KARAM ELAHEE CHAUHAN, J.-Eiday Khan (hereinafter called the vendor) sold the land in dispute to Jalal Din (hereinafter called the vendee/defendant/ petitioner). Qaim Ali (hereinafter called pre- emptor) (now represented by his legal representatives) (respondents) filed a suit pre-empting the above sale alleging his superior right of pre-emption on the ground of being a real uncle of the vendor. The aforesaid relationship was held as proved and the suit was decreed by the learned Civil Judge on 10-12-1975.
2. The vendee-defendant filed an appeal, but without any success as the same was dismissed by the learned District Judge, Sialkot, on 2-4-1977. A regular second appeal of the vendee, being R. S. A.
514 of 1977, also met the same fate and was dismissed by a learned Single Judge of the Lahore High Court on 20-4-1977. The vendee-petitioner has now come up in a petition for special leave to appeal against the same to this Court.
3. The only ground which has been asserted before us by the learned) counsel for the petitioner is that which he had not urged in any of the Courts below, nor pleaded in his written-statement. The petition for leave to appeal was filed in this Court on 28-6-1977 and there too, this ground did not exist. He has urged this ground in his one miscellaneous application which he filed in this Court on 6-12-1977 under Order LXIX, rule 6 of the Supreme Court Rules (1956), praying that the aforesaid ground may be A allowed to be added in the main petition as ground "all" and be considered at the time of arguments. Without seeking orders whether that ground was to be allowed or not, the learned counsel straightway started arguing the said ground assuming as if merely filing of an application to add additional ground amounted to grant of permission to urge the same. In this respect, all that we need observe is that the learned counsel ought not to have been so presumptuous.
4. However, in support of his contention, learned counsel referred to section 15 of the Punjab Pre- emption Act (I of 1913), which reads as follows :- "Section 15. Person in whom right of pre-emption vests in respect of sales of agricultural land and village immovable property.-Subject to the provisions of section 14, the right of pre-emption in respect of agricultural land and village immovable property shall vest----
(a) where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly owned or held, is by all the co-sharers 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 ;
(b) where, the sale is of a share out of joint land or property, and is not made by all the co-sharers jointly,- firstly, in the lineal descendants of the vendor in order of succession ; secondly, in the co-sharers, if any, who are agnates, in order of succession ; thirdly, in the persons, not included under firstly or secondly above, 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; Provided that in case where the sale is by a Muslim, the firstly and secondly shall be inapplicable, and the thirdly shall read as follows;--- thirdly, in the 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.
5. The ground sought to be urged, in the words of the learned counsel, is as follows :--- "a/1. That the plaintiff respondents have based his superior claim of pre-emption on the ground that he was the collateral of the vendor and probably they relied on sub-clause firstly or secondly of clause (b) of section 15 of the Punjab Pre-emption Act. By the enactment of the Punjab Pre- emption (Amendment) Act, 1954 (XI of 1955) section 15 of the original Act had been amended in the following terms; Provided that in case where the sale is by a Muslim the firstly and secondly shall be inapplicable and thirdly shall read as follows;--- thirdly, in the 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 plaintiff/respondent therefore relied on a provision of law in order to assist his superior right of Pre-emption which so far as the Muslims are concerned had been removed from the Statute Book and has no longer in existence.
The plaintiff/respondents cannot succeed unless they plead and prove that in case of the death of the vendor they would inherit the vendor. Neither this is the pleadings of the plaintiff/respondents that they would inherit in case of the death of the vendor, nor all the Courts below have given pleadings on this point.
Itis therefore most respectfully prayed that the above-mentioned additional grounds may kindly be allowed to be added in the main petition as ground a/1 and be considered at the time of arguments."
6. There is no proof that the land sold was a share out of joint land and the pleadings in this respect, as made in this Court, are not specific though reference was made to section 15 (b)
(thirdly) as being applicable to a sale by a Muslim and not to section 15 (a) which, though similar, is applicable where the sale is by a sole owner. Be that as it may, for the purpose of the point sought to be raised, the persons 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". It was not disputed before us that the preemptor was related to and was real uncle of the vendor, and from that point of view, he was entitled to succeed him under Islamic Law. Learned counsel, however, submitted that in this case the son or sons, or, as a matter of fact, other direct descendants of the vendor were in existence (though they were not the pre-emptors and nor were they parties to the suit) nevertheless, in their presence the pre-emptor in this case, at the most, had just a chance to succeed-(spes successionis)-and, therefore, he could not be considered to be qualified for pre-empting the sale on that ground.
7. The contention has no merit. Clause (a) or clause (thirdly) of section 15 has been subject of adjudication in various cases and particularly the words "in order of succession", on which reliance is being placed by the learned counsel to now urge that if there are nearer heirs, who, though are not parties to the suit and nor are they pre-emptors before the Court, still their very existence will be a bar to the suit of a so-called remote or remoter heir, who alone may have sued, because, "in order of succession", in this context, would have no right to succeed at all. The case-law is against the plea taken (which, it may be mentioned, is not a new plea of first impression as was being submitted before us by the learned counsel) but is a well beaten track already covered by good precedents. In Muhammad Alt Khan v. Mt. Zewar Nisa and another (AIR 1942 Posh, 22), it was held that ; "It is admitted before me that the plaintiff is claiming pre-emption under clause (b) thirdly. It is an accepted principle of law that when ''deciding the question of the superiority of the right of pre- emption under clause (b) thirdly the Courts have only to keep in view the plaintiff and the vendees and no other relations of the vendor. Theyhave to take it that the vendor has died and have to find out as to who of the parties before them-the pre-emptor and the vendee-is entitled to inherit his property to the exclusion of the other. The person who is so entitled has a superior right of pre- emption. If he is a pre-emptor he gets a decree. And if he is a vendee the pre-emptor's suit is dismissed. On the other hand if it is discovered that they are entitled to inherit equally their right to pre-empt is declared to be equal and the pre-emptor fails."
Similar view was expressed in Ghulam Ali v. Qutab Din (AIR 1936 Lah. 477) where the plaintiff was a cognate. It was held at page 478 that---- "the plaintiff respondent would be a cognate and would be entitled to pre-empt the sale in favour of a stranger. It is, however, contended by the appellant's counsel that the right to pre-empt vests in the plaintiff only if there be no nearer heirs in existence at the time of the suit, and as in this case there are nearer relations of the vendors in existence who would be entitled to inherit their estate, in case they died childless, the plaintiff pre-emptor is not entitled to maintain the suit for pre- emption. The use of the expression however `in order of succession' in the clause clearly indicates that every person who would be entitled to succeed under the law is entitled to maintain a suit for pre-emption, but if a preferential heir chooses to exercise the right then the right of the remoter heir is defeated ; that is the only meaning of the clause under which the plaintiff claims a right of pre-emption. The conclusion of the learned Senior Subordinate Judge is, therefore, correct and these appeals are dismissed with costs."
8. To the same strain is Allah Din and another v. Prabh Dayal and others (AIR 1938 Lah. 646) where, at the same page, in Column II, it was held that;--- "The plaintiff comes under thirdly, as it is not disputed that he is a person entitled to inherit in the absence of nearer heirs. If it is assumed that the legatees under the will are heirs, it seems to us that the collaterals of the husband would still come in under section 15 (b) thirdly, because the right is given to all classes in order of succession who but for such sale would be entitled to inherit the land or property sold. It was laid down by their Lordships of the Privy Council in Sabz Alf Khan v.
Khair Mahomed Khan (1922) 9 AIR P C 139==67 I C 264=3 Lah. 48=59 I A 74 (P C) under the old Act that the effect of the then section was to confer the right of pre-emption in respect of agricultural land upon the whole line of heirs of the vendor, and not merely on the nearest heir at the time of the sale, but that the priority of right between claimants is to be determined according to the order of succession. This ruling applies to the present case and admittedly the husband's collateral is an heir and would therefore come under section 15 (b) thirdly. The legatees did not sue to pre-empt so that there is no competition between the plaintiff and them. For the reasons given we dismiss this appeal with costs."
Same view was taken in Mst. Murad Bibi v. Abdul Razaq (PLD 1973 Note 28 at p. 37), Muhammad Hayat and others v. Ghulam Murtaza (PLD 1949 Lah. 53) and Habib Gul v. Shahdad Khan and others (173 1 C 594).
9. In Muhammad Baksh v. Hassan Bakhsh and others (7 P R 1912) plaintiff sued to pre-empt land held by his grandfather ; his (plaintiff's) father having assented to the sale. It was held that under section 15 of the Pre-emption Act, 1913, each heir has an independent right of pre-emption in order of succession and that consequently the plaintiff's right, being independent of his father's was not affected by his father's assent to the sale. It was further held that each agnate has by statute (i.e. The Pre-emption Act) an independent right to claim pre-emption, so that the right of one agnate cannot be extinguished by the mere fact that a nearer agnate has waived his own right.
10. Learned counsel for the petitioner, again referred to Sabz Ali Khan v. Khair Muhammad Khan (I L R 3 Lah. 48). This case, instead of favouring the petitioner, rather goes against him. In this case, the Privy Council approved Jang Bahadar Khan v. Karam Khan and others ((1908) 21 P R 132) and affirmed the view that the law conferred 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 provided inter se that the right will be determined by the order of succession, i.e. The nearer heir would exclude the more remote. In that case, namely, 21 P R 1908, the vendor had sons and brothers, who had claimed to pre--empt, and who were admittedly nearer in succession to the vendor than the plaintiff pre-emptor was, but the learned Judge held that section 15, clause (a) was applicable to the case, though the nearer heir had not sued for pre-emption. It is nowhere laid down in any case, and none was brought to our notice, that if the nearer heir does not sue still his merely being in existence will be a bar to the suit of the remote or remoter heirs and, obviously, there can be no such rule, because, nearer heirs may have their own reasons not to exercise a right of pre-emption, for example, poverty lack of funds, dislike for landed property or for that particular land, paucity of, amenities, resources, means or ability to properly cultivate, handle or develop that land, apprehension of development of hostility and bad-blood etc. With the purchaser or others. The order of succession is to be examined, therefore, only in competition with a vendee or a rival suitor, who, in fact has filed a suit and not in abstract, because, pre-emption is a statutory right to enforce which one has to file a suit and it cannot be that even if he has not filed a suit still his right is to be maintained or given effect to in his absence, without his assertion or desire, not by passing a decree in his favour but by precluding the suit of others who have exercised that right and filed a suit for its enforcement.
11. It was, then, argued that in Islamic Law all the heirs succeed jointly, and when it is stated that the right shall vest in the "persons" in order of succession who but for such sale would be entitled on the death of the vendor to inherit the land, it meant with reference to the plural word "persons" that the right vested in the whole body of heirs as a body corporate and not in an individual. Apart from the fact that plural word obviously includes singular, toe contention, even otherwise, has no merit, because, even if the whole body sued, they took the whole bargain inter se according to their respective right. From this one can then easily hold that if some or only one sued they or he took the whole bargain dividing inter se according to their right and if all sued in separate suits the result would exactly be the same. This is expressly provided for in section 17 (b) of the Act. The word "persons" really means and includes every person who in the event of the decease of the existing holder of an estate under the Personal Law would be entitled either immediately or ultimately to succeed to the whole or the portion of the estate of such person, The use o the plural word "persons", therefore, does not lead to the inference which the learned counsel wanted to draw from it and any argument based on that construction cannot be accepted.
12. 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 exclude the other and each succeeds up to 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 wilt 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. Consequently, there is no scope for introducing the concept, if it can be so termed, "propinquity of relationship". The order of succession is to be determined with reference to the Personal Law of the parties and when that hag been determined the person entitled to succeed in order of succession is the person first entitled to pre-empt. If the nearest in order of succession does not seek to pre-empt, then, the person next in succession may do so until all the heirs in succession are exhausted. A study of the history of Pre-emption Law in the Punjab will show that the present section 15, so far as relevant for the discussion of the point in hand is concerned, is based on Karim Bakhsh and others v. Jehandad Khan and others (74 P R 1906), where it was held that the expression "in the E order of relationship" which was the term then existing in section 12 (b) of the Punjab Laws Act IV of 1872 had no reference to degree of propinquity but was equivalent to "order of succession" in cases of landed property. In that case, tinder custom, the plaintiff was 4 degrees removed from the vendor' the vendee 6 degrees, but their rights of succession were identical and it was held that they had equal right to pre-emption. Then came Jhang Bahadur Khan v. Karam Khan and others on those very lines which was approved by the Privy Council in Sabz Alt Khan v. Khalr Mahomed Khan.
13. The upshot of the above discussion is that this petition has no merit and is dismissed.