MUHAMMAD ISA and anothers vs QAISER and others
This petition for leave to appeal arises from concurrent findings of three lower courts against the petitioner, a vendee, in a pre-emption suit. The petitioner challenged the pre-emption claim on two grounds: first, that he had become an owner in the estate through an intermediary purchase, allowing him to match the pre-emptor's right; and second, that the vendor was merely an ostensible owner (Benamidar), rendering the sale a reconveyance rather than an independent sale. The Supreme Court rejected both contentions. Regarding the first ground, the Court held it was raised for the first time before the Supreme Court and, substantively, an owner of the same estate holds a lower entitlement than the heirs of the vendor under the relevant pre-emption law. Regarding the second ground, the Court clarified that the right of pre-emption is a right of substitution; therefore, any defects, reservations, or pre-existing conditions attached to the purchase are transferred to the successful pre-emptor and do not invalidate the substitution itself. Leave to appeal was consequently refused.
- Does an owner of the same estate have a superior right of pre-emption compared to the heirs of the vendor?
- Does the right of pre-emption as a right of substitution transfer defects, reservations, and pre-existing conditions of the purchase to the pre-emptor?
- Can a claim of benami ownership by the vendor defeat a pre-emption suit?
- Section 15, Pre-emption Act
ORDER
' SHAFIUR RAHMAN, J. ---The petitioner, a vendee has failed in all the three Courts in defending the purchase of land against pre-emption claim. He seeks leave to appeal.
2. The two grounds urged are that the petitioner had on account of an intermediary purchase become owner in the estate and could for that reason match the right with the pre-emptor. The second is that the petitioner had led formidable evidence to establish that the vendor was only an ostensible owner, he himself being the Benamidar. The pre-empted sale amounted to reconveyance to him in recognition of that right and could not be considered to be an independent sale.
3. The first ground has been taken up before this Court for the first time, finding no place anywhere in the record of the three Courts. Even otherwise it is untenable in view of section 15 of the Pre- emption Act, whereby an owner of the same estate has a lower entitlement than the heirs of the vendor in which category the pre-emptors placed themselves.
4. The second ground is totally misconceived. The right of pre-emption is a right of substitution, whatever defects, reservations and conditions attach to the purchase pass on to the successful pre-emptor. Such defects reservations and pre-existing conditions do not affect in any manner the substitution.
' No ground is made out. Leave to appeal is refused.