P L D 1964 Azad J & K 16 (PLP)

M. Y. Saraf for Appellant. Sardar All and M. Y. Cheema for Respondents Nos. 1, 2 and

3. ABDUL HAMID KHAN, C. J.‑The subject‑matter of this letters patent appeal against the judgment of the learned Single Judge of this Court dated 15‑2‑1962, is a sale deed dated 24‑7‑1956, executed by Muhammad Alam and Sher Muhammad (Vendors) in favour of Sardar Ali and Fateh Alam concerning the suit land. Three pre‑emption suits which were consolidated by the Sub‑Judge, Mirpur were filed to pre‑empt this sale. Mst. Sara wife of Sher Muhammad (Vendor) filed the pre- emption suit on 23‑9‑1956. Shamas‑ud‑Din a collateral of the vendors filed the suit on 16‑7‑1957 and Mst. Sahib Noor mother of vendors filed the suit on 3‑7‑

57. The Sub‑Judge by his order dated 30‑3‑1962, dismissed the suit of Mst. Sara on the ground that as she had been divorced by Sher Muhammad vendor she had no locus standi to file the suit. He also dismissed the suit of Shamas‑ud‑Din on the ground that that he was a distant Muslim Law‑lieu of the vendors as compared to Mst. Sahib Noor the mother of the vendors. He, however, decreed tire suit of Mst. Sahib Noor. Mst. Sara and Shames‑ud‑Din. went up in appeal t;; the District Judge. Mirpur against the judgment and decree of the Sub‑Judge, Mirpur. The District Judge, Mirput by his judgment dated 20‑4‑1961. upheld the finding of the Sub‑Judge with regard to Mst. Sara but amended the decree of Sub‑Judge in so far as Shames‑ud‑Din was concerned. He being of the view that as Mst. Sahib Noor and Shamas.Ld‑Din both were Muslim Law‑heirs of the vendors they were both entitled to a decree in their suits in proportion to their shares as Muslim Law‑heirs. He, therefore, granted Mst. Sahib Noor a decree for 1/3rd of the sued land on payment of Rs. 3,333/5/4 and Shamas‑ud‑Din a decree for 2/3rd of the sued land on payment of Rs. 6,666/10/8. Both Sahib Noor as well as Shamas‑ud‑Din went up in appeal before the Single Bench of this Court against the judgment and the decree of the District Judge, Mirpur. The learned Single Judge by his judgment dated 12/2/62, dismissed both the appeals and up‑held the judgment of the District Judge, Mirpur. Sahib Noor alone has now come up in appeal before the Division Bench of this Court against the judgment and the decree of the learned Single Judge. The only point that has been raised before us is that since Shamas‑ud‑Din is a residuary of remoter degree and there are other residuaries of the near degree who have not filed‑ any suit for pre‑emption, Shamas‑ud‑Din would not get any share in the inheritance of the vendors and therefore should not have been held as entitled to any decree in this case. This very point was raised before the learned Single Judge of this Court but he, following, an unreported judgment of this Court in a Civil Appeal No. 68 of 1960 Mst. Sultan Begum v. Sardar Khan and others decided on 15‑12‑1960, held that Shamas‑ud‑Din would be entitled to a decree for pre‑emption as a residuary though there may exist some more residuaries of a near degree. The view taken in Civil Appeal No. 65 of 1960, was that law of pre‑emption confers the right of pre‑emption on the whole line of heirs and not merely on the next and the nearest heir at the time of sale. A It is open to the more remote heir to sue for pre‑emption, if the nearer heirs decline or omit to assert their rights. Similar view was taken by Justice Cornelius in Muhammad Hayat v. Ghulam Mortaza (P L D 1949 Lah. 53). We reproduce below the observations of his Lordship of the Lahore High Court:‑ "The learned counsel for the respondents posed the question, how would the order of succession be fixed inside one of these lines of heirs if ascendants and descendents in several degrees were in existence 7 The answer to my mind is to be found in two considerations namely, firstly, that any two lines which derive from the same common ancestor with the vendor would be placed on an equal footing and secondly, as between the members or representative of any line, the failure of any member to sue for pre‑emption would not debar any descen dent of his from suing." We entirely agree with the view expressed by the learned Single Judge of this Court which is identical with the view expressed in the judgment quoted as P L D 1949, Lah.

53. We. therefore, uphold the judgment of the learned Single Judge and dismiss the appeal with costs. If the pre‑emption money has not been deposited by Mst. Sahib Noor the same may be deposited till 30th of March 1964, failing which her suit steal stand dismissed. K. B. A. Appeal dismissed.