P L D 1953 Lahore 317 (PLP)

SHABIR AHMAD, J.‑--Ghulam Ali and his brother Ghulam Haider sold the land in suit to Mst. Irshad Begum for Rs, 6,000 on the 31st of August, 1942. To pre‑empt that sale, two suits were instituted, one by Muhammad Sadiq, who based his c]aim on being an owner in the patti in which the land in suit is situate and the other by Inayat Ullah, one of the two sons of Ghulam Ali, one of the vendors, and both the suits were consolidated and heard together. During the pendency of the suits in the trial Court, Inayat Ullah plaintiff died leaving him surviving his father, a brother Nawab and two, minor nephews, Ghulam Mustafa and Riasat Ali, the last three of whom were impleaded as legal representatives of Inayat Ullah without objection from Mst. Irshad Begum. The trial Court decreed both the suits, providing in the decree that Nawab, etc., who had been impleaded as the legal representative of Inayat Ullah, were in the first instance, entitled to get possession of the land, but, if they failed to deposit the amount mentioned in the decree within the time fixed by it, Muhammad Sadiq could get possession of the land by complying with the terms of the decree. Mst. Irshad Begum appealed against the decrees in the two suits, but the learned District Judge upheld the decision of the trial Court except for a slight modification in the decree in favour of Nawab, etc. Against the decision of the District Judge, a second appeal was instituted in this Court, which was accepted by a learned Judge in Chambers, who held that the right of pre‑emotion possessed by Inayat Ullah died with him and even if it survived him, Nawab etc., could not be brought on the record as legal representatives of Inayat Ullah in the presence of his father Ghulam Ali. The learned Judge in Chambers declared the case a fit one for appeal under clause 10 of the Letters Patent and Nawab, Ghulam Mustafa and Riasat Ali have presented a Letters Patent Appeal. The learned counsel for the appellant pointed out that on the 5th of December, 1949, an application was put in by Muhammad Sadiq, the plaintiff, in one of the suits in which he mentioned the three appellants and Ghulam Ali one of the vendors, as the legal representatives of Inayat Ullah and, in the other suit, Nawab, Ghulam Mustafa and Riasat Ali had put in an application for being impleaded as the legal repre sentatives of Inayat Ullah and that no objection was taken to these applications by Mst. Irshad Begum. The learned counsel contended that, by not objecting to Nawab, Ghulam Mustafa and Riasat Ali being impleaded as the legal representatives of Inayat Ullah, Mst. Irshad Begum had precluded herself from later on contending that they were not the legal representa tives of Inayat Ullah and, therefore, the learned Judge in Chambers should not have allowed her to attack the decree passed by the learned District Judge on the ground that the right to sue did not survive Inayat Ullah. There is no force in this contention. The legal representatives of a dead party to a suit can proceed with its prosecution or defence, as the case may be, only if Order 22, rule 1 of the Code of Civil Procedure applies and the right to sue survives the dead party. 13y her admission that the appellants were legal representatives Inayat Ullah, Ms t. Irshad Begum may have admitted that they were entitled to succeed to the heritable property left by him but she cannot be held to have admitted that the right to sue survived Inayat. Ullah. But even if it be assumed that not objecting to the appellants being impleaded as plaintiff in place of Inayat Ullah amounted to admitting that the right to such survived Inayat Ullah, it was an admission on a question of law which could be withdrawn at any time. The next contention of the learned counsel for the appel lants was that the right of pre‑emption did not die with Inayat Ullah and the appellants could therefore, proceed with the suit. In support of his contention, the learned counsel cited a decision of the Peshawar Judicial Commissioner's Court in Sarwar Khan v. Yaqub Khan and others (A I R 1942 Pesh. 23), wherein Almond, J. C., held that, on the death of a plaintiff, who had sued for pre‑emption by reason of his relationship with the vendor, justice and equity demanded that his legal representatives be permitted to continue the suit. The learned counsel for the respondent on the other hand argued that a right to bring a suit for pre‑emption under the Punjab Pre‑emption Act was a personal right as under the Muhammadan Law and, therefore, did not survive Inayat Ullah. He cited some authorities to show that, under the Muhammadan Law, right to pre‑emption was a personal right, which died with the plaintiff but admitted that he could cite no authority in support of his contention that the right of pre‑emption under the Punjab Pre‑emption Act did not survive the original plaintiff. No doubt the decision in A I R 1942 Pesh. 23 (supra) supports the contention of the learned counsel for the appellants, but, as the learned Judicial Commissioner gives no reasons for the decision beyond saying that it corres ponded with justice and equity that the heirs of the deceased plaintiff should be allowed to continue a suit for pre‑emption, it is necessary to examine the question in the light of the provisions contained in the Punjab Pre‑emption Act (Act I of 1913). Section 15 of the Act deals with rights of pre‑emption with regard to transfer of agricultural land and village immov able property; while section 16 deals with that right with respect to urban immovable property. Section 16 does not confer a right of pre‑emption by reason of relationship with the transferor but with respect to transfer of agricultural land and village immovable property, clause (a) and the first 3 sub- clauses of clause (b) of section 15 relationship with the transferor confers a right of pre‑emption. When a plaintiff whose right of pre‑emption was based oil relationship with the transferor dies, persons who are his heirs under the law of succession applicable will generally be those who had themselves the right to sue for pre‑emption as section 15 of the Punjab Pre‑emption, Act confers the right oil the remotest heirs of the transferor, but in some cases they may be persons who had not possessed that right. In cases in which persons sought to be impleaded as legal representatives of the dead plaintiff had the right to sue for pre‑emption but had not brought a suit, it can hardly be just and equitable to allow them to pre‑empt In some cases, a suit for pre‑emption, if instituted by the heirs at the time of the death of the plaintiff, would be barred by limitation and if the heirs were to be allowed to get the property in suit as legal representatives of the dead plaintiff, the law of limitation would be circumvented. The right to pre‑erupt, it would be anomalous to allow them to pre‑empt the transfer as it will amount to a disregard of the general rule that before a plaintiff in a suit for pre‑emption can succeed, he must show that his right of pre‑emption was superior to the vendee not only at the time of the decree but also at the time of the suit. Cases, though they may not be very common, will arise in which the vendor will be the only legal representatives of the dead plaintiff, and if the right to sue survives, the vendor will have to be allowed to continue the suit, if lie wants to do so, and to get through a decree of a Court property which he had by his own act parted with. In such cases, it is hardly open to Courts to lay down that if the vendor be the legal representative of a dead plaintiff in a pre‑emption suit he was not to be allowed to proceed with the suit because if the right to sue survives the legal representative can proceed with the suit unless the law forbids him to do so. The cases considered above can arise only where the right of pre‑emption of the dead plaintiff was based on relationship with the vendor, i.e., to cases covered by clause (a) and tile first 3 sub -clauses of clause (ff of section

15. With regard to cases in which the right of pre‑emption is based on ownership of some property it has been held by the Punjab Chief Court in 133 P R 1907 (F. B,) that the right passes with the property to the heirs of the owner of that property but does not pass to persons who get the property by transfer. As, however, the question whether a right of pre -emption based on ownership of property survives the plaintiff or not does not arise in this case the decision of the Punjab Chief Court need not be critically examined. No provision of the Punjab Pre‑emption Act says or even implies that a right to sue for pre‑emption if it is based on relationship with the vendor survives the original plaintiff and because, as I have indicated above, the results of holding in favour of the survival of such a right will in many cases be anomalous. I would hold that in cases in which pre‑emption is sought on the strength of relationship with the vendor the right is a personal one which dies with the plaintiff. The appeal fails and I would dismiss it leaving the parties to bear their own costs. MUHAMMAD MUNIR, C. J.--‑I agree. A. H Appeal dismissed.