| Citation(s) |
|---|
| 1981 SLG 3036 = 1981 SLD 3036 = 1981 CLC 124 |
Lahore High Court
Regular Second Appeal No. 66 of 1966, heard on 2nd April, 1980.
Presented By: Karrar Hussain Zaidi, J
Allah Dad v. Bagh Ali P L D 1968 Lah. 428; Nadir Shah v. Lal Shah P L D 1954 Lah, 447; Raja Mohammad Afzal Khan v. Ch. Manzoor Elahi and 6 others P L D 1975 Lah. 1276; Mst. Fatima v. Khuda Bakhsh and others P L D 1959 Lah. 826 and Mst. Bibi Jan v. Habib Khan and another P L D 1975 S C 295 ref. Syed Faqir Hussain for Appellants. Shamim Abbas Bakhari for
Respondent.
Regular Second Appeal No. 66 of 1966, heard on 2nd April, 1980.
Presented By: Karrar Hussain Zaidi, J
Allah Dad v. Bagh Ali P L D 1968 Lah. 428; Nadir Shah v. Lal Shah P L D 1954 Lah, 447; Raja Mohammad Afzal Khan v. Ch. Manzoor Elahi and 6 others P L D 1975 Lah. 1276; Mst. Fatima v. Khuda Bakhsh and others P L D 1959 Lah. 826 and Mst. Bibi Jan v. Habib Khan and another P L D 1975 S C 295 ref. Syed Faqir Hussain for Appellants. Shamim Abbas Bakhari for
Respondent.
MUHAMMAD IRSHAD AND 4 OTHERS-Appellants
VERSUS
SARDAR KHAN-Respondent
Law: Transfer of Property Act (IV of 1882)
Section: 54, 118
Law: Punjab Pre-emption Act (I of 1913)
Section: 4
Law: Civil Procedure Code (V of 1908)
Section: 100
(a) Transfer of Property Act (IV of 1882) Ss. 54 & 118--`Sale" - "Exchange" - Definitions-Distinction between an alienation by way of sale and a transfer by way of exchange-Held, lies in nature of consideration for such transfer -Allegation in pre-emption suit that a transfer which purports to be an exchange is, in fact, a sale-Duty of Court to determine real intention of parties as opposed to their apparent intention-Punjab Pre-emption Act (I of 1913), S. 4.-[Words and phrases]. It is manifest from the definitions that an exchange as defined in sec tion 118 of Transfer of Property Act, 1882 is similar to a sale in so far as it is a mutual transfer of ownership of one thing for the ownership of another, but it differs from a sale in that neither of the things transferred is the price of the other. Thus the distinction between an alienation by way of sale and a transfer by way of exchange lies in the nature of the consideration for such transfer. If the consideration is the price of the property transferred it is a sale, if it is property, (not being price) then it is an exchange. Under section 4 of the Punjab Pre-emption Act, 1913, the right of pre-emption arises in respect of such land which may be a subject-matter of sale or of foreclosure of right to redeem such property and nothing in this section prevents a Court from holding that a transfer purporting to be then a sale is in fact a sale. Thus whenever in a suit for pre-emption it is alleged that a transfer which purports in the face of it to be an exchange is in fact a sale, it is the duty of a Court to determine what the real intention of the parties was as opposed to their apparent intention. (b) Transfer of Property Act (IV of 1882) S. 118-"Exchange"-Strict equation between values of properties exchanged Held not a sine qua non for a valid transfer by way of exchange. (c) Punjab Pre-emption Act (I of 1913) S. 4 read with Transfer of Property Act (IV of…