1991 PLP 682 (MLD)

Muhammad Ali Khan v. Zewar Nisa and another AIR (29) 1942 Pesh. 22; Mst. Pari v. Fazal Rabi and others AIR (32) 1945 Pesh. 45; Rahim Bakhsh alias Rahim v. Gul Muhammad and another PLD 1968 Lahore 907 and Mst. Shahzad Bibi and another v. Gulzar Khan PLD 1973 Lah. 878 ref. (c) Punjab Pre-emption Act (I of 1913)

S.15

Civil Procedure Code (V of 1908), S.115

Superior right of pre -emption, determination

Pre-emptor as uterine brother of vendor was a mere sharer

Vendees were paternal uncle and paternal-cousins of vendor and thus fell in the category of residuaries

Pre-emptor, in order of succession, had, thus, no preference

Pre-emptor's right of pre-emption was not superior to that of vendees collectively, thus, he could not succeed to dislodge them from the joint sale in their favour

Appellate Court's judgment whereby pre-emptor's appeal was accepted, was set aside and that of Trial Court whereby pre-emptor's suit was dismissed, was restored. (d) Punjab Pre-emption Act (I of 1913)

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Doctrine of sinker

Meaning, scope and application. Doctrine of sinker which is applicable to the territory in Punjab, lays down that if a vendee having an equal or superior right of pre-emption associates with him in a sale which is joint and indivisible. a person with no right or right inferior to the pre-emptor. he is deemed to have sunk to the level of his associate-vendee and would not be entitled to defend him even to the extent of his own right. Superiority or inferiority of right of pre-emption is to be judged in competition to the plaintiff/pre-emptor. Therefore, even on strict application of doctrine of sinker, vendee would have sunk only to the level of his associate vendees and certainly not lower than that and thus would not be denuded to avail of that preference which the other vendees had. A. G. Chaudhry for Petitioners. Shaukat Haroon for Respondent. Date of hearing: 4th December, 1990. Khushi Muhammad owned land measuring 49 kanals, 14 marlas in village Sheikh Bhago of Tehsil Kasur. By Mutation No. 887, sanctioned on 8-5-1974, he, sold it to Balanda son of Jalal Din and his three sons, Ali Muhammad, Muhammad Sarwar, and Muhammad Anwar also of the same Mauza, for a lump sum consideration of Rs. 15,

900. Above sale was subjected to pre-emption, in separate suits by two brothers, namely, Bashir Ahmad and Hakim Ali. Rival suits were consolidated for a joint trial and common set of issues were settled in them. By judgment dated 28-4-1977, the trial Court dismissed both the pre-emption suits. It found that rights of the respective parties were at par with each other and the pre-emptors did not possess any preference. Hakim Ali accepted the judgment of the trial Court and did not file an appeal against it but Bashir Ahmad challenged the judgment in appeal before learned District Judge. His appeal came to be heard by learned Additional District Judge who disagreed with the view of the trial Court and found that in associating his three sons with him in the joint and indivisible sale, Balanda had forfeited his own preference also and could not resist pre-emption against him even to the extent of his own share of the land purchased by him. Consequent upon taking that view, appeal was accepted and pre-emption suit was decreed in favour of Bashir Ahmad pre-emptor, conditional upon payment of Rs.15,900 as sale price of the land to the vendees within a specified period. Usual default clause was also added in the decree-sheet. Against this judgment, vendees have come up in revision to this Court. It was admitted to hearing on 28-10-1984. There is no dispute on inter se pedigree of the parties. Balanda is paternal uncle of Khushi Muhammad vendor. His sons are his paternal cousins. Bashir Ahmad pre-emptor besides being uterine brother of the vendor, is also his paternal cousin. Pedigree-table Ext:P3 supports their relationship. It is not denied -that the sale in question evidenced by the mutation is joint and indivisible. Though the share purchased by each vendee is distinct, yet proportion in which the sale price was contributed by them is neither indicated nor specified. Therefore, on the test laid down in Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140, the sale shall be deemed to be joint and indivisible. Further, there is neither plea that the sale was divisible nor evidence given in support therefor. In this view, the sale was correctly found to be joint and indivisible in the Court below. Each vendee held 1/4th share in the land. Only question arising for decision on either admitted or proved facts is about the preferential right of pre-emption. It is settled that preference is quint essence of pre-emption and unless the pre-emptor possesses a better right as compared-to a vendee, he cannot dislodge him for being substituted for him in the sale. Right of pre-emption is a right to acquire property in preference to others. It is an accepted principle that for deciding superiority of right of pre -emption, the Court has to keep in view only the plaintiff/pre-emptor and the vendee and no other person and find that in the event of notional death of the vendor at the time of sale who of them, in order of succession, shall succeed to his estate to the exclusion of other. The person so succeeding for excluding the other has a superior right of pre-emption. If he is plaintiff, he gets substitution and if vendee, pre-emption suit must fail. If both of them are found .to succeed simultaneously, their rights are at par and in that eventuality, pre-emptor is bound to fail. This statement is supported by judgments in Muhammad Ali Khan v. Mt. Zewar Nisa and another AIR 1942 Peshawar 22, Mt. Pari v. Fazal Rabi and others AIR 1945 Peshawar 45, Rahim Bakhsh alias Rahim v. Gul Muhammad and another PLD 1968 Lah. 907, Mst. Shahzad Bibi and another v. Gulzar Khan PLD 1973 Lah. 878 and- Jalal Din v. Saeed Ahmad and others PLD 1979 SC

879. Judged on the above touchstone, as uterine-brother of the vendor, pre-emptor is a mere sharer and vendees i.e. father and sons fall in the category of residuaries. As such, pre-emptor, in order of succession, had no preference. Similarly, as a paternal cousin of the vendor, he was not possessed of any preference against paternal uncle and paternal cousins of the vendor. As for doctrine of sinker which is applicable to the territory in Punjab, it lays down that if a vendee having an equal or superior right of pre-emption associates with him in a sale which is joint and indivisible, a person with no right or right inferior to the pre-emptor, he is deemed to have sunk to the level of his associate-vendee and would not be entitled to defend him even to the extent of his own right. Superiority or inferiority of right of pre-emption is to be judged in competition to the plaintiff/pre-emptor. Therefore, even on strict application of doctrine of sinker, Balanda vendee would have sunk only to the level of his associate vendees and certainly not lower than that and thus would not be denuded to avail of that preference which the other vendees had. It is not denied that qua the vendees who were sons of Balanda, plaintiff had no clear preference. As paternal cousins of Khushi Muhammad; their right was at par with the plaintiff who in order of succession either as a uterine brother or paternal cousin of the vendor could not exclude them from inheriting the land left by the vendor. Therefore, they could not be described as total strangers. Their right of pre-emption was not inferior to the plaintiff/pre-emptor. Doctrine of sinker in pre-emption is intended for exclusion of strangers. That status the vendees could not be ascribed. Additionally, Balanda the paternal uncle of Khushi Muhammad vendor died on 4-10-1989 in course of pendency of the civil revision in this Court. He was survived by Mst. Taj Bibi widow, Ali Ahmad, Ali Muhammad, Muhammad Sarwar, Muhammad Anwar sons and Mst. Rehmat Bibi daughter. Of them, Ali Muhammad, Muhammad Sarwar, and Muhammad Anwar were already on record with their deceased father. Remaining legal representatives were substituted on record by an order of this Court on 1-12-1990. In my opinion, plaintiff's right of pre-emption was not superior to that of the vendees collectively, and, therefore, he could not succeed to dislodge them from the joint sale in their favour. Upon the view I hold, I could not agree with the learned Judge, below in his enunciation of law relating to doctrine of sinker-Consequently, I would accept revision petition, set aside impugned judgment and decree of the learned Judge below, and restore those passed by the trial Court dismissing the pre-emption suit with no order as costs in this Court. AA./B-229/L Revision accepted.