P L D 1990 Supreme Court 1043 (PLP)

ABDUL QADEER CHAUDHRY, J.‑‑‑This review petition has been moved by the petitioners seeking review of the judgment of this Court dated 17‑3‑1987.

2. The relevant facts for the disposal of the present petition are that the respondent No. 4 Shaikh Abdur Rauf purchased the disputed land situated in Mohal Karez Khushkaba Tehsil Quetta in four different transactions in 1972 and 1973 from sons of Jhanda Khan. On 20‑1‑1980 the respondent No. 4 exchanged the land in question for a shop on Wazir Muhammad Road, Quetta with Muhammad Nasim respondent No.

5. Subsequently, the respondent No. 4 sold the shop to respondent No. 6 Saleh Muhammad. The respondent No. 4 Shaikh Abdur Rauf was a stranger in this area. Haji Kangan Khan filed a suit for pre emption against respondents 4 to 6 on 18th of December, 1980 in the Court of Assistant Commissioner, Quetta, under Ordinance I of 1968 (hereinafter referred to as the Ordinance) in respect of these pieces of land. Haji Kangan Khan, the plaintiff, died during the pendency of the suit on 6‑3‑1981. The suit had been referred by the Assistant Commissioner with power of the Deputy Commissioner to the Tribunal for adjudication under the provisions of the aforesaid Ordinance. An amended plaint was filed by the legal representatives of Haji Kangan Khan on 29‑3‑1981. The Tribunal by its majority opinion recommended the dismissal of the suit on the ground that the right of pre-emption after the death of plaintiff did not survive and the heirs had no right of pre‑emption in accordance with the Muslim Law of Pre‑emption. The award of the Tribunal was accepted by the Assistant Commissioner on 17‑8‑1981. The appeal by the legal heirs of the deceased Kangan Khan was dismissed by the Additional Commissioner on 21‑10 1981. Their revision petition was also dismissed by the Member, Board of Revenue on 4‑4‑1982. A Constitution Petition was also filed in the High Court of Balochistan which was dismissed on 30‑6‑1982 for the same reasons. Leave to Appeal was granted by this Court and ultimately the appeal was allowed. The operative part of the judgment reads as follows:‑‑ "I have carefully surveyed the entire case‑law on the subject and would hold that the appellants had legal sanctions to continue with the case filed by their pedecessors, by asking to be impleaded as plaintiffs because Their application was within time. Therefore, the concerned Tribunal should have examined the case on merits instead of ousting the appellants from the panel of plaintiffs in the instant case. In would, therefore, allow this appeal and remand the case to the learned Tribunal to examine claim of the appellants regarding superiority of their pre emptive right as against the defendants/respondents. No order as to costs." The learned counsel for the petitioner submitted that in Balochistan pre emption is to be governed by the Muslim Law and as the issue was to be resolved in accordance with the Hanfi Fiqh whereunder the right of pre‑emption does not survive after the death of the pre‑emptor, the suit of the plaintiffs/appellants was rightly dismissed by the forum under Civil Procedure (Special Provisions) Ordinance, I of 1968. The learned counsel for the respondents submitted that the pre‑emption in Balochistan is governed by custom and not in accordance with the principles of Muslim Law. This contention has no force. There is no codified law in Balochistan governing the rights of pre‑emption. No custom or usage has been alleged by the plaintiff in the pleadings. It has also not been established through evidence that there is any such custom having the force of law with regard to the rights of pre‑emption and the disputes of pre‑emption are decided by the Courts in accordance with such custom. As regards the decision of Lahore and Peshawar High Courts in Allah Dad v. Hukam Dad P L D 1960 (W.P.) Lahore 900; and Muhammad Nawaz v. Azizur Rehman P L D 1984 Peshawar 244, the decisions in these cases were made while interpreting the Punjab Pre‑emption Act, 1913 and N.‑W.F.P. Pre emption Act, 1950, therefore, these judgments would not help the case of the respondents. 1n British Balochistan Civil Justice Regulation, 1896, it was contemplated that if any question regarding succession, inheritance, pre‑emption etc., arises, the Court has to decide the dispute in accordance with the Muslim I Law in cases where the parties are Muhammadans. Similar provisions were contained in Regulation No. II of 1913 and Regulation VI of 1939. The learned counsel for the appellants/respondents has referred to section 10 of the Ordinance I of 196$ which reads as hereunder:‑‑ "The findings of the Tribunal on the matter or issue referred to it under section 4 shall be given in accordance with law, or the custom, or the usage having the force of law and shall be submitted to the Deputy Commissioner in the form of a report containing reasons for such findings." With the assistance of the learned counsel we have gone through the plaint wherein it rinds specific mention that two Talabs have been made by the plaintiffs before the institution of the suit. Talab‑i‑Mowasbat and Talab‑i‑Ishhad are the terms of Muslim Law of Pre‑emption as without these Talabs the suit could not be instituted. Thus the plaintiff had himself based the suit on the principle of Muhammadan Law. It cannot, therefore, be contended that the suit could be decided otherwise than the principle of Muhammadan Law. The decision made in Ghulam Haider v. Raj Bharri P L D 1986 SC 169 is distinguishable as in this case also the provisions of Punjab Pre‑emption Act were considered. It is an established principle that according to Hanfi Law, right to sue extinguishes after the death of the pre‑emptor and the suit cannot be prosecuted p by the heirs of the deceased. The following passage from Hedaya is quoted below:‑‑ "If the Shafei dies his right of Shaffa becomes extinct. Shafei maintains that the right of Shaffa is hereditary.‑‑ The complier of the Hedaya remarks that this difference of opinion obtains only where the Shafee dies after the sale, but previous to the Kazee decreeing him the Shaffa; for he dies after the Kazee has decreed his Shaffa, without having paid the price, or obtained possession of the property sold, his right devolves to his heirs, who become liable for the price. The argument of our doctors upon the point in which they differ from Shafei is, that the, death of the Shafee extinguished his right in the property from which he derived his privilege of Shaffa; and the property did not devolve to his heirs until after the sale. Besides, it is an express condition of Shaffa, that a man be firmly possessed of the property from which he derives his right of Shaffa at the time when the subject of it is sold, a condition which does not hold on' the part of the heirs. It is, moreover, a condition that the property of the Shafee remains firm and the decree of the Kazee be passed; and as this does not hold on the part of the deceased Shafee, the Shaffa is, therefor, not established with respect to anyone of his descendants, because of the failure of its conditions." In "Muhammadan Law" (Vol. 1) by Syed Ameer Ali, the following passage deals with the right of pre‑emption:‑‑ "According to the Hanafi Law the right of pre‑emption is a personal right and does not survive to the pre‑emptor's heirs. Of course, if they are themselves entitled to claim the right, they stand on a different footing. Thus the right of pre‑emption is rendered void by operation of law when the pre‑emptor dies after making necessary demands, but before he has taken over the property which forms the subject‑matter of dispute, or before he has obtained a decree, therefor, from the Court...:" In `Outlines of Muhammadan Law' (4th Edition) by Asif A.A. Fyzee, it has been stated as follows:‑‑ "The right of pre‑emption may be lost by acquiescence, death or release. (1) .......................... (2) Death. The right to pre‑empt is extinguished if the pre‑emptor dies after the first two demands, but before filing a suit. The right is extinguished if death occurs during the pendency of a suit, and the action cannot be continued by his legal representatives. (3) .......................... In "Muhammadan Law by Tyabji, 3rd Edition, section 532 reads as under:‑‑ "(1) Under Hanafi law the right of pre‑emption is extinguished where the pre‑emptor dies before enforcing it by suit, even if he has made the two preliminary ceremonies. (2)

(3)

(4)

The reason given for the right abating, under Hanafi law, is that the death of the pre‑emptor extinguishes his ownership of his property which is necessary to give rise to the claim: it cannot continue in the dead man; as for his heirs, their right in the property devolves upon them after his death, i.e. after the sale; and thus they were not owners at the time of the sale." A similar view was expressed by Mulla in his book on 'Muhammadan Law'. Baillie has expressed as under:‑‑ "The right of pre‑emption is rendered void necessarily when the pre emptor has died after the two demands, and before taking the thing under the pre‑emption; for the right is then extinguished." Aziz Ahmad in his book on `Islamic Law in Theory and Practice' 1956 page 463 has observed as follows:‑‑ "Under the Hanafi Law on the death of a pre‑emptor the right to sue is extinguished and the suit cannot be continued by heirs." The learned counsel for the petitioners has referred to `Muslim Law' by Kashi Prasad Saksena 3rd Edition 676 reproduced hereunder:‑‑ "Presumptions. Generally in the absence of any proof to the contrary, it is presumed that the Muslims are governed by the law of pre‑emption, and that the non‑Muslims are not governed by it, and secondly, where the law of pre‑emption is adopted by custom or contract, it is the Sunni law of pre‑emption which is applied... Under the Hanafi law, on the death of the pre‑emptor the right to sue is extinguished, and the suit cannot be continued by his legal representatives." He has also referred to Fatawa‑i‑Alamgiri. Section 125 is to the following effect:‑ "If the pre‑emptor dies after the sale has taken place but before actually pre‑empting the house, then according to us (Hanafi Law), his heirs will not be entitled to pre‑empt it:" Similar views were expressed by Al‑Haj Mahomed Ullah Ibne Salar Jang in his Book on `Muslim Law of Pre‑emption', and `The Manual of Pre‑emption Laws' (Revised Edition) by Younis Lal Din 1985 Edition 324 which are as follows:‑‑ "

... According to the Hanafi Law, the right to sue is extinguished and the suit cannot be prosecuted by the heirs...:' As in the present case, the pre‑emptor had died during the pendency of the suit, therefore, according to Hanafi Law to which predominantly the Muslims of Balochistan adhered to, the suit of the plaintiff was rightly dismissed by the Tribunals and the High Court. The plaintiffs/appellants had no right of pre emption after the death of the pre‑emptor as this right could not be inherited. For the foregoing reasons, we accept this review petition and recall our order dated 4‑5‑1986 as a result of which the appeal of the appellants stands dismissed. No order as to costs. M.B.A./G‑305/S Review accepted.