MUHAMMAD AND ANOTHER vs MUHAMMAD YAR AND ANOTHER

ORDER

1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from judgment, dated 9-12-1978 of the Lahore High Court : whereby a Regular Second Appeal of pre-emptors in a suit for pre- emption, was dismissed.

2. ' The suit for preemption was initially decreed on 9-5-1978. The respondents' (vendees') appeal succeeded on 17-9-1978 on the ground that he had also a right to inherit the properly of the vendor.

3. The petitioners then filed a Regular Second Appeal which having been dismissed in limine, they have now sought leave to appeal.

4. ' The sale of land was by one Mst. 'Ahmo, sister of petitioner No. 1 and paternal aunt {{URDU TEXT}} of petitioner No '2. She had sold the land to Ahmad Yar respondent (vendee) her daughter's Son.

5. Petitioners' suit was initially decreed on the assumptions that in presence of Muhammad and Ahmad Yar nearer collaterals of Mst. Ahmo' Ahinad Yar would riot inherit the property on her death.

6. ' The learned District Judge upset the decision on the assumption that both the parties had a right to inherit the property of Mst. Ahmo on the finding that the mother of Muhammad Yar had predeceased M t. Ahmo. 'I his was done on the basis of the Law of Inheritance in favour of the grand-children as contained in the Muslim Family Laws Ordinance, 1961.

7. ' In the High Court it was admitted that the mother of Muhammad Yar had not yet died, meaning thereby, that Muhammad Yar vendee was not the son of predeceased daughter of Aist. Ahmo; therefore, his position wculd not-be changed till the death of his mother. But a learned Judge relying on some decided cases including Mst. Shahzad Bibi and another v. Gulzar Khan (1) ; Muhammad All Khan v. Mt. Zewar Nisa (21 and Mt. Pari v. Fazal Rabi (3), held that "by legal fiction in deciding the question of rights of pre-emptor under clause 'B' (thirdly) of section 15, Courts have only to seep in view the pre-emptor and the vendee and no other relation of the vendor. In other words we have to assume that the vendor had died leaving surviving the pre-emptors and the vendee only." Thus, it was assumed that regardless of the relationship with the vendor the pre- emptors and the vendee if they are ultimately to inherit the property of the vendor, would compete with each other and leave aside those who have chosen not to file a suit for pre-emption.

8. Same questions came for consideration before this Court in Jalal Din v. Saeed Ahmed and others (4). It was observed that in pre-emption cases the proposition that if nearer heir does not sue still his remedy being in existence acts as a bar to the claim of remote or remoter heirs, would not he a correct law. Nearer heirs may have their own reasons not to exercise right of pre-emption. The order of succession mentioned in the law in section 15 of the Pre-emption Act is to be examined only in competition with vendee or rival suitor actually filing suit and not in abstract with those who have not filed the suit. Pre-emption being a statutory right enforcement of which calls for filing of a suit, it could not be said that even if such suit, is not filed still his right has to be maintained or given effect to in his absence, without his assertion or desire, not by passing a decree in his favour but by precluding suit of others_ exercising that right and filing a suit for its enforcements.

9. ' This principle applies to the present case. The fact that Muhammad Yar gets a remoter position vis-a-vis Mst. Ahmo on account of his mother, who has not filed a suit for Pre-emption as against the present petitioner, will not make any difference-so long as Muhammad Yar is under the law entitled to inherit the property of Mst. Ahmo at some stage. The following quotation from the law declared in the case of Jalal Din was reiterated by this Court in a more recent case, namely, Mst.

10. Raz Khartum Bibi v. Nazir Ahmad and others! (5). It proceeds, "Moreover, the point raised loses sight of the words 'in order of succession' which, in the situation which is being examined, will mean that under Islamic Law if there is a contest between 'sharers' or in a given case some 'sharers' or some `residuaries', who, for example, succeed simultaneously and no one excludes the other and each succeeds up to the extent of his share, then, as the order of the succession is the same and none succeeds prior and in preference to the other, the suit will fail if the pre-emptor and the vendee are heirs of the above categories. However, if the vende is an utter stranger, then the whole body of heirs, failing them two or more thereof, and failing them any individual or a class or a group can a sue for the whole bargain. This position is made clear by section 13 o the Act itself which is headed as 'joint right of pre-emption how exercis and states that......

11. "Whenever according to the provisions of this Act a right pre-emption vests in any class or group of persons, the right may be exercised by all the members of such class or group jointly, and, if rftlt exercised by them all jointly, by any two or more of them jointly, v1,4

(1) PLD 1973 Lah. 878 (2) AIR 1942 Pesh. 22 (3) AIR 1945 Pesh. 45 (4) PLD 1979 SC 879 (5) 1985 SCM R 1725 if not exercised by any two or more of them jointly, by them severally, i.e., individually." (Underlining* is ours).

12. ' In this case it cannot be disputed that Muhammad Yar by virtue of the 1961 Legislation being grandson of Mst. Ahmo. Has the position of an heir. Therefore, he will be able to compete with Muhammad the brother and Ahmad Yar the nephew of Mst. Afimo. And hence, as a vendee will be able to save the bargain from the attack of pre-emption.

13. ' The judgment and approach of the learned Single Judge in the High Court accordingly being unexceptionable, we find no force in this petition and the same, is dismissed.

14. (Mere in italics)