P L D 1973 Azad J & K 71 (PLP)

"There arises another question in this case. It is a question on which although we have formed an opinion we express that opinion with some hesitation. There can be no doubt that a plaintiff coming into Court in a pre‑emption suit, if he is a person having a right to claim the whole property, sold, must in his suit make that claim. That is he cannot come into Court and claim a portion only when he is entitled to the whole. That is we think settled law. That question has been considered in the cases of Kashi Nath v. Mukhta Prasad 6 All. 370, Arjun Singh v. Sarfaraz Singh 10 All. 182 as well as in many other cases decided in this Court. According to the judgment of Mr. Justice Mahmood In one of those cases, the plaintiff must claim the whole of the property included in the sale deed, if he is a person entitled to claim it, and his action must stand dismissed if he fails to claim the whole of that property. Mr. Justice Mahmood has expressed his reason for that view of law, and it appears to us that that is a rule of law which is consistent with commonsense. The pre‑emptive plaintiff should not be allowed to take, for instance, the best portion of the property bought, and leave the worst on the hands of the purchaser, or on the hands of the vendor. It is said here that the plaintiff' is willing to pay, the full purchase‑money, and leave in the hands of the purchaser the property in Moradabad. Possibly In this particular case the purchaser would not be suferer if that was accepted. But we can understand cases in which the purchaser was induced to take property, which otherwise he would not have taken in order to obtain the sale to him of other property which he desired. In such a case as that it might well be that although the whole of the purchase‑money was refunded to him, it would be to his disadvantage to be left with the incumbrance of a portion of the property." It will have been noted that the learned Judges have recorded their own hesitation in returning this opinion because, as they have pointed out, far from causing any wrong to the vendee, it was of advantage to him because while he got the full price he had paid to the vendee, he would have been able to keep back from the pre‑emptor a part of the property free of any cost. The learned Judges have quoted 6 All. 370 and 10 All. 182 In support of the proposition laid down by them but in my opinion, they are strikingly dissimilar. 6 All. 370 was decided by the celebrated Judge, Mr. Justice Mahmood. It was a case of two rival pre‑emptors, one of whom had a superior right. The suit of the one with the inferior right had been dismissed and on appeal Mr. Justice Mahmood held that "on the principles of equity, the suit of the rival pre‑emptor should not have been dismissed but that a decree ought to have been passed in his favour also, conditional on the failure of the pre‑emptor with the superior right, to deposit the decretal amount in time". IL was in this connection that the learned Judge said: " . . . . every suit for pre‑emption must include the whole of the property subject to pre‑emption conveyed by one transfer, and that when there are rival suits it is the duty of the Court to determine which of such rival suits is to succeed, and if more than one suit succeed, what extent of the property transferred is to be decreed in such suit. The rule Is based upon the equitable principle that a pre‑emptor, in seeking to enforce his right, shall not be allowed to break up the bargain which gave rise to his right. The principle has been adopted both by this Court and the Calcutta High Court, and requires no citation of authorities. Such, then, being an essential condition of a pre‑emptive claim, it seems to us that decrees, in cases where two rival pre‑emptors of the same degree seek to enforce pre‑emption, as each of them necessarily must do, in respect of the whole property conveyed by one transfer, are defective if they dismiss the suit for any portion of the properly, without providing for the contingency of the rival pre‑emptor‑decree‑holder omitting to enforce his decree in respect of the share decreed try him." Rival pre‑emptors when entitled to specific shares simulta neously have to pay proportionately. If either of them were allowed to pre‑empt only his share, without providing for the contingency of the rival decree‑holder not enforcing his decree to the extent of his share, it would certainly mean allowing partial pre‑emption because the vender won't get the entire I, price and the par, paid for may have been the one for which he had made the bulk payment; he is thus compelled to keep that part which he may not have been interested to purchase, on payment of a price that was not of his liking or that he may have not been prepared to pay had that part alone been purchased by him. That Mr. Justice Mahmood could not be understood to have meant by these words that a pre‑emptor who is prepared to pay the entire sale‑price for a part of then property sold, could also be thrown out of Court by condemning his claim as partial pre‑emption, is also evident from the following passage appearing in 8 All. 462: " . . . . . . the principle or ratio decidendi of denying the right of pre‑emption, except as to the whole of the property sold, is that by breaking up the bargain the pre‑emptor would be at liberty to take the best portion of the property and leave the worst part of it with the vendee." In Arjun Singh v. Sarfaraz Singh (10 All. 182) decided by Sir John Edge, C. J. and Mr. Brodhurst, J., two pre‑emption suits had been brought by rival preemptors; total share sold was 5 annas 6 pies. Arjun Singh was held entitled to 3 annas on payment of Rs. 1308‑9‑0 and Sarfaraa Singh to 2 annas 6 pies on payment of Rs. 1090‑7‑

0. The decree required them to deposit the decretal amount within 30 days; it further provided that in case of default by either of them to pay the amount specified against him within 30 days, the rival pre‑emptor was entitled to pre‑empt every this portion by making the further deposit within a further period of 15 days. None deposited the money within 30 days; then Arjun Singh deposited Rs. 1,090‑7‑0 and thus sought to pre‑empt only the share of Sarfaraz Singh on payment of a proportionate price. This was disallowed. Justice Mahmood accepted the appeal and a Letters Patent appeal was dismissed by the Division Bench. It is not, therefore, the case of a pre‑emptor offering the whole sale‑price for only a part of the property. Mr. Justice Mahmood bold "Now this being so, the decree of which the decree‑holder could avail himself was the decree which he himself obtained and not the decree which had been passed against him whatever its terms :nay have been. The present respondent Arjun allowed his decree for pre‑emption to lapse by reason of not having deposited Rs, 1,308‑9‑0, which that decree required him to do within thirty days, and that decree could not therefore be of any further use to him. Having thus foregone the benefit of his decree, I do not think he is entitled to execute the decree which Srfaraz had obtained, simply because that decree, with reference to the other decree, allowed Arjun to pre‑empt the remaining 2 annas 6 pies share within fifteen days of the default of payment of the purchase‑money by Sarfaraz. The effect of the ruling of the lower appellate Court would be to split rip the bargain of sale, because if Arjun could pre‑empt only the 2 annas 6 pies share as he is seeking to do here, the remaining 3 annas would still be left in the hands of the vendees. The view of the law taken lay the lower appellate Court is erroneous, because it is opposed, as I have already said, to the very fundamental principles of the law of pre emption." The Division Bencb bas referred to 6 All. 423 and 6 All. 455 while laying down the general proposition that a person claiming pre‑emption must claim the whole property sold and not, part only, if lie has, against; the vendee, a pre‑emptive right to the whale. In 6 All. 423, the whole property was sold for Rs. 2,000 but tire plaintiffs claimed the right of pre‑emption in respect of a share only "on payment of Rs. 400 or any other amount which the Court might adjudge as a proportionate part of the purchase- money". The trial Court had dismissed the suit on the ground of partial pre‑emption but the first appellate Court decreed it. An appeal was accepted by a Division Bench and the suit was dismissed. Accepting the appeal, Mr. Justice Mahmood explained the doctrine of partial pre‑emption in the following words :‑ "It is a fundsmental principle of the law of pre‑emption that the pre‑emptor cannot break up the bargain of sale by suing only for a portion of the property conveyed by the sale which gave rise to the pre‑emptive claim; and the rule has been repeatedly adopted by the Calcutta High Court (Cazee v. Sheikh Musseeutoolla), Abdool Ghuffoor v. Noor Banoo; (Izzuttoolla v. Bhikaree Mollah) in cases which appear from the reports to have been governed by the Muhammadan Law of pre‑emption. But the doctrine has its origin in the general principles of justice, equity, and good conscience, and the reason of the rule is that the very nature of the pre-emptive right means that the pre‑emptor can substitute himself in the place of the purchaser only by taking ail the benefits as well as all the disadvantages of the sale is respect of which he chooses to pre‑empt‑an illustration of the maxim of law that he who takes the benefit ought also to bear the burden. He is not allowed to exercise his choice by pre‑empting only a portion of the property sold, for if fertile land is sold in conjunction with barren land under one and the same bargain of sale, it would be opposed to natural justice to allow the pre‑emptor to take only the fertile land and to leave the barren tract to the purchaser, who would probably have not bought the waste land at all, unless he acquired with it also the ownership of the fertile area. But this is not the only reason upon which the rule is based. The right of pre‑emption owes its origin to the policy that the introduction of a stranger into an estate will not be conducive to peace, but will disturb the quiet enjoyment of their rights by the co‑sharers of the vendor. Now, if a pre‑emptor objects to the introduction of a stranger, he must necessarily object to his introduction, en principle, as a proprietor of any part of the estate, or he must not object at all." In 6 All. 455, the facts are not given in detail, but reference is made to 6 All. 423 (discussed above) and the suit thus seems to have been fled against that part of the property which had not been included in the earlier case and it would thus be reasonable to assume that in this suit also, the pre‑emptor sought to pre‑empt on payment of only a proportionate price. In 32 All. 3015 1 C 897, a respondent in a pre -emption appeal, had died and his legal representatives had not been impleaded. This care to light after two years during execution proceedings and the Court held that the decree as a whole had become incapable of execution. It is not given in the judgment as to whether the property bad been sold jointly or in specific shares. From the fact that it was admitted before the Court (obviously by the decree‑holders) that "the suit was one In which the cause of action did not continue against the surviving defendants", it can perhaps be assumed that the sale was indivisible. In A I R 1926 A11. 152, property had been sold to 8 persons and a suit for pre‑emption was dismissed. Pending appeal, one of the vendees died and his legal representatives were not brought on record; it was held by a Division Beach consisting of Lindsay and Kaubaiyalal, JJ. that the whole suit had abated. They retied upon A I R 1925 All. 108 and 32 All.

301. It is not stated in the judgment that the vendees had specified shares in the sale because if the shares were not specified, it could be said, as the learned Judges have said, that "no decree which we could give could displace the representatives of the deceased vendee from possession". In A I R 1925 All. 108, the vendee wai a Muslim, the pre‑emptor a Hindu. The pre‑emption decree was reversed on appeal. At execution stage, it came to light that one of the pre‑emptors had died pending original appeal and his legal representatives had not been brought on record. The trial Court upheld the objection that sander these circumstances no right had passed in the appellate decree. On appeal Mukarji, J., held that only 1/4th which belonged to the deceased was lost but Dalai, J. held that there being no specification of shares of the pre‑emptors in the decree and the decree being joint, the whole appeal had abated. It was thin referred to Daniels and Neave, JJ. who agreed with Dalai, J. Admittedly the, decree was joint and there was no specification of the shares of the pre‑emptors and the two latter learned Judges distinguished this case (where the 8 joint holders or the decree were Hindus) front Imdad Ali v. Jagan Nath (17 All. 478) on the ground that in the latter case, the deceased being a Muslim, the interests of his heirs were ascertainable, which means that In cases where the shires are ascertainable, there may be no total abatement. However, what is important to point out is that this ruling had not much to do with the facts of the latter Allahabad case as it did not involve the question of partial pre‑emption. Failure of the vendee to implead the heirs of one of the pre‑emptors‑decree‑holders was held to have resulted in the total abatement of the suit because the decree was indivisible and the shares unascertainable. In A I R 1946 All. 133, two plots were sold for Rs. 4,

000. A suit for pre -emption was brought for one of them. The trial Court granted a decree on payment of Rs. 1,750 which was toe proportionate price of tale property sought to the pre‑empted. In appeal, apart from holding that the plaintiff had no right of pre‑emption, the doctrine of partial pre‑emption was also found attracted. The decision was confirmed by the High Court but it is not clear from the report whether the pre‑emptor had offered full price though from the fact that the trial Court had granted a decree on payment of proportionate price, it seems that full price had not been offered. The learned Single Judge placed reliance on A I R 1927 All. 504 and 6 I C

358. In A I R 1927 All. 504, the relevant dispute was that since a kacha public road passed through a portion of the plot, whether such portion was also available for pre‑eruption? The pre‑emptor had sued for the whole plot. In 6 I C 358 two plots and a portion of a third one were sold. The pre‑emptor who was a co‑sharer in another plot which adjoined one of them, sought pre‑emption of all the three on the basis of vicinage which was allowed: In the Punjab, I have not been able to trace any case like 11 All. 108 wherein an offer may have been made for pre‑emption of a part of the pre‑emptiable property on payment of full price and the same rosy have either been refused or accepted In 104 P R 1882, land was purchased by two brothers. One of the vendees died before institution of the suit for pre‑emption. He was succeeded by co‑vendee and a widow; she was impleaded beyond limitation. The case was remanded to the Additional Commissioner with the direction to enquire as to whether the suit against her was barred by time and it was further laid down that if it was found to be so, the whole suit was liable to fail. Mr. Barklay, J., gave the following reason: "I do not think that plaintiff could select one of the persons interested in a particular sale and claim the right of pre‑emption in respect of such sale against that person alone, omitting others similarly interested." This would only mean that a pre‑emptor cannot be allowed to pick and choose, but it would be going too far to assume that the learned Judges intended also to coves the case of a plaintiff who was prepared to pay full price for part property only because that question was not before them. In 149 P R 1889, there was a sale by one Hindu in favour of another Hindu, one of whose adopted sons was impleaded after limitation had expired. It was held that the whole suit had abated. The question as to whether the plaintiff was entitled to remainder of the property on payment of full price was neither raised nor gone into and could perhaps neither be raised nor gone into because the parties being Hindus, the shares of the heirs were not ascertainable. In 66 P R 1896. 1:nd had been sold to three persons for a lump sum of Rs. 2,000. 2/3rd jointly in favour of two brothers and 1/3rd irt favour of a third person. One of the two brothers died before institution of the suit and one of his legal representatives was impleaded beyond limitation. It was held that the suit being barred against the legal representative, was also barred as a whole. It will be seen that as there was no offer by the plaintiff to purchase the remaining property on payment of the entire gale‑price of Rs. 2,000 the Court did not go into this question. On the other hand, from the following passage, such a possibility seems to me to have been conceded: "In our opinion the sales of the shares could only be said to be distinct if specific performance of the bargains could be separately claimed and enforced either by the seller or by the purchasers. We do not think that Punjab Singh could have sued to enforce the contract of sale for his share on payment of a proportionate share of the purchase money. The reply of the seller would have been that she had contracted to take Rs. 2,000 for the whole land, and was not bound to tale anything less, and there can be no doubt that her defence would have been successful." In 10 P R 1909=1 I C 397, several properties were sold in Delhi resulting in several suits for pre‑emotion but none of the plaintiffs sued for the whole property. Following 11 All. 108 and 6 All. 423, all suits were dismissed. It is nowhere stated in the judgment that the pre‑emptors or anyone of them had sought or offered, to pre‑empt part prop‑ty on payment of full price. In 50 P R 1909=4 I C 179, two adjoining houses were sold but a suit for pre‑emption was brought for only one of them by a person whose house adjoined one of them. Obviously he had sued on payment of a proportionate price. The question was whether he should not have also sued for the other house and by not having done so whether the vendee had also not become a person with equal rights in so far as the house sought to be pre‑empted was concerned because the house not pre‑empted also adjoined the house sought to by pre‑empted. The case passed through the hands of nine Judges. It was first heard by a Division Bench, thin a Full Bench and finally by the Full Court. The ultimate result was that both the questions were decided in the negative. Had the Court decided the first question in the affirmative, even then it should have made no difference because clearly, the pre‑emptor wasn't pre‑empting part of the property on payment of full price. In A I R 1934 Lah. 429, land had been sold to two persons. During the pendency of a Letters Patent appeal, one of the vendees‑respondents died and his legal representatives were not impleaded in time. It was held that the appeal had abated as n whole. It doesn't appear from the report that the pre- emptor offered to pre‑emit the remaining part of the property on payment of full price. On the contrary, from the following passage appearing in the judgment of Tek Chand, J. it appears that he sought to pre‑emit it on payment of a proportionate price : "The right of pre‑emption is not a right of purchase either from the vendor or the vendee, but it is one of substitution for the vendee in the original sale and therefore if the plaintiff had brought the suit against one of the joint purchasers only and claimed possession of a fraction of the property sold on payment of the proportionate share of the purchase price, his suit would have failed on the short ground that it did not embrace the entire property sold, but was one foe partial pre‑emption. It is no doubt true that it is mentioned in the sale‑deed that the two vendees were to take the property in equal shares, but this does not male airy difference for there was no specification of the amount contributed by each vendee, and a perusal of the deed shows, that so far as the vendor was concerned it was a single and indivisible bargain, and not two distinct and divisible transactions which for the sake of convenience had been written on one piece of paper." Out of the two Lahore cases wherein a contrary view has been taken, namely, 132 I C 895 and A I R 1933 Lah. 33, the latter seems not to have been brought to the notice of the learned Judges but the former one was dissented to. Coldstream, J. who was a member of the Bench, had written the judgment in 132 T C

895. In a note appended to the latter judgment, he has accepted the position that the view he took in that case was incorrect. A ruling often cited on the subject: is A I R 1935 Lah.

635. Land was sold to two persons in equal shares against a consideration of Rs. 2,

000. One of them had a right of pre emption. A collateral sued for pre‑emption of the one‑half sold to a stranger, on payment of Rs. 500 which he later sough to raise to Rs. 1,

000. It was held that the suit was hit by the doctrine of partial pre‑emption. It will be seen that the pre‑emptor at no stage offered to purchase the one‑half of the stranger for the entire price of Rs. 2,

000. On the other hand, the right to pre‑emit a part sin payment of full price seems to have begin accepted as the learned Judges stated :- "As remarked in the Treatise on the Law of Pre‑emption in the Punjab by Sir Shadi Lal. Edn 3 p, 452, it is a well established principle of the law of pre‑emption that a pre‑emptor, whose right extends over the entire property sold, mast take over the bargain in its entirety, and has no right to pre‑emit a part of the property sold on payment of a pro portionate part of the price." In Ahmed Din v. Siraj Din and others, it has been indadvertently stated that the pre‑emptor had later o9ered full price. In P L D 1960 Lah. 155, sale was in favour of seven persons, one of whom died pending appeal and two of his legal representatives were not brought on record within time and it was held that the whole appeal had abated. The learned Judge has merely followed A I R 1934 Lah. 429 while A I R 1930 Lah. 33 was not brought to his notice, it is evident that the pre‑emptor did not offer to purchase the remainder of the property on payment of the entire price. In A I R 1933 Pesh. 74, property sold was claimed by plaintiff to be partly his own. He, therefore, sued for a declaration of title to that extent and for pre‑emption for the remainder. It was, however, found that he had sued for a lesser share than actually belonged to the vendor and had also offered Rs. 200 only as price while the whole property had been sold for Rs. 950 and thus even the proportionate price of the land, excluding his own, was much more than what he had offered. The suit was dismissed anal the example given by the learned Judge shows that he was really thinking that pick and choose ors payment of a proportionate, price could not be allowed. There is, however, a Single Bench decision of this Court reported as P L D 1963 Azad J & K 44 laying down that partial pre‑emption cannot be allowed even on payment of the whole price. The vendee, in this cage, died before the institution of the snit; one of legal representatives `had not been impleaded. The learned Judge merely relying upon 86 P R 1919 and A I R. 1925 Lab. 343, dismissed the plaintiff's appeal. 86 P R 1919 is not available here nor 9s the title of the cafe cited in the ruling, but from the brief facts mentioned, it seems that it perhaps corresponds to A I R 1919 Lab. 25 entitled Mst. Hussain Bibi v. Hakim and others. In this case, there were two vendees, one of whom had died before the institution of the suit. It was held that the sale being jointly in favour of the vendees, the whole suit had, therefore, abated. In A I R 1925 Lab. 343 there were five vendees, only four of whom had been impleaded as defendants or at least that was the finding of the Courts. The fifth one was impleaded beyond limitation. It was held that the whole suit had abated. Neither do the judgments say that the shares of the vendees were specified nor is it mentioned that the pre‑emptors sought to pre‑empt the remaining property on payment of the entire sale‑price. On the other hand, we have 132 I C 895 and A I R 1930 Lah. 33 which have taken a contrary view. In Bishen Singh v. Karam Illahi (132 I C 895), the case was heard by Shadi Lal, C. J. and Coldstream, J. The judgment was written by the latter while the learned Chief Justice agreed. Sale had taken place in favour of five persons in specified shares. The suit was dismissed and the District Judge dismissed the appeal on a preliminary objection. On second appeal, a preliminary point was taken by the respondents that the appeal had abated by reason of one of the vendees, Khera, having died and an application for impleading his legal representatives having been already dismissed as time‑barred. Toe Division Bench, following A I R 1928 Lah. 572 held that the appeal had abated only to the extent of the deceised. It was decided on the 24th of November 1930. In Madho v. Mst. Mehro (A I R 1930 Lah. 33), the case was decided on the‑30th of May 1929, by Shadi Lal, C. J. and Hilton, J. In this case land had been sold to some persons represented by defendants 2 to 13 in the pre‑emption suit brought by one Madho. Both the trial Court as well as the District Judge held the suit time barred. On second appeal in the High Court, an objection was raised that one of the defendants‑respondents had died and the appeal had abated as a whole. The contention was rejected and it was held that it abated only to the extent of the share of deceased vendee which was 1/12th. The judgment is written by Hilton, J. and Shadi Lal, C. J. has again agreed. A perusal of the two judgments does not show that the pre‑emptor either offered or was required to take the remainder on payment of full p1ce. It is possible that it was for this reason that the Bishen Singh case was not followed in A I R 1934 Lah. 429 because unless full price is offered for the remainder, the doctrine of partial pre‑emption does come into operation. Thus the examination of case‑law shows that these were cases where the pre‑emptor failed because either a vendee was not impleaded or his legal representatives were wholly or partly left out. As I have shown, none of these cases except 11 All. 108 show that the pre‑emptor was willing to get the remainder on payment of full price. Even in this case, the learned Judges have been anxious to record that they had disallowed the prayer with hesitation. It is a measure of their greatness and an inspiring example of self‑detachment that they recorded their own doubts about the absolute correctness of the view taken by them. As regards the ruling; cited in their judgment, I have shown how they were strikingly dissimilar with the case before them. There is a plethora of case‑law on the application and importance of precedents it is unanimously agreed that a general proposition of law laid down in a case must be interpreted in the light of its own facts and should not be deemed to have been intended to apply to cases with G materially different facts; otherwise progress in the development of law is bound to retard and the Judges unduly an unreasonably obstructed on the dispensation of justice. Reference may, in this connection, be made to the following observations of the Earl of Halsbury, Lord Charceller, in Quinn v. Leathem (1901 A C 495) as appearing in A I R 1931 Mad. 55 "There are" said his Lordship, "two observations . . . . . . . which I wish to make and one is . . . . . . . that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it." An instance in point, under the Pre‑emption law itself, is 8 All. 462 and 19 All.

148. In the first case where there was specification of shares as well as the price paid by them, Mr. Justice Mahmood held that the co‑vendees with a right equal to that of the pre‑emptor, could not be deprived of their shares on account of having joined a stranger in the sale. In 19 All. 148, a case where there was only the specification of shares but not of price, the Full Bench held that the non‑specifica tion of price paid by each, made no difference and that the same result followed. Therefore, it is only reasonable to say that the rule laid down in 6 All. 423 was intended only for cases, as the one before his Lordship, wherein a pre‑emptor entitled to pre‑empt the entire property sold, sought to subject the bargain to his own convenience by suing for a part of the property only on payment of a proportionate price, because it would certainly be a capricious choice for a pre‑emptor not that he was abandoning a part of the property, for that is foolish and not capricious but because he was doing so to injure the vendee rind to get fat at his cost by paying only part of the price which might ostensibly look reasonable but does, on deeper examination, unfold its capriciousness. Dealing with the same point in Civil Appeal 1\o. 49 of 1972, Ahmed Din v. Siraj Din and others, I remarked : "'What, it seems to me, is meant by the doctrine is that no pre‑emptor can be allowed to pick and choose; i.e. be cannot select a piece out of the whole and seek to be substituted there in for the vendee on payment of a proportionate price, because if that were allowed, he could pick up the best and leave the worst part unpre‑empted. It doesn't infrequently happen that the property purchased by a vendee is not entirely of his liking. While purchasing culturable land, one has at times to purchase banjar land also; one may wish to purchase only the ‑piece which is adjacent to ore's house but the vendor being unwilling to sell it alone, one has to purchase some additional un‑needed land also. In such cases the vendee actually pays a much higher price for tie piece be needs or the culturable part of it than for that portion which is actually thrust upon him by the Vendor." But what is the caprice of a man like the pre‑emptor in the instant case who, entitled to get 28 kanals and 12 marlas upon a certain price, by his own folly, stands deprived of about two kanals without any reduction in the price and how does the equity's understandable solicitude for the vendee get hurt in such a case? After all, justice, equity and good conscience do not move in any particular direction only ; how are these frustrateo in a case where the pre‑emptor enforces his right only to a part of the property but by way of self‑punishment, offers to pay the whole price. The argument that the remainder may be a liability, is more fictional than real because if a piece of immovable property were absolutely valueless, the vendee is welcome to abandon it; after all he Is under no compulsion to keep it. At least in the present case, it is not valueless. It is culturable land. Frankly speaking, I fail to visualise such a situation and that too with the population explosion of the 20th century and man's inherent unsatiated greed. In such a situation, far from coming under any burden, he is s beneficiary and is able to retain ownership of a part of property without having paid anything for it, not even the cost o" stamps. Respectfully dissenting, therefore, with the view taken in 11 All. 108 and P L D 1963 Azad J & K 44, 1 accept the appeal of Muhammad Beg also and hold that the suit having abated only to the extent of 7/120 (the share of Maroof Jan), he is entitled to pre‑empt the rest of the property sold on payment of full price. Both the cases are, therefore, remanded to the District Judge for fresh disposal. The parties shall bear their own costs of this Court. A certificate of fitness for appeal to the Division Bench 9s hereby issued in favour of both the parties in both the appeals. S. A. H. Appeals accepted.