MIR AHMAD and others vs ATTAULLAH alias ATTA MUHAMMA,D and others
This matter comes before the Supreme Court of Pakistan upon appeals referred to a larger Bench to examine the application of the "rule of sinker" in pre-emption suits, specifically whether a vendee possessing an equal or superior right of pre-emption who associates a stranger having an inferior right sinks along with his co-vendee. The core legal question concerns the effect of associating a stranger in a pre-emption transaction upon the vendee's superior or equal pre-emptive rights. The Court, following its earlier precedent in Muhammad Ismail and others v. Karamat Ali (PLD 1989 SC 474), holds that the doctrine of sinker applies in such cases, rendering the sale pre-emptible and decreeing the pre-emptor's suit, unless the impugned sale is divisible wherein the share and price paid by each vendee are specifically designated. The key principle laid down is that a vendee with superior or equal pre-emption rights who associates a stranger loses that protective standing and sinks to the level of the stranger, causing the transaction to be vulnerable to pre-emption unless specific divisibility of shares and prices is established.
- Does the rule of sinker apply when a vendee having an equal or superior right of pre-emption associates a stranger with an inferior right?
- Under what circumstances does the association of a stranger not trigger the rule of sinker in a pre-emption suit?
- Does a pre-emption suit succeed against co-vendees if the impugned sale is divisible in terms of shares and specified prices?
1. ' NASIM HASAN SHAH, J.---The above appeals were referred to a larger Bench (consisting of 5 HJJ) as some doubts arose as to the application of the "rule of sinker" more particularly whether a vendee who possesses a right of pre-emption equal or superior to the pre-emptor on associating a stranger i,e, person having an inferior right of pre-emption than the pre-emptor will not sink alongwith his co-vendee and the sale held pre-emptible on account of the inferior qualification of his co-vendee.
2. ' The learned counsel of all the parties addressed us at considerable length on the question but during the course of the hearing it transpired that another Bench of 5 learned Judges consisting of Mr. Muhammad Hateem, C.J., Mr. Justice Shafi-ur-Rehman, Mr. Justice Ghulam Mujaddid, Mr. Justice Usman Ali Shah and Mr. Justice Naimuddin) had in the meanwhile considered a somewhat similar question--in the case of Muhammad Ismail and others v. Karamat Ali (PLD 1989 SC 474)-- and held that the doctrine of sinker applied in such cases.
3. After having given our fullest consideration to the submission of the learned counsel for the parties we have also reached the same conclusion and, therefore, it seems unncessary to give detailed reasons in support thereof as they have already been set out at sufficient length in the aforesaid judgment. Our final conclusion, after having considered the whole matter at length is that in preemption suits where a vendee having an equal or superior right of pre-emption associates a stranger i,e, a person having an inferior right or pre-emption than the pre-emptor, the rule of sinker will apply and the pre-emptors suit decreed, unless the impugned sale is divisible i,e, it is a sale wherein not only the share of each vendee is specified but the amount paid towards the price by each vendee is also specified.
4. ' In the result, these appeals fail. A short order to the above effect was announced at the conclusion of the hearing of the appeals. The above are our reasons for the said order. These appeals are, accordingly, dismissed but with no order as to costs.
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- SAIFUR REHMAN And Another vs KHAMID GUL 1991 SCMR 916
- GHULAM MUHAMMAD Versus SHAMIM AHMAD KHAN 2003 PLD 245
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