1991 PLP 1419 (SCMR)
SAWAR MUHAMMAD SHARIF and 2 others — Petitioners Versus MAKHMOOL and others — Respondents
| Citation | 1991 PLP 1419 (SCMR) |
| Forum / Court | High Court |
| Bench Members | ShafiurRahman, Actg. CJ., and Muhammad Afzal Lone, J |
| Parties | SAWAR MUHAMMAD SHARIF and 2 others — Petitioners Versus MAKHMOOL and others — Respondents |
| Primary Law | (c) Punjab Pre-emption Act (I of 1913), (a) Punjab Pre-emption Act (I of 1913), (b) Punjab Pre-emption Act (I of 1913) |
Q1: What are the key laws and sections cited in 1991 PLP 1419 (SCMR)?
This judgment primarily cites: (c) Punjab Pre-emption Act (I of 1913), (a) Punjab Pre-emption Act (I of 1913), (b) Punjab Pre-emption Act (I of 1913) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1991 PLP 1419 (SCMR)?
The case was heard and decided by the High Court bench comprising: ShafiurRahman, Actg. CJ., and Muhammad Afzal Lone, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1991 PLP 1419 (SCMR) (SAWAR MUHAMMAD SHARIF and 2 others — Petitioners Versus MAKHMOOL and others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- K. M. A. Samdani and Saleem Sahgal, Advocates Supreme Court and M. Aslam Chaudhry, Advocate-on-Record for Petitioners.
- S. Inayat Hussain, Advocate-on-Record (absent) for Respondents.
- Date of hearing: 2nd April, 1991.
- K. M. A. Samdani and Saleem Sahgal, Advocates Supreme Court and M. Aslam Chaudhry, Advocate‑on‑Record for Petitioners.
- S. Inayat Hussain, Advocate‑on‑Record (absent) for Respondents.
Headnotes / Summary
(From the judgment of Lahore High Court, Bahawalpur Bench, Bahawalpur, dated, 18-11-1990 passed in R.S.A. No. 38-87/BWP).
S. 15
Applicability of doctrine of lis pendens in pre-emption claims
Extent of
Doctrine of lis pendens was applicable to pre emption claims except in one situation where sale by vendee was to one, who had a superior right of pre-emption. Bakhshan and others v. Haji and others P L D 1954 B J 48 and Mst. Fateh Bibi v. Ahmad Khan and 6 others P L D 1971 Lah. 171 ref.
S.21-A
Re-sale by two vendees after the expiry of period of limitation when such right could be exercised in favour of third vender, who had equal right with pre-emptor while vendees selling the same had no such rights
Effect
In recognition of superior right of pre-emption of one of the vendees, sale could be made to him by other vendees having no such right, within period of limitation when such right could be exercised
Where right had been lost by lapse of time, then sale to such person could not be in recognition of his superior right of pre emption but would be as bad as to a stranger
Resale by two vendees in favour of third vendee, beyond period of limitation. thus, would not stand in the way of pre-emptive claim of pre-emptors.
S.4
There being more than one vendee, share of each had been specified but without specifying the amount paid by each vendee in respect of his share
Sale in circumstances would remain intact and could not be held to be divisible.
Judgment & Decree
SHAFIUR RAHMAN, ACTG. C.J.‑‑‑The petitioners who are the vendees in a pre‑emption claim, seek leave to appeal against the judgment of the Lahore High Court Bahawalpur Bench dated 18‑11‑1990 whereby their Regular Second Appeal was dismissed.
2. The petitioners who are three brothers purchased the disputed property on 26‑7‑1974. Of these, one of the brothers had equal right with the pre‑emptor but the others had not. The pre‑emption suit was instituted on 24‑7‑1975. The two brothers who had no right to compete with the pre‑emptor transferred their interest in favour of the brother who had such a right on 24‑1‑1976. They wanted to avoid the pre‑emptive claim on the ground that section 21‑A of the Pre emption Act had not been extended to Bahawalpur and was no bar to their claim and that doctrine of lis pendens did not apply to pre‑emption claims. This plea did not succeed.
3. The doctrine of lis pendens applies to pre‑emption claims except in one situation where the sale by the vendee is to one who has a superior right of pre‑emption. This exception to the rule of lis pendens finds recognition in many cases including Bakhshan and others v. Haji and others (P L D 1954 Baghdad‑ul‑Jadid 48) and Mst. Fateh Bibi v. Ahmad Khan and 6 others (P L D 1971 Lah. 171). A person can be said to have a superior right of pre‑emption in recognition of which a sale can be made to him only within the period of limitation when such right can be exercised. If the right is lost by lapse of time, then the sale to such a person could not be in recognition of his superior right of pre‑emption but would be as bad as to a stranger. On that principle the resale by the two vendees would not stand in the way of the pre‑emptive claim of the respondents.
4. As regards the divisibility of the sale in favour of the petitioners, an authoritative decision has already been given by this Court that where the share is specified but the money is not apportioned in respect of each share, the sale remains intact and cannot be held to be divisible.
5. No case is made out for our interference and leave to appeal is refused. A.A./S‑621/S Leave refused.