P L D 1984 Peshawar 244 (PLP)

"While, therefore, there is good reason why voluntary transfers should not pass a right of pre‑emption as regards properties previously sold, those reasons do not apply to transfers by inheritance. As regards ransfers by inheritance the general principle should apply that the right of pre‑emption passes with the land." Regarding objection that the father was the person on. whom the notice had to be served and that it was he who had the right to sue and that the right was thus a personal one which could not b: inherited, it was observed :‑ "The right was no doubt a personal one in the father based on his land, but I can see no reason why such right cannot be inherited by the son. If the father had waived or otherwise disposed of his right this would no doubt he binding on the son, as the father was representing the whole estate." Robertson, J., recorded his finding as follows :‑ "I concur in the conclusion come to by the learned Chief Judge. When an involuntary transfer takes place by inheritance the succession to the land takes the whole bundle of rights which go with the land and there is no hiatus in respect of the right of pre‑emption."

9. In Wajid Ali and another v. Sheban and others (1LR31All.623), again a Full Bench authority, a majority judgment holds that where a right of pre‑emption exists by custom as recorded in the village "Wajabul Arz", the right having once accrued does not of necessity lapse by the death of the pre‑emptor before making a claim but descends alongwith the property in virtue of which it subsists to the heir of the pre‑emptor. In the said case there were two questions before the Court, the first being whether A not being a co‑sharer at the date of sale shall have a right to bring a suit for pre‑emption before the expiry of period of limitation after inheriting the estate of his grandfather with a right of pre‑emption and the majority judgment answered the question in affirmative following I L R 20 All, 148 and 1 L R 28 All. 424 and distinguishing I L R 7 All. 535 holding that a right of pre‑emption runs with the land and the heirs of a pre‑emptor cannot be considered to be strangers and that the right once accrued to the pre‑emptor shall devolve on his heirs at his death who can make a claim within the prescribed period of limitation.

10. It thus comes to that I L R 28 All. 424, 133 P R 1907 and I L R 31 All. 623, all Full Bench authorities directly seized of the point in issue laid down a rule that a right of pre‑emption incident to or arising out of the ownership of the land devolves on the heirs inheriting the land at the death of the landowner and the right of pre‑eruption passes to the heirs with the land along whole bundle of rights and the heirs can exercise the right of pre‑emption before the expiry of the prescribed period of limitation provided their predecessor had not waived or otherwise disposed of his right in his lifetime or the heirs themselves were not barrel by their conduct or circumstances to enforce the right of pre‑emption.

11. In P L D 1960 Lah. 900 there was formulated a question referred to a Division Bench in the words :‑ "Whether the right of pre‑emption is heritable like any other property and accrues to the heirs of a deceased pre‑emptor or would be pre emptor after his death irrespective of the consideration whether the limitation for filing the ore‑emption suit by such heirs is still, in subsistance or has already expired." Kaikaus,.J. answered the question thus :‑ "A right of pre‑emption devolves on. the heirs subject to the condition that the heir too has a preferential right as against the vendee either on account of his ownership of land which may have devolved upon him or on account of his being a nearer heir of the vendor than the vendee." Qadeeruddin Ahmed, J., however, answered the question as follows :‑ "In the area which was formerly the Punjab, the right of pre‑emption is neither heritable nor does it survive the death of pre‑emptor. A suit instituted by a pre‑emptor abates on his death if the death takes place during the pendency of the snit. If an heir of a deceased pre‑emptor is qualified to pre‑empt he can exercise the right in virtue of his qualification subject to all the limitation of his own right." On a difference of opinion, the question was referred to a Full Bench consisting of Kayani, C. J., Kaikaus and Qadirud Din Ahmad, JJ., Kayani, C..J. summed up his conclusions as follows :‑‑ "If the owner of the pre‑empting property dies, the person who succeeds to the property should inherit the right of pre‑emption if it has not been waived or become time‑barred. If a right based on ownership is heritable a right based on relationship should also be heritable." In view of the facts of the case that a person having a superior right of pre‑emption on the basis of relationship and ownership of land at the time of sale had himself brought a suit for pre‑emption but died before the conclusion of the suit, his heirs were allowed to continue. In a way the authority does not have a direct bearing on the determination of the question involved in the case before me.

12. A reference of the question to s Division Bench was, however, necessitated‑as with respect to the right of pre‑emption based on ownership. there was a Division Bench judgment of Lahore High Court, in Nawab and other v. Mst. Irshad Begun (P L D 1953 Lah. 317), wherein it has been held that a right of pre emption did not devolve on the heirs while there was a Full Bench Judgment of the Punjab Chef Court in Faqir Ali Shan v. Ram Kishan and others that a right of pre‑emption based on ownership of land was to devolve on his heirs and since the learned Single Judge was not inclined to accept the Full Bench judgment as correct, he accordingly referred the matter to a larger Bench.

13. During the course of judgment Kaikaus, J. had made certain observations. Ordinarily the proprietary rights are heritable while personal rights are not heritable. Pre‑emption is a right to acquire the property in preference to others. A right of pre‑emption based on contract is, no doubt, heritable and if that is the position why not a right of pre‑emption based on Statute should also be heritable. . The primary right of pre‑emptor was that the property sold should be first offered to him. The secondary right of pre‑emptor is to follow the property sold and to acquire it in preference to the person (stranger) who purchased it. Again in case the vendor was to perform his obligations to offer the property to the pre‑emptor to purchase it in obedience to the primary right of the pre‑emptor, the latter would have since become the owner of the property and necessarily on his death. the property would have been inherited by his heirs. There would have arisen no question and necessity to enforce the secondary right of the pre‑emptor to follow the property sold and acquire it in preference to the vendee.

14. Besides, reasonings adopted in I L R 20 All. 148, I L R 28 All. 424, 133 P R 1907 and 1 L R 31 All. 523 had also duly prevailed with Kaikaus, J. during the course of discussion in his judgment in order to formulate a view point that the right of pre‑emotion is heritable. He has, however, subjected the rule to a condition that the heir must have a preferential right as against the vendee on account of his being a nearer heir of the vendor than the vendee or on account of his ownership of land which may have devolved upon him through inheritance. With respect it is submitted that in case of the right of pre‑emotion on the basis of ownership of land the heir shall necessarily inherit the land to have preferential right to the vendee, a stranger, and the condition imposed as such does not seem to be valid and operative.

15. Kayani, C. J., observed during the course of his judgment that it was most natural that son or heir should be placed in the same place in respect of the same property as his father enjoyed and if the father enjoyed a right of pre‑emotion as against a stranger, his son should also inherit the right of pre‑emotion at his death since he inherits the property which gave his father the very right of pre‑emption as owner of the property. He further observed that the stranger would not become less inconvient to the son or heir and that prima facie it "would be inequitable to call him a comparative stranger upon his father's. death and even if there is enacted a law to declare the right of pre‑emption a personal right in the sense that it dies with the father's death then such jaw would not appear to be just. It was observed that soon after a Full Bench judgment published in I L R 23 Lah. 155 that a vendee could improve his ‑status and defeat pre‑emption by a subsequent purchase, there was inserted section 21‑A by Punjab Act No. 1 of 1944 providing that vendee could not improve his status after the institution of the suit otherwise 'than through inheritance or succession thus placing inheritance on a different footing from an ordinary transfer by sale or otherwise. It was also observed that the inheritance should have a uniform effect in all cases. With regard to the argument that since the heir did not possess a right of pre‑emotion at the time of sale or/end at the time of the institution of the suit hence the heir not possessing a right of pre‑emotion at the relevant stages could not successfully pursue his right, it was observed that after all the heir is succeeding the right of pre‑emption and there could not arise a question in his case to possess the right of pre‑emotion at the time of sale or/and at the time of the institution of the suit and that the law only requires that there should be a right to acquire the property in preference to a stranger which right duly existed in the original pre‑emptor at the data of sale or/ant institution of a suit and the heir only succeeds to the said right and he cannot naturally: draw himself back into the past. Again mindful of the complications involved in the succession to the right of pre‑emotion it was observed that so long as the law permits the right of pre‑emotion let not the ordinary law of inheritance be excluded from its sphere of jurisdiction. It was, however, suggested to the Government that there should be ,provided in the law that the right of. pre‑emption can be exercised by a heir of the pre‑emptor only if the pre‑emptor has actually instituted a .suit and that the heir should be allowed 4e‑ continue the suit provided tie has not waived the right of pre‑emption. Nonetheless even with the ‑ above state of mind the learned Judge was led to sold out if the owner of the pre‑emoting property dies the person who succeeds to the property should 'inherit the right of pre‑emotion if he had not waived the right of pre‑emotion or the suit had not become time‑barred. In my humble view the Full Bench authority declared the right of pre‑emption‑ heritable by a heir even devolved on him before the institution of the suit provided the right has not been waived by the heir and he exercises the right of pre‑emotion by the institution of a suit within the prescribed period of limitation.

16. Muhammad Iqbal and 2 others v. Ghulam Ali Shah (P L D 1975 Lah. 1205), the rule laid down in P L D 1960 Lah. 900 was followed and it was held that the right of pre‑emotion is heritable but can be inherited by only those persons who have a preferential right as against the vendee on account of ownership of land which may devolve upon them or on account of their being nearer heirs of the vendor than the vendee. In the said case right of pre‑emotion was claimed on the basis of kinship under the Punjab Pre‑emption Act. It was, therefore, held that since S being the daughter of the deceased pre‑emptor could also have own preferential right as against the vendee being the heir of the vendor but that G the husband of S claiming inheritance from her could not be the heir of the vendor, as such, he could not inherit the right of pre‑emotion and accordingly the Court declined to implead him a legal representative and to revive the suit.

17. In Hassan Muhammad and 2 others v. Muhammad Hussan and 2 others (P L D 1977 Azad J & K 40), Shafi interpretation of law in favour of the heritability of the right of pre‑emotion in preference to the interpretation of Hanfi School of thought to the contrary was followed.

18. In the Draft Pre‑emotion Order, 1980, published by the Council of Islamic Ideology with the approval of the President for eliciting the public opinion, it is provided under Article 17, that when a pre‑emptor has died after making any of the demands under Article 13, his right of pre‑emotion shall stand transferred to his legal heirs. : Under Article 13 the demands are :‑‑ "(1) Talb‑i‑muwathibat. (2) Talb‑i‑Ishhad, and (3) Talb‑i‑Khusumat" Talb‑i‑Muwathibat means the immediate demand made by a pre‑emptor in the sitting or meeting in which he comes to know of the sale declaring his intention to exercise the right of pre‑emotion. The Note thereunder further explains that any words indicative of intention to exercise the right of pre emption are sufficient. Talb‑i‑lsbhad and Talb‑i‑Khusumat respectively mean demand by establishing evidence and demand by filing the suit. The Draft Pre‑emotion Order appears to a combined derivative of the different schools of thoughts based on Holy Qur'an and Sunnah. One thing is clear that the Draft Order does declare the right of pre‑emotion heritable to case of either of the three demands and necessarily in case of Talb‑i‑Muwathlbat or even Talb‑i‑Ishhad, the stage will be one of before the filing of the pre‑emotion suit.

19. Under section 4 of the N: W. F. P. Pre‑emption Act, 1950‑the right of pre‑emotion has been defined to mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons and it arises in respect of the sales of such land or property. Under section 16 of the Act, the pre‑emptor is required to have a subsisting right of pre‑emotion till the time of decree. There is no quarrel with the proposition that the pre‑emptor should possess superiority of pre‑emptive right at the time of sale, institution of the suit. and to continue with a subsisting right of pre‑emption till the time of decree. In case of Abdul Khaliq v. Abdul Ghani (P L D 1969. Lah. 249), the learned Judge stretched the above laid, rule to a pre‑emption case brought by the son of the original owner in the village who died before actually instituting the suit and the son inheriting his estate had brought a suit before the expiry of the period of limitation and accordingly the Court non‑suited him because he was not the owner in the village on the date of sale. Reference was made to P L D 1960 Lah. 900 and it was held that Full Bench case would have availed to the pre‑emptor only if his father had instituted the suit for pre‑emption and had died during its pendency and the son would have continued the suit upon the death of his father. True in the said case the original pre‑emptor had died after the institution of this suit and his heirs had succeeded him as his legal representatives but the reference to the Larger Bench was if the right of pre‑emption was heritable or not. In the said judgment it was held that the right of pre‑emption devolves on the heirs in case of kinship subject to condition but in case of ownership of land there is no such condition and if the very land has devolved upon the heirs on the basis of which a right of pre‑emption is claimed, the right shall also devolve on the heirs. The other two authorities i.e. A I R 1944 Lah. 172 and A I R 1947 All. 297 referred to in P L D 1969 Lah. 249 related to different situations as is one the pre‑emptor has improved .his position after the institution of the suit and in the other the pre‑emptor had transferred the pre‑empted property after pre emption decree which was found not be a case that the pre‑emptor had no right of pre‑emption at the time of sale. In unreported judgment in C. R. No. 116/78 decided on 24‑11‑1979; the learned Single Judge of this Court has also followed the above authorities end had non‑suited a pre‑emptor who had inherited the ownership of land with the right of pre‑emption subsequent to the sale but bad instituted his suit before the expiry of the prescribed period of limitation on the analogy that he did not have a superior right of pre emption at the time of sale.

20. To sum up the above discussion, P L D 1969 Lah. 249 and judgment in C. R. No. 116/78 have been, no doubt, given in cases with similar facts. But 133 P R 1907 and I L R 31 All. 623, both Full Bench authorities which have dealt with the cases of similar facts have not been referred to in the said Single Bench judgments. To my humble knowledge. the Full Bench authorities have not been so far overruled or distinguished on the point of heritability of the right of pre‑emption availed to a heirs on the basis of ownership of land devolved on him who exercises the right of pre‑emption within the prescribed period of limitation provided he has not otherwise waived his right of pre emption or is estopped to sue by his conduct. Again so far it is settled law that the right of pre‑emption is heritable after the institution of the suit‑V A question will arise as why the rule of having a right of pro‑emption at the time of sale should not equally in case of heir/legal representative who is allowed to continue the pre‑emption suit with success although his is a weaker cases as be did not possess a superior right pre‑emption at the time of sale as well at the time of the institution of the suit while a person who inherits the land with a right of pre‑emption and institutes the suit bas one disqualification of not having a superior right of pre‑emption at the time of sale but he has the very right at the time of the institution of the suit, and till the decree. In fact there has to be drawn a line of distinction between a person on whom the ownership of the property with a right of pre‑emption is devolved through inheritance, in whose case it shall not be necessary to possess a superior right of pre‑emption at the tithe of sale as he inherits the land with all its rights and encumbrances. He will be, entitled to exercise his right of pre‑emption within the prescribed period of limitation in respect of the sale earlier in time than inheritance. However, a person who acquires ownership of the property with a right of pre‑emption other than inheritance shall be deemed himself a stranger in respect of a sale earlier in time than his acquisition of the ownership. In fact there was drawn such a distinction in ILR20All.148.

21. In view of what has been stated above, I humbly hold that a person who had no right of pre‑emption at the time of sale but subsequently acquire it on inheritance of the land with a right of pre‑emption and accordingly institutes a suit of pre‑emption within the prescribed period of limitation h shall be entitled to pursue his pre‑emption suit to a successful end.

22. Since in the facts of the case other matters stood resolved between the parties, as such, the judgment and decree of the Court Additional District Judge dated 6‑5‑1978 are set aside while those of the Court of Civil Judge dated 28‑1‑1978 are restored. Plaintiff‑petitioner shall deposit the pre‑emption money in the sum of Rs. 10,000 within three months, if not already deposited, failing which his suit and revision shall stand dismissed with costs throughout. There is otherwise made no order as to costs.

23. Before parting, I must acknowledge the valuable assistance provided to me by the learned counsel for the parties. Besides I may record my gratitude and‑ indebtedness wholly due to Mr. Fazal Hussain Khan, Advocate appointed as amicus curiae for his most illuminating arguments in the case. 'He shall be paid a fee in the sum of Rs. 2,OOO by the plaintiff-petitioner who has succeeded in the cause. M.Z.M. Revision accepted.