1983 PLP 1 (CLC)

ABDUL MAJEED MALLICK, J.-This appeal by leave, arises out of a pre emption suit. Main point raised therein is that non-impleading of husband of the deceased plaintiff has Tendered partial abatement of the suit and on this view of the matter the suit is hit by partial pre-emption.

2. The leading facts of the case are that Muhammad Ismail, alias Khakhroo, alienated the suit land on 30th October, 1973, in favour of Mehram Shah, the present appellant. Mst. Salam Bibi, sister of the vendor, pre-empted the sale on the. ground of her relationship with the vendor. Suit was instituted on 10th October, 1974. But she died on 23rd October. She was survived by two sons, the present respondents, and her husband. Muhammad Rashid and Muhammad Sharif legal hairs of the deceased plaintiff joined the suit as plaintiffs, on 23rd November, 1974, Muhammad Hussain, husband of the deceased plaintiff, failed to join the proceedings.

3. Defendant-vendee admitted the superior right of pre-emption of the plaintiff but pleaded waiver and partial pre-emption. It was averred that Mst. Salam Bibi by giving her consent in sale of the land in favour of the vendee waived her right. Likewise, failure to implead Muhammad Hussain, husband, of the deceased plaintiff, has resulted in abatement of the suit at least proportionate to his legal share and as such suit was bit by partial pre-emption.

4. The trial Court upheld the objections and dismissed the suit. On appeal to the District Judge. the learned District Judge disagreed with the trial Court on the point of waiver but maintained the finding on partial pre-emption. The plaintiffs, feeling aggrieved, lodged second appeal to the High Court. The learned Single Judge accepted the appeal, reversed the findings of the Courts below and decreed the plaintiffs suit. Judgment of the High Court, dated 20th March, 1979, is now under criticism in this appeal.

5. Mr. Sayab Khalid, the learned counsel for the appellant, referred us to Allah Dad and another v. Hukam Dad and others (P L D 1960 Lah. 900) and argued that the right of pre-emption being a heritable right, devolved upon the husband of the deceased plaintiff. Thus, according to him Muhammad Hussain, husband of the deceased plaintiff, was a necessary party. Failure to implead him as plaintiff in the suit has rendered partial abatement and on that account the suit was hit by partial pre-emption. Sh. Abdul Aziz, the learned counsel for the plaintiff-respondent, supported the impugned judgment and contended that husband of the deceased plaintiff, not being an heir of the vendor, could not inherit the right in his capacity as husband of the deceased plaintiff. Therefore, according to the learned counsel, failure to implead Muhammad Hussain has not resulted in abatement of the suit. He relied on Muhammad Iqbal and 2 others v. Ghulam Ali Shah (P L D 1975 Lah. 1205) in support of his argument.

6. Before we take up the case in hand and determine the objection raised before us it would be conductive to examine the authorities cited by the learned counsel for the parties. The leading case on the proposition relied upon by Sardar Sayab Khalid is Allah Dad and another v. Hakam Dad and others wherein making analytical examination of the case law, per majority view, it was held that right of pre-emption was a heritable right. Mr. Justice Kaikaus, with whom Mr. Justice M. R. Kayani concurred, while concluding that the right was heritable, imposed a condition that on the death of plaintiff the right shall be inherited by an heir provided, that heir too has a preferential right as against the vendee either on account of his ownership of land which may have devolved upon him or on account of his being nearer heir of the vendor than the vendee, The observation is reproduced as:- A right of pre-emption devolves on the heirs subject to the condition that the heir too has a prefrential right as against the vendee either on account of his ownership of land which may have devolved upon him or on account of his being a nearer heir of the vendor than the :-

7. In Muhammad Iqbal and 2 others v. Ghulam Ali Shah Mr. Justice' Aftab Hussain followed the dictum of full bench in Allah Dad and another v Hukam Dad and others and, under identical circumstances to the instant case, held that husband of deceased plaintiff, not being an heir of the vendor, had no prefrential right. Relevant part of the judgment is reproduced below:- "Keeping these principles in view, it can safely be laid down that a legal representative of a person holding a right to acquire property in preference to others (section 4 of the Pre-emption Act) is only that person from the category of the heirs of the deceased who can keep the right to acquire property in existence up to the date of the decree. If the right to acquire property in preference to others or, as Plowden, J., calls it in Dhani Nath v. Budhu, jus and rem alienam of acguirendam, is not a personal right likely to be extinguished on the death of the pre-emptor, the estate of the deceased for the purpose of pre-emption can be only the right to acquire property in preference to others. As rightly observed by Kayani, C. J., in his judgment this right has been recognised by sections 15 and 16 of the Punjab Pre-emption Act to be a vested right. The devolution of the estate to acquire property in preference to others can, therefore, be only on persons who can keep that right alive and in existence till the date of decree. Those heirs who cannot advance this object of section 4 of the Punjab Pre-emption Act, cannot, although heirs, be legal representatives of the deceased . I will, therefore, adopt, most respectfully, the principle that the right" of pre-emption though heritable can be inherited by only those persons who have a prefrential right as against the vendee either on account of ownership of land which may devolve upon them or on account of their being a nearer heir of the vendor than the vendee."

8. The learned Single Judge of the High Court followed the view enunciated in Muhammad 1qbal and 2 others v. Ghulam Ali Shah and arrived at a conclusion that Muhammad Hussain, husband of the deceased plaintiff, not being an heir of the vendor, inherited no right to join as plaintiff. The finding on the point is reproduced as under:- " . . . . in the instant case, the husband has relatively nothing to inherit so as to enable him to exercise his right of pre-emption as against the vendee-defendant. Therefore, the husband having no right, whatsoever, in the fashion depicted above, was not a necessary party to be impleaded as one of the substitutes of the deceased alongwith the appellants so as to entitle him to a decree. That being so, question of abatement of the instant suit could have never arisen so as to attract the rule of abatement itself or to constitute a case of partial pre-emption thereof."

9. The right of prior purchase is exercised on the ground of right in the property or on account of relationship with the vendor. In case, the right is preferred on account of right in the property, on the death of plaintiff-pre-emptor the right shall be heritable by the heirs of deceased plaintiff upon whom such estate of deceased shall devolve. On the other hand when pre-emptory right is exercised on the ground of relationship with the vendor, then on the death of plaintiff-pre-emptor the right, shall b heritable by heirs, who are prospective heirs of the vendor and as nearer heir of vendor may prefer their right. This view has been propounded in Allah Dad and another v. Hukam Dad and others. The distinction under the pre-emption Law and Personal Law is that in pre-emption case right is heritable on account of relationship with deceased plaintiff and vendor both, whereas under Personal Law heritance straight away devolves by virtue of relationship with deceased.

10. The upshot of the discussion is that Muhammad Hussain, husband of the deceased plaintiff, could inherit the right, provided be was an heir of the vendor and not solely in his capacity as husband of Alst. Salam Bibi. The authority relied upon by the learned counsel for the appellant provides a complete answer to his objection.

11. Partial pre-emption means to pre-empt partly and nut as a whole; to pick and choose and leave part of the property or not to prefer .claim to whole of the bargain. Partial pre-emption is not allowed as the exercise of the right is not repurchase of the property. It is a substitution of vendee. Pre-emptor enters into the shoes of vendee. Therefore, pre-emptor has to accept the bargain as a whole. The object is that if partial pre-emption is allowed the public policy and spirit behind the law would be defeated. The law is introduced to protect homogeneity and harmony of village community by excluding introduction and interference of strangers.

12. In the instant case, plaintiff-respondent have claimed the entire suit land. They have not left out any part of the property. That being so we find no force in the objection.

13. The proposition may be answered in another manner. There may be more than one persons vested with a preferential right. Now let us seethe scheme of law. The law provides that one of the persons vested with right of pre-emption may come forward and prefer his claim. He would not be refused decree on the objection that whole line of persons vested) with the right failed to join him. On the other hand when more than one persons bring separate or single suit of pre-emption; in case some among rival pre-emptors possess superior right while others have inferior rights, Court shall pass decree in a fashion that priority is given to persons enjoying superior status. On their failure to fulfil the condition of decree, in alternative, decree is allowed to those who come next in status. Likewise, in case more than one pre-emptors, prefer their claim, decree is passed in proportion to their shares.

14. In this view of the scheme of law suppose husband inherited the right but failed to join the suit, what would be the effect of his failure to be impleaded as plaintiff in the suit'? In our view, in that case decree has to be passed in favour of the heir who asserts his claim. Those who do not join as plaintiff shall get nothing. Moreover, failure of some of the heirs to join the suit would not disentitle the contesting plaintiff from getting decree in his favour.

15. The term, `legal representative' is defined in section 2(11) of Civil Procedure Code as:- "(11) `legal representative' means a person who in law represents the estate of a deceased persons, and includes any person who intermeddle with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued."

16. As stated above in a pre-emption case legal representative of deceased plaintiff shall mean a person or heir who too has a prefrential right as against the vendee either on account of his ownership of property which may have devolved upon or on account of his being a nearer heir of the vendor than the vendee. On this test of the proposition Muhammad Hussain not being an heir of Ismail, vendor, is not a legal representative of the deceased. Failure to implead him, therefore, would not cause proportionate or otherwise abatement of the suit. In view of the aforesaid observations we find no reason to disagree with the conclusion of the learned Single Judge of the High Court. The appeal being devoid of force is hereby dismissed with costs. S. Q. Appeal dismissed.