P L D 1949 Lahore 53 (PLP)

Shuja-ud-Din for Respondent. Cornelius, J.-This second appeal by the defendants, Muhammad Hayat and Muhammad Ali, arises out of a suit brought by one Ghulam Murtaza to pre-empt the sale of land and a house situated in village Chak Qazian, Tahsil Shakargarh, District Sialkot, by one Imam Din to the defendant, Muhammad Hayat, who further conveyed it to his own son Muhammad Ali. The contest which arose in the case was as to the respective rights of the plaintiff and the first vendee to pre-empt a sale of the suit land by Imam Din. The pedigree-tables of the village were produced and it has been established, after certain clarifications of the matter contained in those pedigree-tables, that the vendor, the vendee and the plaintiff are all descended from a common ancestor named Muhammad Adam. The vendor belongs to the line of Abdul Karim son of Muhammad Adam, the vendee to the line of Sheikh Ahmad, another son of Muhammad Adam and the plaintiff to the line of Abdul Rahim, a third son of Muhammad Adam. It is also established from these pedigree-tables that no two of these three persons viz., the vendor, the vendee and the plaintiff are connected by descent from any nearer common ancestor than the aforesaid Muhammad Adam. The trial Court found on the basis of these facts that the plaintiff and the vendee had an equal right of -pre-emption in respect of the sale by Imam Din, and it accordingly dismissed the suit. The plaintiff went up before the Senior Sub-Judge in appeal, and the learned Senior Sub-Judge allowed the appeal and granted the plaintiff a decree for pre-emption on payment of the sale price as to which there was no dispute. The ground upon which the judgment of the first Court was reversed was that the vendee's father was alive, and for this reason he could not be regarded as an heir of the vendor, since the preferential right would vest in his father. The vendee and his son have accordingly come to this Court in second appeal, and seek restoration of the order of the first Court. The matter appears to me to be clearly covered by authority namely, the case Jang Bahadur Khan v. Karam Khan 21 P R 1908. That was a case decided under section 12 (a) of the Pre-emption Act of 1905, but in essential respects, that provision is not different from clause (a) of section 15 of the Pre-emption Act of 1913, by which it has been replaced. The relevant provisions of section 15 (a) are that the right of pre-emption in respect of agricultural land and village im movable property, which is sold by a sole owner, vests "jointly in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or property sold." The wording of section 12 (a) of the Act of 1905 was slightly different ; the relevant portions read as follows :- " * * the right of pre-emption in respect of agricultural land and village immovable property shall vest- (a) In the case of the sale of such land or property by a sold owner * * * in the persons who but for such sale would be entitled to inherit the property in the event of his or their decease, in order of succession". The expression "his or their decease" has reference to the death of the vendor or vendors. In the case appearing in the Punjab Record of 1908 the plaintiff and the vendees were equally related to the vendor. The Courts below had held that in consequence of this, the plaintiff's was liable to dismissal, and they had accordingly dismissed it. The learned Judges of the Division Bench of the Punjab Chief Court dismissed the appeal, brought by the plaintiff, and in doing so they dealt with certain arguments which are relevant for the purposes of the present case. It was contended before them that the plaintiff and the vendees were not the persons most nearly related to the vendor who were in existence ; there were sons and brothers of the vendor who had not sued, and therefore, the claim of the plaintiff could not lie under clause (a) of section

12. This argument was repelled by the learned judges who came to the conclusion on a proper interpretation of the words of the clause that it conferred a right of pre-emption "on the whole line of heirs and not merely -on the next and nearest heirs at the time of sale, it being further provided that the right inter se would be determined by the order of succession, that is the nearer heir would exclude the more remote". The learned judges went on to observe as under :- "The right being on the assumption made conferred on one single line of heirs alone, no question of order of succession would or need arise. The argument used for the appellant evidently proceeded on the assumption as if decease at the date of sale were contemplated. This is not what the section says, and as it is unknown at the date of sale, who would be the ultimate heir in the event of decease of the vendor, the right for obvious reasons is conferred on the whole line of would-be-heirs". This observation is directly opposite to the decision of the present case. By clause (a) of section 15 of the present Act also, it must be held that the right of pre-emption is reserved in favour not of any particular individuals in existence at the date of the sale or suit but, in favour of "the whole line of would-be-heirs" Learned counsel for the respon dents posed the question, how would the order of succession be fixed inside one of these lines of heirs, if ascendants and descendant in several degree were in existence ? The answer to my mind is to be found in two considerations namely, firstly, that any two lines which drive from the same common ancestor with the vendor would be placed on an equal footing, and secondly, as between the members or representatives of any such line, the failure of any member to sue for pre-emption would not debar any descendant of his from suing. Both these con siderations appear to me to be derivable directly from the authority cited above. In this view of the matter, the conclusion of the learned Senior Sub Judge that in the presence of his father, the vendee had no right of pre emption in respect of the sale, is erroneous, and I accordingly allow this appeal and, setting aside the decree of the learned Senior Sub-Judge, restore the order of the trial Court dismissing the plaintiff's suit, but having regard to all the circumstances, I leave the parties to bear their own costs throughout. K. M. A. Appeal allowed.