1985 PLP 302 (MLD)

This civil revision is directed against the judgment and decree, dated 21-5-1981 whereby the appeal of the petitioner was dismissed and the judgment of the trial Court, dated 11-11-1979 was upheld.

2. The facts relevant for the disposal of the revision petition are that the land in dispute was purchased by Mst. Surraya, defendant-- petitioner from the real brother of her father named Muhammad Siddique for a consideration of Rs.12,000 through a registered sale-deed. Yaseen, Muhammad Rafique and Ali Nawaz respondents-plaintiffs filed a suit for possession through pre-emption on the plea that they held preferential right of pre-emption qua the vendee-petitioner as they were the sons of the brother of the vendor. The trial Court after framing the necessary issues and recording the evidence decreed the suit upholding the preferential right of pre-emption of the respondents-plaintiffs. The appellate Court dismissed the appeal observing that the vendee-petitioner being the brother's daughter of Muhammad Rafique vendor is only a distant kindred while the plaintiffs-respondents being the sons of the brother of the vendor are the residuaries and as such they- will have precedence over vendee as residuaries inherit in performance to the distant kindred under the Muslim Law.

3. Learned counsel challenged this finding on the plea that all heirs under Muslim Law do not inherit in order one after the other but simultaneously as estate of a deceased Muslim vests immediately in all his heirs on his death whether they be sharers or residuaries and as 5urraya Bibi vendee-petitioner held an equal right to inherit, the suit of the respondents-plaintiffs was liable to be dismissed. Reliance is placed on Mst. Part v. Fazal Rabi and others A I R 1945 Pesh.

45. It was held therein that Mst. Part, plain tiff-pre-emptor had an equal but not a preferential right. Learned counsel for the petitioner cited other judgments also in support of the argument raised but these judgments need not be noticed as on the question raised we have the authoritative pronouncement of the Supreme Court in the case of Jalal Din v. Saeed Ahmad and others P L D 1979 S C 879.

4. Before quoting the observations of the learned Judges of the Supreme Court in the above-noted case it may be pointed out that in the instant case the provision applicable is clause (a) of section 15 of the Punjab Pre-emption Act, 1913 and not clause thirdly of the said section as amended by Act 11 of 1955 as the sale in question was made by the sole owner. However, for the purpose of the point sought to be raised, the persons who are entitled to pre-empt remain the same; namely persons in order of succession who but for such sale would be entitled on the death of the vendor to inherit the land or property sold; The words "in order of succession" were interpreted in the case of Jalal Din (Supra) in para. 12 of the judgment as under:- "Moreover, the point raised loses sight of the words 'in order of succession' which, in the situation which is being examined will mean that under Islamic Law if there is a contest between 'sharers' or in a given case some 'sharers' or some 'residuaries', who, for example, succeed simultaneously and no one excludes the other and each succeeds upto the extent of his share, then, as the order of the succession is the same and none succeeds prior and in preference to the other, the suit will fail if the pre-emptor and the vendee are heirs of the above categories. However, if the vendee is an utter stranger, then the whole body of heirs, failing them two or more thereof, and failing them any individual of a class or a group can sue for the whole bargain. This position is made clear by section 13 of the Act itself which is headed as 'Joint right of pre-emption how exercised' and states that:- 'Whenever according to the provisions of this Act, a right of pre-emption vests in any class or group of persons, the right may be exercised by all the members of such class or group jointly; and, if not exercised by them all jointly, by any two or more of them jointly, and, if not exercised by any two or more of them jointly, by them severally, i.e. individually. 'This is so, because the right is to vest in the persons concerned 'in order of succession' which simply means the order in which persons inter se would be entitled to inherit."

5. In the instant case the petitioner is admittedly a distant kindred whereas the respondents are residuaries and it is also admitted that residuaries take precedence over the distant kindred in order of succession under Islamic Law. This being the position the respondents plaintiffs are to succeed prior and in preference to the vendee-defendant and as such they held preferential right of pre-emption. Learned Courts below were, therefore, justified in upholding their preferential right of pre-emption and in decreeing the suit. The petition, therefore, fails and is dismissed with costs. Petition dismissed.