MUSAMMAT WASI FATIMA BIBI Vs. ABDUL GHAFFAR KHAN

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for pre-emption. On the 7th December 1905 Muhammad Amin and Musammat Shakira Bibi executed a deed of transfer in favour of one Lala Gur Dayal for a sum of Rs. 700. Under this document a two-annas semindari share of the lady and eight-pies semindari share of Muhammad Amin were transferred. On the same date a deed of agreement was executed by Lala Gur Dayal, the transferee, which recited that he had entered into a contract with Muhammad Amin, one of the two vendors, to the effect that in case a sum of Rs. 300 were paid by him within thirty years he would be entitled to get possession of his eight-pies share and if a further sum of Rs. 750 were paid he would get back possession of the two-annas share of Musammat Shakira Bibi also.

(2.) In 1919 the present defendant-vendee obtained a sale-deed of a certain share in the same village from a number of other co-sharers. The present plaintiff instituted a suit to pre-empt this sale-deed but while this suit was pending the defendant-vendee, namely, Abdul Ghaffar, obtained a document purporting to be a deed of gift from the said Muhammad Amin. On the strength of this deed he pleaded that he had become a co-sharer in the village and that, therefore, the suit for pre-emption1 was liable to be dismissed as against him. We have not been able to see the judgment which was pronounced in that case but we know this that that suit, on some ground or other, was actually decreed.

(3.) The plaintiff after that decree brought a second suit for pre-emption to recover the property covered by this ostensible deed of gift on the allegation that it really was a sale transaction.