Law: North-West Frontier Province Pre-emption Act, (XIV of 1950)

Section:

  N.-W.F.P. Pre-emption Act (XIV of 1950)---S. 4-Allega tion that transaction is different from one described in deed Circumstances indicating different nature-Must be of very strong character.   Section 4 of the N.-W. F. P. Pre-emption Act, 1950 permits a Court to examine a transaction which is one other than sale to deter mine whether it is in fact a sale or not. If on examination it is found that a transaction has been described as other than a sale, but the circumstances of the case indicate it to be a sale, the Court should declare it to be a sale. But in order to determine that- a transaction is different from the one described, the circumstances indicating its different nature must be of very strong character.   For a transaction to be a sale, it is necessary that a price in Malik cash must have been paid for the thing sold. There must be ownership in a thing on one side and cash price for it on, the Abdul other.   Where the parties have not transferred possession of the exchanged pieces, that would not prevent an exchange from being an exchange, and would not convert an exchange into a sale.   Pre-emption----Device-Pre-emption can be defeated by legitimate devices like exchange and gift.   Where the vendees were anxious to take certain land, and in order to avoid any pre-emption suit they resorted to the device of exchange:-----   Held, that there was nothing illegal in this device which the law permits. Pre-emptions can be defeated by legitimate devices like exchanges and gifts. All that is necessary is that the device must possess all the essentials of exchanges and gifts. If the law exempts exchange from pre-emption it is open to a person to resort to exchange in order to save his land from pre-emption. Law Courts would permit such device to be pursued, if the transaction is an exchange as defined in section 118 of the Transfer of Property Act.   Courts should hesitates in the absence of very strong evidence to the contrary, from rejecting documents which have been execut ed between the parties with free consent and under which they have parted with their right in their properties. Written documents executed…