AZIZUR REHMAN Versus MUHAMMAD NAWAZ

1. MUHAMMAD HALEEM, C.J.‑‑Leave to appeal was granted to consider whether the "decision of holding the right of pre‑emption to be inheritable is neither in accord with the Muslim law of pre‑emption nor the N.‑W.F.P. Pre‑emption Act, 1950 recognizes any such right, and that the right of a person to sue for pre‑emption is a simple personal right."

2. The facts which have given rise to this appeal are that one Muhammad sold his 40/493 share out of Khasra No.466 measuring 29 Kanals 13 Marlas, situate in village Mang, Tehsil Haripur, District Abbottabad, to the appellant s‑vendees for Rs.10,000 by a registered sale‑deed dated 25‑4‑1975 in respect of which a sale mutation was attested on 30‑6‑1976. The respondent's father who was a co‑sharer and a contiguous owner of the land died on 18‑2‑1976. Upon his demise, his son the respondent herein claiming to be a co‑sharer and a contiguous owner by inheritance pre‑empted the sale on 22‑4‑1976 through a suit for possession which was decreed by the trial Court on 28‑1‑1978. On appeal against the judgment and decree, the appellate Court set aside the decree and dismissed the suit by judgment dated 6‑5‑1978.

3. The respondent thereupon invoked the revisional jurisdiction of the High Court and succeeded as the decree of the trial Court was restored on payment of Rs.10,000. In holding so, the High Court relied on Faqir Ali Shah v. Ram Kishen and others (133 PR 1907 p.636) and Wajid Ali v. Shaban (ILR 1909, Vol. 31 All. 523). In Faqir Ali Shah's case, the Full Bench of the Punjab Chief Court held that "a right to sue for pre‑emption upon a cause of action which accrued to a person in his lifetime passes at his death to his successor who inherits the property through which the right had accrued", basing it on the rule that since the right of pre‑emption passes with the land, therefore, the person who inherits the land should also be able to exercise that right meaning thereby that it was heritable right. The same view was taken in Wajid Ali's case, where it was held that the custom as proved gives the right to pre‑empt as an incident to co‑ownership in case the pre‑emptor derived title by inheritance. The High Court followed its earlier judgment in Muhammad Yusuf Ali Khan v . Dal Kaur, (1897) , I .L. R. ,20 All.,

148. However, a contrary view was taken by the Lahore High Court in Faiz Muhammad v. Fajar Ali (A I R 1944 Lah. 172) and by the Allahabad High Court in Chhajju and others v. Jai Dayal and others (A I R 1947 All. 297). In both these decisions it was held that it was necessary that the pre‑emptor must show that he had a superior right to pre‑empt which he had at the date of the sale which continued to remain superior at all relevant times, otherwise his suit must fail. In this connection reference was made to section 4 of the Punjab pre‑emotion Act, according to which section the right to acquire a property by right of pre‑emotion arises on the date of sale, and, therefore, it should be in existeqce on that date. These two judgments were followed in Abdul Khalid v. Abdul Ghani (P L D 1969 Lah. 249), and it was held as under:

4. In my opinion, the present case is covered by a dictum in another Full Bench case of the former Lahore High Court in AIR 1944 Lah.172, wherein it was held inter. alia that a pre‑emptor cannot improve his position after the date of sale or the institution of the suit. Similarly, it was held in A I R 1947 All. 297 that the crucial dates on which the plaintiff in a pre‑emotion suit must establish his subsisting title are date of the sale, the date of the suit and the date of the decree and this has reference to the property on the strength of which the suit for pre‑emotion is brought. There is a clear distinction between the position of a plaintiff pre‑emptor and the defendant‑vendee in a suit for pre‑emotion. While the plaintiff pre‑emptor who does not possess a superior qualification at the time of the sale cannot avail of the subsequent improvement in his status to give him preference over the vendee, the latter, is placed in‑ a better position, that is to say if the vendee did not possess superior or equivalent qualification at the time of sale but acquires the same before the institution of the suit or at any time after the institution of the suit before the decree of the trial Court, he will be able to defeat the plaintiffs suit."

5. In Civil Revision No.115 of 1978, decided by a learned single Judge of the Peshawar High Court, Peshawar, titled as Muhammad Younis v. Khushal, where the same question was involved, it was held that the pre‑emptor must possess the right on the date of sale relying on the decisions: Abdul Khaliq v. Abdul Ghani (P L D 1969 Lah. 249), Faiz Muhammad v . Fajar Ali (A I R 1944 Lah.172) and Chhajju v . Jai Dayal, (A.I.R.1947 All. 297). Abdul Khaliq's case was approved by this Court in Akram v . Sakina Begum and another, (PLD 1984 S C 334).

6. Sections 11 and 12 of the N.‑W.F.P. Pre‑emotion Act declare the right of pre‑emotion to vest in certain persons at the time of sale. Therefore, a pre‑emptor who had no right on the date of sale cannot improve his right after the sale by inheritance as the cause of action had already come into existence and the subsequent qualification by‑ inheritance could not vest him with superior status after the accrual. of cause of action.

7. Section 6 of the N.‑W.F.P. Pre‑emotion Act specifically lays down that the right of pre‑emotion shall exist subject to the provisions and limitations contained in the Act. Therefore, it is not possible to examine the question in the light of Mahomedan Law beyond the text of the Act itself. There is, however, a reported case Muhammad Ismail v. Abdul Rashid (A I R 1956 Allahabad 1), in which the question was also examined in the context of Mahomedan Law (Hanafi School), and it was held that the right of pre‑emotion does not survive to the heirs if the pre‑emptor dies before obtaining decree in his favour. In this connection, it will be interesting to note the following observations:

8. "Although the right of pre‑emotion runs with the land and is not initially personal, it assumes a personal aspect for the purposes of enforceability in a Court of law. From the moment of the sale in favour of the stranger till the date of the decree in favour of the pre‑emptor, the right can be enforced only by the person who was the owner of the pre‑emotive property on the date of the sale of the property sought to be pre‑emoted. During this interval, the right is attached to the person or the owner of the pre‑emotive property and he alone can enforce it in a Court of law. The right continues to be personal to him so long as a decree is not passed in his favour. During this interval, the right is neither transferable nor heritable. But as soon as a decree is passed in his favour the right ceases to be personal and becomes a proprietary right fit to be transferred as well as to be inherited."

9. The learned counsel relied on Hassan Muhammad v. Muhammad Hussain (P L D 1977 Azad J & K 40), but I find nothing in support of the proposition that the right of pre‑emotion is heritable. The Court has held that under the Hanafi Law it is not heritable while under the Shafei Law the right of ,.pre‑emotion is heritable and that it is permissible to follow the Shafei Law on the point. As I have already said that the right is subject to the text of the Act, the matter cannot be adjudged on this basis.

10. For the reasons given above, the pre‑emotion suit must fail as the respondent lacked the necessary qualification on the date of sale.

11. The appeal is allowed with costs and the order of the High Court is set aside with the result that the order of the appellate Court stands dismissing the suit.

12. M. B.A./A‑217/S Appeal allowed.