MUHAMMAD IQBAL Versus GHULAM ALI

This is a petition against the order of Mr. Hassan Nawaz, District Judge, Jhelum, dated the 1st March 1974, allowing the appeal of the respondent against the order dated the 7th June 1972, passed by Mr. Khizar Hayat, Civil Judge 1st Class, Chakwal, dismissing an application filed by the respondent for restoration of a pre‑emption suit which was dismissed in default, after impleading him as a legal representative of the deceased plaintiff.

2. One Muhammad Naeem Shah transferred by sale to the petitioners agricultural land‑, measuring 37 kanals 8 marlas situated in village Murid, Tehsil Chakwal, District Jhelum, for an ostensible sum of Rs. 5,610. The mutation of sale was attested on 4‑10‑1969. His mother Mst. Nadira, instituted a suit on 17‑9‑1970 for possession of this land by pre‑emption. She died on the 22nd May 1971, and her suit was dismissed in default on the 26th June 1971. However, within the period of limitation as provided by Article 176 of the Limitation Act, i.e. within ninety days, from the death of the deceased plaintiff, an application was submitted by her daughter for being impleaded as a legal representative. Before this application could be disposed off Mst. Sahib Noor also died on the 17th January 1972 and thereafter her application was dismissed in default on the 1st February 1972. Within ninety days of her death, on the 4th March 1972, an application for restoration of the suit and for his being impleaded as a legal representative of Mst. Sahib Noor, was submitted by her husband (the respondent). This application was dismissed by the learned trial Court on the 7th June 1972, on the ground that the respondent being entitled only to a share in the Zar‑e‑Panjam, the suit for pre‑emption by him as plaintiff would be for partial pre‑emption and would not be maintainable. In appeal the learned District Judge disagreed with this reasoning. He held on the strength of a Full Bench decision reported in Allah Dad v. Hukam Dad (P L D 1960 Lah. 900) that the right to pre‑empt was heritable and as such Mst. Sahib Noor was entitled to be impleaded as a legal representative of Mst. Nadira and the respondent had a right to be impleaded as a legal representative of Mst. Sahib Noor. On behalf of the petitioners it was argued before the learned District Judge that Mst. Sahib Noor was a sister of the vendor and could independently file a suit for possession of this land by pre‑emption. Since she did not file such a suit in exercise of her independent right she must be deemed to have waived her right to file a suit for pre‑emption and could not consequently be impleaded as a legal representative to get the same relief which she had waived by her conduct. Regarding the respondent it was argued that he could not be impleaded as a legal representative as he claimed a right of inheritance from Mst. Sahib Noor. Since the latter could not be substituted as an heir of the original plaintiff, the disability applied to her legal representative also. This argument did not find favour with the learned District Judge.

3. The arguments of both the parties find support from the above authority. M. fit. Kayani, C. J. was of the view that if the heirs of the pre emptor who has died had an equal right with him, that is to say, if they could file a suit simultaneously then they should be deemed to have waived their right, because if the original pre‑emptor had waived his right there would have been no suit to which his heirs could have succeeded. And they cannot be placed in a better position than the pre‑emptor. Since they could not exercise it in the presence of the pre‑emptor, they should be allowed to continue the suit.

The observations in the judgment of Kaikaus, J., support the contrary view and are as follows :‑

"I would not with the greatest respect accept that just because the heir who had an equal right of pre‑emption with the deceased pre‑emptor did not file a suit, he should be deprived of the right to inherit the pre‑emptive right. In the first place, the decision of the question of waiver would depend upon the particular circumstances of each case, and it would be difficult to lay down general rules. For instance, the heir may be a minor or insane, or he has gone abroad, or he may have filed a suit after limitation had expired though he honestly believed that limitation had not expired. In all these cases there is no waiver of the right of pre‑emption. But, truly speaking no question of waiver is involved so far as the heritability of right of pre‑emption is concerned. Waiver has been defined as the conscious renunciation of a right. The person who did not file a suit waived his own right of pre‑emption, while in the suit in which he is to be impleaded as heir, it is the right of the deceased pre‑emptor that is to be determined. The heir is simply to take the right of the deceased of which right there has been no waiver. The fact that the heir had waived his right should not debar him from stepping into the right of the deceased.

One point to consider in this connection is that while the heir may not be interested' in exercising a right of pre‑emption in respect of a sale in the lifetime of the deceased pre‑emptor, he may be interested in securing the property sold after the death of the pre‑emptor, because the property sold is needed not for the protection of his own property but that of the deceased pre‑emptor which he has inherited. Or he, being the sole heir of the deceased pre‑emptor, may not feel the necessity of a suit during the lifetime of the deceased pre‑emptor.

The same is my reply to the objection that the vendor himself may be the heir of one of the heirs. He would have inherited the property, had the right of pre‑emption matured into ownership of property. Could the right of inheritance be refused in that case on the ground that he had himself parted with the land ? At least we cannot say that there is anything unjust in allowing him to succeed. At the same time I may point out that the vendor may be an heir to the extent of 1/100 of the property. Should then all the heirs to the extent of 9/100 be deprived of the property just because the vendor is one of the heirs ? I should also point out that the right of inheritance cannot be waived. A person may agree that he will not be an heir but still by the law of inheritance the property of the deceased will devolve upon him."

It was however clarified in this judgment that the question of waiver was not before the Full Bench and would be decided in an appropriate case. The observations of both the members of the Full Bench w9re therefore obiter.

The learned District Judge leaned in favour of the reasoning of Kaikaus, J., and gave a finding in favour of the respondent.

4. The learned counsel for each party placed reliance upon the observations which supported his client's case.

5. In the present case Mst. Sahib Noor being a sister of the vendor had an equal right of pre‑emption with Mst. Nadirs and could have filed a suit simultaneously with her. . The observations of Kayani, C. J. about waiver would, therefore, apply to the case if those observations are held to lay down the correct law.

6. In Allah Dad v. Hukam Dad it was held by the majority constituting the Full Bench that the right of pre‑emption whether accruing on account of relationship or on account of ownership of the property is heritable. Nothing further need be said on this particular point, as both the learned counsel have proceeded on the assumption that this is the correct law. The only emphasis of the learned counsel for the petitioner is on waiver. ‑ It is conceded and rightly so that the question of waiver was not before the Full Bench and the different observations of their Lordships on this question are in the nature of obiter. The learned counsel for the petitioner, however, contended that the observations of Kayani, C. J. should have been ‑followed by the learned District Judge.

7. It is not necessary to repeat the reasoning in support of the two conflicting views. The reasoning which led Kaikaus, J., to hold against waiver is quite detailed.

8. Kayani, C. J., while applying the principle of waiver has overlooked the principle of Order XXII, C. P. C. order XXII, rule l, provides that the death of plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Right to sue means a right to bring the suit asserting the right to the same relief which the deceased plaintiff asserted at the time of his `' death‑(Sarat v. Nani (I L R 36 Cal. 799) and Gopal v. Ram Chandra (2)). The cause of action in the original and revived suits must be the same and no fresh cause of action can be imported into the revived suits‑(Sham Chand Girt v. Bhayaram Panday (I L R 22 Cal. 92)). The legal representative can only prosecute the cause of action as originally framed. Similarly, a defendant cannot raise any defence which be could not have raised against the deceased plaintiff himself (Subhasaya v. Mamlcka (A I R 1930 Mad. 543) and Md. Nainda v. Ummanaikani (A I R 1930 Mad. 543)). Where a party to a suit dies a legal representative is appointed merely in order that the suit might proceed, and a decision be arrived at. It is the original parties' rights and ‑disabilities that have to be considered and not those of the legal t representatives‑(Gulli v. Sawan and others (A I R 1924 Lah. 45 1 L R 4 Lah. 72)). A legal representative of a defendant thus can only make a defence appropriate to his legal character as legal representative of the deceased defendant and act in his personal capacity. In Lal Hussain v. Amir Muhammad Khan and another (P L D 1972 Lah. 256), I bad an occasion to consider this point on an interpretation of Order XXII, rule 4, C. P. C. I held that this provision is not to give a legal representative a right independent of the right of the deceased defendant or higher than that of the deceased defendant. On the other hand, ft is a provision of limitation confining the legal representative to raise defence which could be raised by the deceased defendant. See also Sadhu Singh and others v. Firm Kahan Singh & Boman Singh (A I R 1944 Lah. 473), Ram Ugrah Qjha and another v. Ganesh Singh (A I R 1940 All. 99) and Dareepa Alagouda v. Shivalingappa (A I R 1947 Bom. 307).

The continuance of the suit depends not on the qualifications of a person claiming to be the representative of the deceased, but on the nature of the suit. (Abdullah Shah and others v. Mst. Zainab Bibl and others (A I R 1931 Lah. 293)). This is also clear from the definition of the "legal representative" in section 2(11), C C. P. C. The definition envisages that a legal representative is a person who in law represents the estate of a deceased person. Although a vendor himself has no right of pre‑emption and, as will be seen just now, he cannot claim to be impleaded as a legal representative of the deceased pre‑emptor but if a decree is passed in favour of the plaintiff‑pre‑emptor and he dies subsequently the vendor, as a legal representative of the successful pre emptor is not estopped from taking the benefit of the decree. (Bindra Ban v. Durga Singh (A I R 1930 All. 220)). I am, therefore, in respectful agreement with the observation of Kaikaus, J., that in the suit in which the legal representative is to be impleaded as an heir it is the right of the deceased that is to be determined.

I am also in agreement with the observations in the judgment of Kaikaus, J., that no general rule about the applicability of the principle of waiver can be laid down! and that the principle of waiver cannot debar a person from stepping into the right of all deceased plaintiff but with utmost respect for his Lordship I find it difficult to agree with the following observations :‑

"The same is my reply to the objection that the vendor himself may be the heir of one of the heirs. He would have inherited the property, had the right of pre‑emption matured into ownership of property. Could the right of inheritance be refused in that case on the ground that he had himself parted with the land ? At least we cannot say that there is anything unjust in allowing him to succeed. At the same time T may point out that the vendor may be an heir to the extent of 1/100 of the property. Should then all the heirs to the extent of 9/100 be deprived of the property just because the vendor is one of the heirs?"

This reasoning creates an impression that according to his Lordship the vendor, if he is an heir of the deceased pre‑emptor or a person who does not have any right of pre‑emption himself, can also be a legal representative of the deceased within the, meaning of section 2(11), C. P. C. This impression would be directly contradictory to the answer given by his Lordship to the question whether the right of pre‑emption is heritable. The answer of his Lordship to the above question while he sat as a member of the Division Bench and which as will appear from the discussion which follows, he appeared to have held even as a member of the Full Bench is

"I would hold that a right of pre‑emption devolves on the heirs subject to the condition that the heir too has a preferential right as against the vendee either on account of his ownership of land which may have devolved upon him or the account of his being a nearer heir of the vendor than the vendee."

In view of this answer, it will not be correct to say that the vendor as an heir of the deceased pre‑emptor or an heir who is a stranger to the right of pre‑emption in the sale which is subject‑matter of the suit, can be a legal representative of the deceased pre‑emptor.

I, therefore, agree with the District Judge to the extent that Mst. Sahib Noor was entitled to be impleaded as a legal representative of her mother Mst. Nadirs deceased plaintiff' and to continue the suit.

This does not, however, solve the problem. The respondent Ghulam Ali Shah has applied for being impleaded only on the ground of being the husband of Mst. Sahib Noor and not on the ground of being a pre‑emptor in his own right. The question therefore, is whether the suit can be revived at his instance or he can be impleaded as a legal representative of Mst. Sahib Noor.

In the case of Allah Dad v. Hukam Dad the matter of heritability to the right of pre‑emption was first considered by C. M. Sharif, J., who because of the difficulty and importance of the question of law involved, referred the case to a larger Bench. The case was then heard by a Division Bench consisting of Kaikaus and Qadeeruddin, JJ. The answer of Kaikaus, J., has already been reproduced above. Qadeeruddin, J., was however, of the view that the right of pre‑emption in the Punjab is neither heritable nor does it survive the death of a pre‑emptor. In paragraph No. 19 of his judgment, he made the following comments upon the qualification imposed by Kaikaus, J., in his answer that in order to be impleaded as a legal representative, "the heir too has a preferential right as against the vendee". Paragraph No. 19 runs as follows

"Nobody has completely disregarded the above doctrine, but deviations have been made with heterogeneous results. Kaikaus, J., has reasoned in paragraph 13 of his judgment that the right of pre‑emption does not survive and devolve on successors‑in‑interest in testamentary succession. Moreover, be has attached the condition that devolution should not be such as to permit the introduction of strangers into the original groups of heirs or proprietors. These restrictions are not reflected in his final answer. In the final answer, the condition necessary for exercising the devolved right has been held by him to be that `the heir too has a preferential right as against the vendee'. If the heir has to depend on his own preferential right, what right has devolved on him ? With utmost respect, these restrictions or conditions are inconsistent with the generally accepted concepts of devolution as well as heritability. They tend to lead to a state of freedom from some of the settled doctrines and basic conceptions. They leave intact no guiding principle except that the object of the law of pre emption is to exclude `strangers' from the society of the pre‑emptor. This object is neither a certain guide, nor can it assume importance as an overriding principle. If in the Muhammadan system of law the right of pre‑emption is closely connected with the law of inheritance as was pointed out by Mahmud, J. in Gobind Dayal v. Inayatullah I L R 7 All. 775, and its object is to prevent alienation of family property resulting from minute divisions ; and if, according to the customary law, it is a compromise between complete freedom and complete prohibition to transfer property, with the object of preserving the nexus of joint ownership and kinship as pointed out by Shah Din, J. in Sanwul Das v. Gur Parshad 90 P R 1909 the meaning of the word `stranger' is by no means certain. More distant relations may be lesser strangers than the sons of the pre‑emptor as was virtually found in Partab Singh and others v. Daulat and others I L R 36 All.

63. Moreover, utter strangers blessed with wealth, once they acquire a foothold in a village and become entitled to pre‑empt, can disrupt the integrity of the village community with the help of the law of pre emption itself."

In view of the difference of opinion, instead of referring the case to a third Judge the matter was referred to a Full Bench comprising of the Judges of the Division Bench and Kayani, C. J. Kayani, C. J. answered the question without any qualification that "if the owner of the pre‑empted property dies, the persons who succeed to the property should inherit the right of pre emption if it has not been waived or become time‑barred". In order to elucidate this point he first referred to the following difficulties envisaged by Shabbir Ahmad, J., in Nawab v. Irshad Begum (P L D 1953 Lah. 317) :‑

"(1) When a person whose right of pre‑emption was based on relationship with the vendor dies, his heirs will generally be those who had themselves the right to sue, but who did not sue. It will not be just and equitable to allow them to pre‑empt, because on the date of the pre‑emptor's death their own suit might have become time barred.

(2) In cases where the heirs themselves had no right to pre‑empt, it would be anomalous to allow them to pre‑empt, as it would amount to a disregard of the general rule that before a plaintiff can succeed, his right must be superior to the vendee, not only at the date of the decree, but also at the date of the suit.

(3) In a small number of cases, the vendor himself will be the only heir of the pre‑emptor, and if he succeeds to the right of suit, he will get back property with which he had parted by his own act."

He then observed that these difficulties were surmountable and dealt with them seriatum in paragraphs Nos. 18, 19 and 20 which are to the following effect :‑

"18. Now as regards the first case envisaged by Shabir Ahmad, J., if the heirs of the pre‑emptor who has died had an equal right with him, that is to say, if they could file a suit simultaneously, then they should be deemed to have waived their right because if the original pre‑emptor had waived his right, there would have been no suit to which his heir could have succeeded. And they cannot be placed in a better position than the pre‑emptor. But if their right was inferior to that of the pre‑emptor, then since they could not exercise it in the presence of the pre‑emptor, they should be allowed to continue the suit.

19. In the second case, where the heirs bad no right of their own, the objection is that to give them a right of succession would be to give them aright which they did not possess on the date of suit. That however, is an incident of all succession: the heir always gets something which he did not possess before the death of his father. And in any case, the position will not be different from that of an heir to a person whose claim is based on ownership of property. After all, the heir is only succeeding to the right of pre‑emption, and not exercising it in the first instance. All that the law requires is that there should be a right to acquire in preference. That right existed in the original pre‑emptor at the date of sale. The heir merely succeeds, and naturally cannot draw himself back into the past.

20. In the third case, the vendor himself is the only heir of the plaintiff. He must be deemed to have waived his right."

His view, therefore, appeared that the vendor as an heir or an heir who had a right of pre‑emption of his own but had not filed proceedings to exercise that right, is excluded from being impleaded as a legal representative of the plaintiff on the principle of waiver. But the other heirs who were strangers to the right of pre‑emption had a right to continue the suit.

9. Kaikaus, J., in the judgment delivered by him while sitting in the Full Bench, found himself in agreement with the answer given by the Chief Justice to the question before the Full Bench "except with respect to the applicability of the principle of waiver", which means that he agreed with the answer that the right of pre‑emption is heritable without any qualification attached to heritability.

Again while dealing with the three difficulties envisaged by Shabbir Ahmad, J., in Nawab v. Irshad Begum particularly the last two difficulties which have been referred to in paragraph C of his judgment, he made the following answer in paragraphs 10 and 11 of the judgment :‑

"10. The second argument put forward in Nawab v. Irshad Begum disregards the fact that the heir takes not his own right but the right of the deceased pre‑emptor. If the deceased pre‑emptor had actually acquired the property, would not the same heir who is now continuing the suit have inherited it ? If the pre‑emptor died before the decree or before payment of the money, there does not appear to be any harm that the heir should succeed to the property to which he would have succeeded had the vendor acted in accordance with law and transferred the property to the pre‑emptor. There is one observation which I feel very much inclined to make in this connection. If possible, all suits should be decided on the day on which they are filed. This is not practically possible, but we should as far as possible decide them in the same manner as if they had been decided on the day on which they were filed. No party should be prejudiced by the fact that justice cannot be administered so as to decide disputes on the day on which they are referred to Court. It is true that we do take into considera tion, in pre‑emption cases, any difference in status of parties between the date of the suit and the date of the decree. That is a view which, as I have already stated, we have taken in number of cases though the opposite view could very well have been taken. But we should confine the difference in the result of a suit, which occurs on account of delay in its decision, to what we have already laid down and should not extend it any further.

11. To the third argument the reply is similar to the one which I have given to the second argument. If we keep in mind that what the heir is taking is not his own right but the right of the deceased pre‑emptor, the difficulties mentioned by Shabir Ahmad, J. will disappear. The simplest answer to all the arguments is that had the pre‑emptor in fact secured a transfer of the land either directly from the vendor or from Court, the heir would have inherited the land which he will get by being impleaded as a legal representative."

These answers do not appear to be in line with the condition that in order that the right of pre‑emption may devolve on the heir, he too must have a preferential right as against the vendee, inter alia, on account of his being a nearer heir of the vendor than the vendee.

11. But on the other hand, he dealt with the condition imposed by him in the Division Bench judgment and held as follows :‑

"Before proceeding further, it would be proper to state the fundamental principle on which, according to me, the decision of the question whether a right is heritable must always rest. All that is owned by a person should descend to his heir. That is the basis of the law of inheritance. Any work on jurisprudence will tell us that strictly speaking ownership has relation not to a thing but to a right. Persons are owners not of things but of rights. We do speak of persons as owners of things, but that is only a convenient way of referring to a number of rights which a person owns with respect to a particular thing. if all ownership is to descend to the heir, it means that every right which a person owns will vest, on his death, in his heir. There is only one qualification of this rule. If the nature or incidents of the right be such that either it cannot descend at all or it cannot descend in all circumstances, then it will either not descend or will descend only in limited circumstances. This limitation on the right of the heir to inherit the rights owned by his predecessor is essential because the nature or incidents of the right cannot be changed by the fact that the owner of the right has died. If the nature of the right be such that it is not capable of passing to the heir or it is capable of so passing only under particular circumstances, then the devolution of the right will be controlled by these considerations. The proposition therefore, which I would evolve, is that every right is heritable except to the extent to which such inheritance may be inconsistent with the nature or incidents of the right. It is on the general rule contained in this proposition that I have based my conclusion as to the right of pre‑emption being heritable and restriction which I have attached to its inheritance. In the ultimate analysis, heritability of the right depends upon the nature and incidents of the right"

He attempted to support this finding by reference to the incidents of right of pre‑emption that that right must be shown to vest in the plaintiff not only on the date of sale but also on the dates of institution of the suit and of the decree. He refused to depart from this principle.

12. Qadeeruddin, J., stuck to his views given by him in the Division Bench judgment.

13. It will thus be evident that though the majority of the Full Bench answered the question in favour of heritability of the right of pre‑emption yet there appears to be some difference of opinion between the Judges forming that majority on the scope of heritability. The opinion of Kayani, C. J., appears to be that all heirs whether having the right of pre‑emption of their own or being stranger to that right are legal representatives of the deceased but the principle of waiver ousts the vendor and heirs having right of pre‑emption of their own from the right of continuing the suit. In fact, therefore, only the stranger heirs have been held to be competent to revive the suit on the death of the pre‑emptor.

14. In spite of the agreement of Kaikaus, J., the answer given by the Chief Justice to the question before the Full Bench, it appears that he still held fast to the answer given by him in the judgment delivered as a Judge comprising the Division Bench. Scope of heritability, therefore, remains unresolved.

15. This matter does not appear to be relevant in the two cases which were heard by the Full Bench. In the case of Allah Dad v. Hukam Dad which was referred to the Full Bench, the suit for pre‑emption was filed by Nek Muhammad, inter alia, on the ground that he was a collateral of the vendor and entitled to inherit the property occupied by him. After the death of Nek Muhammad his sons were brought on record as his legal representatives who obviously were also collaterals of the vendor and had the same qualification as their father. There was yet another case before the Full Bench. It was a Letters Patent Appeal. In that case, the suit had been brought by Mst. Jindan mother of the vendor and upon her death two applications were brought by her legal representatives for being allowed to be substituted. One was her son Khuda Bakhsh (apparently brother of the vendor) and the other was her step‑daughter. The latter was excluded as not being an heir. The question in that case also, therefore, was whether the son of Mst. Jindan who also had apparently a right of pre‑emption himself was entitled to continue the suit as an heir of the pre‑emptor.

16. In view of the fact that this question neither arose in that case nor was answered by the Full Bench I will give my views on it. I have already agreed with the views of Kaikaus, J., that the principle of waiver cannot be helpful in ousting the heirs who have a right of pre‑emption of their own. By applying this principle Kayani, C. J., virtually confined the devolution of the right of pre‑emption only to persons who w‑.re absolute strangers. Kaikaus, J., on the other hand, in spite of his agreement with the. answer of the Chief Justice appears to exclude the strangers as well as the veedor from the category of legal representatives and to confine the right of devolution only to those heirs of the deceased pre‑emptor who themselves enjoy a right of pre‑emption.

17. Kaikaus, J., bas invoked to his aid the principle that the right of pre‑emption should vest in the pre‑emptor on three dates, namely, the date of sale, the date of institution of the suit and the date of decree. In a case where the right of pre‑emption is claimed on the basis of ownership of property there will be not much difficulty in extending the principle of devolution to all the heirs except the vendor since the property which is basis of the right of pre‑emption would devolve on all those heirs. This difficulty arises only in a case where the superior right of pre‑emption is based on personal relationship and the possibility of the pre‑emptor being an heir of the vendor. There might be cases in which after the death of the pre‑emptor no heir may be able to claim to be a possible heir of the vendor. In such circumstances, ,the heirs cannot keep the right of pre‑emption alive or existing till the date of decree. One of the conditions necessary for a person to succeed in a suit for pre‑emption will, therefore, fail in such a case.

18. The emphasis of the majority of the Full Bench is on heritability but Order XXII, does not give the heir an unqualified right of substitution for the deceased. Under Order XXII, rule 3, C. P. C. legal representatives of the deceased plaintiff are to be made a party to proceed with the suit if the right to sue survives. The expression "legal representative" means (1) a person who in law represent the estate of a deceased person, (2) and includes any person who intremeddles with the estate of the deceased, (3) and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing and sued.

19. Legal representative, therefore, is a person who in law represents the estate of a deceased person. He may not be a natural heir (Khudadad v.li Bai Jerbai (A I R 1938 Bom. 6)). He may be simply a legatee (Subba Naidu v. Kannia Naidu (A I R 1931 Lah. 79(2)) and Daulat Ram v. Mst. Meero and others (AIR 1915 P C 124)).

20. The definition of "legal representative" includes an intermeddler with the estate of the deceased and also includes a person on whom the estate devolves on the death of the party suing in a representative character.) In a suit under custom to challenge an alienation of ancestral property by a male owner after the death of one reversioner only the other reversioner can continue the suit. (Rameshwas and others v. Mst. Ganpati Devi (L R 33 Mad. 342). Muthusami Mudallar v. Masilamani (A I R 1936 Lah. 652), Venkatanarayana v. Subbammal (A I R 1941 Lah. 142), Lachhman and others v. Bansi Lal and others (A I R 1950 Mad. 482), Varamma v. Copaladasayya (A I R 1938 Bom. 6)). In such cases the personal heir of the plaintiff reversioner is not a legal representative since the right to sue survives to the next presumptive heir. In a suit by a Hindu widow for the benefit of the estate, the estate will devolve on the death of the plaintiff on the next reversioner who will therefore be a legal representative of the plaintiff. (Janaki Ammal v. Narayanaswami Aiyer (AIR 1916 P C 117), Rango v. Narayan (A I R 1944 Bom. 243), Abdul Rahman v. Balaipado Sett (A I R 1941 Cal. 347), Tribhuwan Sundar Kuar v. Sri Narayan Singh (1 L R 20 All. 341), Tulsi Ram Sahu v. Gur Dayal Singh (I L R 38 All. 111 (sic)), Rikhai Rat and another v. Sheo Pujan Singh (I L R 33 All. 15), Premmoyl Choudhrani v. Preo Nath Dhur (I L R 23 Cal. 636), Musala Reddi and another v. Ramayya and others (I L R 23 Mad. 125), Gand! Ramaswami v. Puramsetti Pedamunayya and 7 others (I L R 39 Mad. 382), Mst. Lachmi v. Diwan Amin Chand and others (97 P R 1893), Raja Rajeswara Dora! v. Sundara Pandiyasawami Tevar (A I R 1918 P C 156) and Baij Nath v. Sheoraj Singh and others (A I R 1919 Oudh 258)). Similarly, next heirs of the father on the death of a daughter pending a suit brought by her for recovery of vendor's property have right to continue the suit as legal representatives. Gandi Ramaswami v. Puramsetti Pedamunayya and 7 others and Jadubanbi Kunwar and others v. Mahpal Singh and others (I L R 38 All. 111).

21. Keeping these principles in view, it can safely be laid down that a legal representative of a person holding a right to acquire property in preference to others (section 4 of the Pre‑emption Act) is only that person from the category of the heirs of the deceased who can keep the right to acquire property in existence up to the date of the decree. If the right to acquire property in preference to others or, as Plowden, J., calls it in Dhani Nath v. Budhu (136 P R 1894), jus ad rem alienam acquirendam, is not a personal right likely to be extinguished on the death of the pre‑emptor, the estate of the deceased for the purpose of pre‑emption can be only the right to acquire property in preference to others. As rightly observed by Kayani, C. J., in his judgment this right has been recognised by s.ctions 15 and 16 of the Punjab Pre‑emption Act to be a vested right. The devolution of the estate to acquire property in preference to others can therefore be only on persons who can keep that right alive and in existence till the date of decree. Those heirs who cannot advance this object of section 4 of the Punjab Pre‑emption Act, cannot, although heirs, be legal representatives of the deceased.

22. It may be argued that the right to acquire property under section 4 of the Punjab Pre‑emption Act is not an estate but this point was considered in detail by Kaikaus, J., in Allah Dad v. Hukam Dad. In this connection he referred to jurisprudential distinction between proprietary rights and personal rights and relied upon Salmond's Jurisprudence, page 488. He then referred to paragraph No. 752 of the Halsbury's Laws of Englands, Vol. 19, Land Charges (Second Edition), according to which a contract for pre‑emption is an estate contract and constitutes a charge on land. It was, therefore, held that not being a personal right it may be classed as a proprietary right. This is sufficient answer to the argument noticed above and it is 0par that the majority of the Full Bench proceeded on the assumption that this was an estate of the deceased. The question whether the right to sue was survived was answered on this basis. I will, therefore adopt, most respectfully, the principle that the right of pre‑emption though heritable can be inherited by only those persons who have a preterential right as against the vendee either on account of ownership of land which may devAve upon then or on account of there being a nearer heir of the vendor than the vendee.

19. On this principle the respondent cannot be deemed to be a legal representative of Mst. Nadira or Mst. Sahib Nur. There being no legal heir of Mst. Sahib Nur, having a preferential right on account of being a possible heir of the vendor the right to sue did not survive. I, therefore, agree with the order of the learned trial Court that the application of the respondent for reviving the suit, was liable to dismissal though my grounds are different.

20. I, therefore, allow this revision petition, set aside the order of the learned appellate Court and restore the order of dismissal of the respondent's application passed by the learned trial Court.

In view of the difficult nature of the question involved, I leave the parties to bear their own costs.

K. B. A. Petition accepted.