is to create a hurdle in the way of the vendee for his own benefit,
because the vendee is compelled in many cases to dish out large sums of money as a price
for the withdrawal of the suit by the plaintiff."

9. Learned counsel for the petitioner argued that Mst. Surriya Begum mother of Fazal
Elahi minor had no source of income and for that reason it can be deduced that the minor
has instituted the suit for the benefit of the vendee through his mother. On the contrary
learned counsel for Fazal Elahi argued that in the aforesaid rulings relied upon by the
learned counsel for the petitioner/rival pre-emptors the findings were in favour of the
rival pre-emptor on the ground that the suit was filed by the minor in collusion with his
father for the benefit of his father (vendor) which was for the purpose of creating a hurdle
in the way of the vendee while in the instant matter the assertion raised by the rival
pre-emptor is that the suit is in collusion with the vendees. He added that Mst. Surriya
Begum is the mother of the minor who acted as his next friend and that the pre-emptor
has not to prove his source of income. In this regard he relied on some rulings which shall
be projected infra while disposing of the dispute in, hand.
10. In my view the rulings relied upon by the learned counsel for the petitioner, viz:
Naseer Ahmad v. Arshad Ahmad (PLD 1984 Supreme Court 403) and Tasleem Hussain v.
Fateh Sher (1989 MLD 1809 Lahore) are not applicable to the instant matter for the
reason that in those rulings the alleged collusion was between the minor pre-emptor and
the father (vendor) and it was held that the suit was instituted to put the hurdle in the way
of the vendee for his own (vendor's) benefit. In the instant matter the assertion of the rival
pre-emptor Roora, at present represented through his legal representatives due to his
death, is that the suit was instituted in collusion with the vendees. The aforesaid
exceptional circumstance has made me to hold that the rival pre-emptor Roora has failed
in his I enterprise to establish the collusion between A Fazal Elahi minor pre-emptor and
the vendees who are also minors at the time of the purchase of the suit property and the
institution of the suit for possession by pre-emption.

11. First of all I would rely on Amar Chand minor through Mst. Kauli v. Neem Chand
(AIR (29) 1942 Allahabad 150) wherein the observations with respect to the "next friend"
and "guardian-ad-litem" have been clarified which read as under:---

"The expression a next friend' originally denoted the person through whom an infant acts
without any necessary reference to litigation but in modern times it has come to assume a
technical meaning of the person by whom a minor or an infant, as the case may be, is
represented as a plaintiff in litigation. The real object of having a next friend is that there
may be somebody to whom the defendant or the opposite party may be able to look for
costs. The next friend himself does not actually become a party to the litigation. It is the
minor who is the party and the next friend is a person---so to speak in the back
ground---who can act on the minor's behalf and to whom the opposite party can look for
costs. Now there is one other peculiarity to notice in the position of a next friend. As
every one knows, a minor who is a defendant to a suit is represented by a
guardian-ad-litem. There is this difference between a guardian-ad-litem and a next
friend that, whereas a guardian-ad-litem is constituted by an order of the Court, a next
friend automatically constitutes himself, by taking steps in the suit."

11-A. The aforesaid aspect of the matter has made out that the institution of the suit by
Mst. Surriya Begum as the next friend of her minor son Fazal Elahi is not fatal in the
matter so as to bolster up the stand of the rival pre-emptor Roora.
12. It has been held in Mahr Bakhsh and another v. Maula Dad and another (PLD 1951
Lahore 113) that a pre-emoptor does not claim through or under the vendor or the vendee
who asserts a right to be substituted for the vendee and the right of pre-emption exists
antecedently to the sale which is a condition precedent not to the existence of the right
but to its enforcibility. It has also been held therein that if the plaintiff has a legal right to
pre-empt, it is unnecessary for the Court to consider from which source he is going to
procure the pre-emption money. It shall not be out of place to refer to Noor Khan v.
Sultan Khan and others (Case No.1323 of 1910) (89 Punjab Record 1912) that the
plaintiff has an independent right of pre-emption and the mere fact that he is a minor and
as such under the guardianship of his father, the vendor, is insufficient to establish
acquiescence on his part in the sale in question. It has been ruled while deciding Civil
Revision No.276 of 1910 (7 Punjab Record 1912) that the Courts are not concerned with
the questions where the pre-emptor is raising the money and what he is going to do with
the land. It has particularly been mentioned in this ruling that if in any such case the
pre-emptor is buying the property for an outsider and if after securing the property he
transfers it to the latter it may be open to an other pre-emptor to challenge the second
transfer and to claim pre-emption in respect thereof and this right is, therefore, a
sufficient safeguard against Benami transaction of the kind. This observation is equally
applicable with respect to the alleged collusiveness which does not stand established by
the production of the evidence that Mst. Surriya Begum has no property and source of
income and that the suit for possession by pre-emption was instituted by Fazal Elahi
minor in collusion with the vendees. I would express my view that relationship of a father
(vendor) towards his minor son (pre-emptor) is different from the relations of a minor
pre-emptor towards the stranger vendee(s) and on this ground the minor can back out
after obtaining a decree for possession by pre-emption in collusion with the vendee. If he
gets a decree in collusion with the father (vendor), which is not a fact in issue, that would
carry adverse impact and the matter would be simply different as the property would
remain in the same family. The collusion of a minor pre-emptor with the vendees, thus,
has to be considered on a different footing especially when the minor would transfer the
property in favour of the stranger vendee(s), as expressed and held above, the fresh suit
for pre-emption can be instituted. Thus, the defence raised by the rival pre-emptor Roora
since deceased at present represented by his legal representatives has no legal force
which does not stand established. It has also been held in Lal Din v. Allah Ditta and
others (PLD 1967 Lahore 703) that suit of plaintiff/pre-emptor can fail only if it is
established that he is Benami and that real owner of property after decree would be an
other person and that the suit cannot fail on the ground that the pre-emptor has been
financed by other person or that he has entered into some agreement to transfer property
subsequently in favour of Some other person. Since the minor has the legal right to
institute the suit for possession by pre-emption which is a right of substitution in the
circumstances of the matter, it can safely be held that Roora rival pre-emptor has failed to
establish that the suit has been instituted in collusion with the vendees and for their
interest. I, therefore, hold that the findings of the learned lower Appellate Court do not
suffer from any of the ingredients of section 115, Civil Procedure Code and it has rightly
been held that Fazal Elahi pre-emptor has the first preference to a decree for possession
by pre-emption being the son of Nadir Khan vendor.
13. For what has been said above, I see no merit in this revision petition and 'dismiss the
same with costs.

Revision dismissed

Q.M.H./M.A.K./M-1044/L