ALLAH DAD vs MUHAMMAD KHAN
This petition for leave to appeal arose from a pre-emption suit where the petitioner, the sister's son of the vendor (a distant kindred), challenged the superior pre-emption right decreed in favor of respondent No. 1, the vendor's brother's son (a residuary). The core legal question was whether the order of succession under Muslim Law determines the priority of pre-emption rights under the Punjab Pre-emption Act. The Supreme Court of Pakistan dismissed the petition and refused leave to appeal, holding that under Section 15(b) thirdly of the Punjab Pre-emption Act, the right of pre-emption is determined by the order of succession. Because a residuary excludes a distant kindred from inheritance under Muslim Law, the respondent possessed a superior right of pre-emption over the petitioner. The Court reaffirmed the principle that the analogy of inheritance is directly applicable to pre-emption claims under the relevant statutory provision when the vendor is a Muslim.
- Does a residuary under Muslim Law possess a superior right of pre-emption over a distant kindred under the Punjab Pre-emption Act?
- Is the order of succession under Muslim Law applicable to determine the priority of pre-emptors under Section 15(b) of the Punjab Pre-emption Act?
- Section 15(b), Punjab Pre-emption Act
ORDER
NASIM HASAN SHAH, J.--This matter arises out of pre-emption suit. The petitioner, who is the sister's son of the vendor, had purchased the suit land. The sale was pre-empted by respondent No.1, who is the son of the vendor's brother. The pre-emption suit has succeeded on the ground that respondent No.1 is residuary of the vendor while the petitioner is a distant kindred. Since respondent No.1 would inherit the vendor's property to the exclusion of the petitioner, he enjoyed a superior right of pre-emption.
2. Ch. Khalilur Rehman, learned counsel for the petitioner has submitted that the above view is not correct. According to him, even a distant kindred can defeat the right of nearer kindred in so far as the matter of pre-emption was concerned because the analogy of inheritance is not attracted here.
3. There is no force in this submission.
4. Section 15(b) thirdly of the Punjab Pre-emption Act together with the proviso preceding the same prescribes "the order" of pre-emptors in case of sale by a Muslim which is as follows:- "Provided that in the case where the sale is by a Muslim, the firstly and secondly shall be inapplicalbe, and the thirdly shall read as follows:- "Thirdly in the person in order of succession, who but for such sale would be entitled, on the death of the vendor to inherit the land or property sold."
5. The respondent being a residuary shall in order of succession, under Muslim Law exclude and displace the petitioner, a distant kindred. In fact everybody else, except a sharer, with whom the residuary stands in the name order of succession, is excluded (See this Court' judgment in Jalal Din v. Saeed Ahmad and others PLD 1979 SC 879. There being no merit, in the plea raised on behalf of the petitioner, leave to appeal is refused and this petition is dismissed.
Cited by 1 case
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