AHMAD NADEEM ARSHAD, J. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have challenged the validity and legality of judgme nt and decree dated 01.03.2014 passed by learned Additional District Judge, whereby , while accepting the revisi on petition of respondents, set- aside the order dated 19.05.201 1 passed by learned trial court and rejected their plaint under Order VII Rule 11 C.P.C.
2. Brief facts, giving rise to the institution of this constitutional petition are that Haji Khadim Hussain, predecessor- in-interest of petitioners instituted suit for pre-emption regarding land measuring 56 kanal situated in Khata No.18 & 12 in mauza Jungle Jaswant Garh, Multan, being Shafi Jar and Shafi Khaleet allegedly fulfilled all the three requisite demands of pre-emption. Respondents No.1 to 4 hotly contested the suit by filing written statement on 02.09.2004. The learned trial court framed relevant issues, out of divergent pleadin gs of the parties and invited the parties to adduce their respective evidence. During the pendency of the suit, predecessor-in-interest of petitioners namely Haji Khadim Hussain has died and with permission of the court his legal heirs were brought on record.
Thereafter , respondents No.1 to 4 submitted an application under order VII Rule 11 C.P.C., for rejection of plaint.
Version of respondents was that after death of the predecessor-in-interest of petitioners, the petitioners have lost their alleged right of pre-emption as they have no personal property at the time of sale and the suit is not maintainable. Petitioners submitted their written reply . The learned trial court, after hearing learned counsel for the parties, rejected the application vide order dated 19.05.201 1. Feeling aggrieved, respondents No.1 to 4 filed revision petition, which was accepted by the learned revisional court, set-aside the order dated 19.05.201 1 passed by learned trial court and rejected the plaint of petitioners vide judgment and decree dated 01.03.2014, hence, this writ petition.
3. Learned counsel for the petitioners contended that under Section 16 of the Punjab Pre-emption Act, 1991, the right of pre-emption is transferable and inheritable to the legal heirs of the deceased plaintif f, but the learned Additional District Judge ignored this aspect of the case and passed the impugned judgment which is without any lawful justification; that right of pre-emption does not extinguish with the death of the original pre-emptor in presence of Section 16 of the Punjab Pre-emption Act, 1991; that the learned revisional court has failed to exercise its jurisdiction vested with it according to law and passed a non-speaking order without giving any plausible, cogent and convincing reasons; that law favours adjudication of cases on merits and not on mere hyper technicalities. He lastly prayed for acceptance of this writ petition and setting-aside the impugned judgment dated 01.03.2014 passed by learned revisional court.
4. Conversely , learned counsel appearing on behalf of respondents No.1 to 4 supported the impugned judgment and decree and argued that at the death of original pre-emptor , personal acts i.e. performance of fulfilling of Talbs- e-Muwathibat die with him as it was his personal act to perform demands, there fore the suit through legal heirs cannot be proceedable. He prayed for dismissal of this writ petition.
5. I have heard learned counsel for the parties and perused the record with their able assistance.
6. The most pivotal issue in this case is whether the suit of pre-emption, after the death of pre-emptor , is proceedable or not and whether his legal heirs are competent to peruse the case on behalf of their predecessor and the suit/plaint can be rejected merely on this ground under Order VII Rule 1 1 CPC.
7. In order to reach a just conclusion, first of all see the law on the subject and verdict of august Supreme Court of Pakistan and the Hon'ble High Courts.
Under Islamic Law of pre-emption there are two schools of thought. According to the "Hanafi" School of thought, the right of pre-emption is a personal right and does not survive to the pre-emptor 's heirs and on his death his right also extinguishes. The contra view is of "Shaiahs" and "Shafis" and according to them the right of pre-emption is heritable right and devolve upon the heirs of the pre-emptor after his death.
Punjab Pre-emption Act, 1913 is silent with regard to this, while in Punjab Pre-emption Act, 1991 Section 16 was introduced wherein described that if a pre-emptor has died after making any of the demands under Section 13, then his right of pre-emption transferred to his legal heirs. The august Supreme Court of Pakistan discussed this proposition in number of cases.
In Azizur-Rehman' s case , wherein the facts were that one Muham mad sold his share of land to Azizur Rehman through registered sale deed dated 25.04 .1975. Muhammad Nawaz' s father was a co-sharer and contiguous owner of the land died on 18.02.1976 and his son Muhammad Nawaz claiming to be co-sharer and contiguous owner by virtue of inheritance, pre-empted the sale on 22.04.1976. The suit was decreed, on appeal suit was dismissed and the Hon'ble High Court while deciding the revision petition restored the judgment of learned trial Court. The Hon'ble three members of Bench of august Supreme Court of Pakistan observed as follows:- "Section 11 and 12 of the N.W.F.P. Pre-e mption Act, declare the right of pre-emption to vest in certain persons at the time of sale. Therefore, a pre-emptor who had no right on the date of sale cannot improve his right after the sale by inheritance as the cause of action had already come into existence and the subsequent qualification by inheritance could not vest him with superior status after the accrual of cause of action.
Section 6 of the N.W.F.P. Pre-emption Act specifically lays down that the right of pre-emption shall exist subject to the provisions and limitations contained in the Act. Therefore, it is not possible to examine the question in the light of Mohammedan Law beyond the text of the Act itself. There is, however , a reported case Mohammedan Ismail v.
Abdul Rashid (AIR 1956 Allahabad 1) in which the question was also examined in the context of Mohammedan Law (Hanfi School), and it was held that the right of pre-emption does not survive to the heirs if the pre-emptor dies before obtaining decree in his favour . In this connection, it will be interesting to note the following observations:- "Although the right of pre-emption runs with the land and is not initially personal, it assumes a personal aspect for the purposes of enforceability in a Court of law. From the moment of the sale in favour of the stranger till the date of the decree in favour of the pre-emptor , the right can be enforced only by the perso n who was the owner of the pre- emptive property on the date of the sale of the property sought to be pre-empted. During this interval, the right is attached to the person or the owner of the pre-emptive property and he alone can enforce it in a Court of law. The1 right continues to be personal to him so long as a decree is not passed in his favou r. During this interval, the right is neither transferable nor heritable. But as soon as a decree is passed in his favour the right ceases to be personal and becomes a proprietary right fit to be transferred as well as to be inherited."
The learned counsel relied on Hassan Muhammad v. Muhammad Hussain) PLD 1977 Azad J&K 40), but I find nothing in support of the proposition that the right of pre-emption is heritable. The Court has held that under the Hanafi Law it is not heritable while under the Shafei Law the right of pre-emption is heritable and that it is permissible to follow the Shafei Law on the point. As I have already said that the right is subject to the text of the Act, the matter cannot be adjudged on this basis.
For the reasons given above, the pre-emption suit must fail as the respondent lacked the necessary qualification on the date of sale".
In Muhammad Younus' s case the Hon'ble five Member Bench of august Supreme Court of Pakistan by following the dictum of "Azizur-Rehman and others v. Muhammad Nawaz" (PLD 1988 Supreme Court 384) held that the right to pre-empt the sale was not heritable, therefore, the sale cannot be pre-empted.
In Malik Ghulam Nabi' s case where the facts were that one Sheikh Abdur Rauf purchased the suit property through different transactions in the years 1972 and 1973 from sons of Jhanda Khan and then he exchanged the land in question for a shop with Muhammad Nasim and then he sold the shop to Saleh Muhammad. Haji Kangan Khan instituted a suit for pre-emption by impleading all the above named vendees. During the pendency of suit said Haji Kangan Khan Pre-emptor died, amended plaint was filed by impleading his legal heirs. The matter was referred to Tribunal and the Tribunal recommended by majority opinion that the right of pre-emption did not survive after the death of pre-emptor and the heirs had no right of pre-emption in accorda nce with the Muslim Law of pre- emption and the suit is liable to be dismissed. The award of the Tribunal was accepted by the Assistance Commissioner , the appeal was dismissed by the Additional Commissioner so also the revision petition by Member Board of Revenue. A constitution petition was filed in the High Court of Baluchista n, which too was dismissed with the same reason. The Hon'ble five Member Bench of august Supreme Court of Pakistan observed that in British Baluchistan Civil Justice Regulation, 1896, it was contemplated that if any question regarding succession, inheritance, pre-emption etc., arises, the court has to decide the dispute in accordance with the Muslim Law in the cases where the parties are Muhammadans and that similar provisions contained in Regulation No.11 of 1913 and Regulation No.VI of 1939. The Hon'ble Supreme Court found that the right of pre-emption asserted by Haji Kangan Khan was based on the principle of Muhammadan Law and that it has to be decided accordingly and ultimately held as under:- "As in the present case, the pre-emptor had died during the pendency of the suit, therefore, according to Hanafi Law to which predominantly the Muslims of Baluchistan adhered to, the suit of the plaintiff was rightly dismissed by the Tribunals and the High Court. The plaintiffs/appellants had no right of pre-emption after the death of the pre- emptor as this right could not be inherited."
The facts of the case of Muhammad Ishaq were that Pehlwan Khan late father of the respondent instituted a suit for pre-emption on the ground that he was collateral of vendors, co-sharer in the suit land and an owner in the Deh.
During the pendency of the suit he died and an application for impleading his legal heirs was filed. Muhammad Sadiq, one of the sons of Pehlwan Khan filed another application that he be allowe d to pursue the suit, which was allowed by consent. The suit was decreed, appeal against it was dismissed and the Regular Second Appeal also met the same fate. The Honourable two Member Bench of august Supreme Court of Pakistan while considering the question of heritability of right of pre-emption, in para 1 1 of the judgment observed in the following manner: - "Reading through above passage will reveal that learned Single Judge in deciding this case was of the view that the case of Aziz-ur -Rehman and others (supra) could not made applicable and did not follow the same for the reasons that the facts and circumstances of the case of Aziz-ur -Rehman and others (supra) were distinguishable and that the principles of Hanfi Law were not relied upon in the case. Evidently , learned Single Judge did not give weight to the pivotal/relevant point determined in that case i.e. that the pre-emptor , qualification on the date of sale and that subsequent qualification by inheritance could not vest him with superior status after the accrual.
Respondent' s father Pehlwan, the original pre-emptor , as held in the case of Chhjju and others (supra) as well,2 3 4 could not establish his subsisting title on the date of decree palpably continue to have the feeble and predatory right of pre-emption enforced. Be that as it may, in case of Muhammad Younus (Supra), wherein the point for consideration (in both the appeals) was "whether the appellant who did not possess the superior right of pre- emption at the time of sales but subsequently acquired this right by inheritance, could avail of his improved status to pre-empt the sales of the disputed properties. In other words, the question was "whether the right of pre-emption is heritable". Justice Muhammad Haleem, Chief Justice (as then he was) speaking for a five Member Bench, observed in unequivocal terms that 'this question came up for consideration in Aziz-ur-Rehman and others v.
Muhammad Nawaz, PLD 1988 Supreme Court 384, and it was held that the right to pre-empt the sale was not heritable, therefore, the sale cannot be pre-empted". Learned Judge in chambers did not at all, discuss in his judgment as to what principle was laid down in that case. Accordingly , we do not feel ourselves inclined to agree with Mr. Paracha that learned Single Judge of the Lahore High Court correctly interpreted the cited cases i.e. Aziz- ur-Rehman and others and Muhammad Younas (supra). He failed to follow the principles laid down therein."
The Court also came to the conclusion that in terms of order XXII, C.P.C., the legal representative of deceased pre- emptor are merely to continue the suit for considering the rights and disabilities of original party and that as his demise no such right subsisted in the legal representative.
The facts of Nazir Hussain' s case were that Iqbal sold a piece of land to Mushtaq and Bashir through registered sale deed and Ghulam Muhammad pre-e mpted the same through suit for pre-emption. Ghulam Muhammad died during the pendency of the suit, whereupon his three sons and three daughters stepped in as plaintif fs. The suit was decreed, the appeal was dismissed but the High Court accepted the Regular Second Appeal and dismissed the suit on the ground that right of pre-emption was a personal right, which did not survive the death of pre-emptor and if the pre-emptor had died before the said suit was decreed then the suit could not be continued by the heirs of pre-emptor unless the heirs themselves were possessed of right of pre-emption independent from that of the deceased pre-emptor . The Honourable three Member Bench of the august Supreme Court of Pakistan came to the following conclusion: - "As has been noticed above, the learned counsel for the appellants had questioned-the impugned judgment of the High Court submitting that the facts of Malik Ghulam Nabi' s case ibid were distinguishable from the facts and circumstances of the present case on account of the relevant law in the Province of Balochistan being un codified and further that the judgment of this court in Khuda Yar's case ibid supported his stance. We asked the learned counsel to point out any provision or principle of law which had prevailed with the three Hon'ble Members Bench of this court deciding the said Khuda Yar's case on the strength of which it had been declared that in the Province of Punjab the right to sue in a pre-emption matter , survived the death of the pre-emptor . He could not offer any satisfactory answer to the said query and submitted only that the law of pre-emption in the Province of Punjab was a codified law. We then asked him to point out any provision in the law of pre-emption as existing in the Province of Punjab i.e. the Punjab Pre-emption Act of 1913 which was the relevant law at the time when the sale in question had been pre-empted by Ghulam Muhammad and which would have declared that the right to claim possession though pre-emption would survive the pre-emptor but he could not do the same and rightly so because no provision existed in the said Act of 1913 which had so provided. This being so, the matter in issue i.e. the right of pre-emption being heritable, the situation in the Province of Punjab was at par with the one obtaining in Balochistan because to the said extent even in the Province of Punjab no codified law existed. As has been noticed above, a five Member Bench of this Court in Ghulam Nabi' s case ; another five Member Bench of this court in the case of Muhammad Younas v. Khushal (1989 SCMR 69) and the two Members Bench of this Court in the case of Muhammad Ishaq, had declared that the right of pre-emption was not a heritable right and got extinguished with the death of the pre- emptor . As has been observed above, to the said extent in issue, the case of pre-emptions suits in the Province of Punjab was at par with the cases arising out of the Province of Balochistan. Consequently , we hold that no exception could be taken to the impugned judgment of the Lahore High Court."
In Muhammad Yousaf alias Yousaf Ali's case the august Supreme Court of Pakistan, Honourable two Member Bench while discussing the above referred supra cases held that the legal heirs will have no right to continue with the pre-emption suit on the death of pre-emptor who died during the pendency of pre-emption suit. Facts of the5 6 case were that Muhammad Yousaf had instituted a suit for pre-emption on 05.12.1978 against Talib Hussain etc., which was ex-parte decreed on 25.09.1981, but that decree was set aside in appeal and the matter was remanded to the trial court for re-trial. The trial court dismissed the suit vide judgment and decree dated 07.01.1989 on the ground that the petitioners have failed to mention talbs in accordance with fresh law, it was upheld in appeal, however , in revision this court while setting aside the judgments and decrees of learned courts below remanded the matter to the trial court for deciding afresh in accordance with the Punjab Pre-emption Act, 1913 and not in accordance with the Punjab Pre-emption Act, 1991. The learned trial Court decreed the suit and on appeal the judgment and decree of learned trial court was set aside and the suit was dismissed which was maintained by this Court while dismissing the revision petition. The two Members Honourable Supreme Court Bench while discussing the point whether the suit for pre-emption on the demise of pre-emptor could be continued by his legal heirs held as under: - 14 "Having discussed the case-law referr ed to above, we find that on the very point as to whether the suit of pre- emption on the demise of the pre-emptor could not be continued by his legal heirs, such question has been adverted to by five Member Bench of this Court twice once in the case of Muhammad Younus and secondly in the case of Malik Ghulam Nabi, where it was categorically held that in the absence of codified law on the subject, the principle of Islamic Law will govern the case, which does not provide pre-emption right to be inheritable. This very aspect of the case was directly considered in the case of Nazir Hussain, where it was noted that there are two five Member Bench cases in the field directly dealing with the question of heritability of right of pre-emption by the legal heirs of the pre-emptor who dies during the pendency of the suit and it was noted that on principle of Islamic Law, there was no heritability of such right and that being a law in the field, the same was followed and the question was answered accordingly .
15. Before us also only question of herita bility of right of pre-emption by the legal heirs of the pre-emptor who died during the pendency of the pre-emption suit is under consideration and the same in terms of the law laid down in the case of Muhammad Younus, Malik Ghulam Nabi and Nazir Hussain stands settled that the legal heirs will have no right to continue with the pre-emption suit on the death of pre-emptor during the pendency of pre-emption suit."
This Court also deal with this proposition in number of cases. In Mst. Sooban Bibi's case where sale of two parcels of land, effected through mutation No.1996 attested on 11.01.1986 were sought to be pre-empted by the predecessor-in-interest of the petitioners by filing two suits under Islamic Law of pre-emption as the suits were instituted on 08.01.1987 i.e. during the interregnum period when the Punjab Pre-emption Act, 1913 had already been taken off the statute book and neither any Ordinance nor any Act dealing with the right of pre-emption was in field, therefore, the two suits as filed shall be governed by the Islamic Law. This court while dealing with the proposition held as under: - "The other question has also been answered in the case of Malik Ghulam Nabi and others noted supra for it is also ruled that the death of pre emptor during the pendency of the suit extinguishes his right to pre-empt and the suit cannot be prosecuted by the heirs of the deceased. Learned counsel for the respondents very aptly relied on the famous commentary is on the Islamic Law such as "Hedaya" by Charles Hamilton, compilation of "Fatawa-i- Alamgiri" "Durul Mukhtar" and "Bahar -e-Shariat" by Maulan, Amjad Ali for it is ordained in all the commentaries aforenoted that the death of pre-emptor extinguishes his right and that right to pre-empt does not devolve upon his heirs. The contra view of "Shiahs" and "Shafis" have also been referred to but the rationale for following the view as expounded by Hanafi School of Thought may be reproduced below for the sake of its wisdom. Charles Hamilton in his famous book "Hedaya" observes as under:-- "By the death of Shafee before the Kazee 's decree .--If the Shafee dies, his right of Shaffa becomes extinct. Shafei maintains that his right of Shaffa is hereditary . -The compiler of the Hedaya remar ks that this difference of opinion obtains only where the Shafee dies after the sale, but previous to the Kazcc decreeing him the Shaffa: for if he dies after the Kazee has decreed his Shaffa, without having paid the price, or obtained possession of the property sold, his right devolves to his heirs, who becom e liable for the price. The argument of our doctor upon the point in which they differ from Shafei is, that the death of the Shafee extinguished his right in the property from which he derived his privilege of Shaffa; and the property did not devolve to his heirs until after the sale. Besides, it is an express7 condition of Shaffa, that a man be firmly possessed of the property from which he derives his right of Shaffa at the time when the subject of it is sold, a condition which does not hold on the part of the heirs: It is, moreover , a condition that the property of the Shafee remains firth until the decree of the Kazee be passed; and as this does not hold on the part of the deceased Shafee , the Shaffe is therefore, not established with respect to any one of his descendants, because of the failure of its conditions:"
Syed Amir Ali has not gone any further than quoting, the two views as under:-- "According to the Hanafi Law the right of pre-emption is a personal right and does not survive to the pre-emptor's heirs. Of course, if they are themselves entitled to claim the right they stand on a different footing.
Thus the right of pre-emption is rendered void by operation of law when the pre-emptor dies after making the necessary demands, but before he has taken over the property which forms the subject- matter of the dispute, or before he has obtained a decree from the Court. (2) But it is not rendered void by the death of the purchaser and the pre-emptor can, therefore assert his right and taken the property from, his heirs.
According to the Shafeis and the Shiahs the right of pre-emption is heritable right and devolve upon the heirs of the pre-emptor ."
Similarly the other compiler of classic law of Islam appears to have taken the same view as that narrated by Charles Hamilton in Hedaya, which has been ultimately approved by the Honourable Supreme Court of Pakistan in the case of Malik Ghulam Nabi and others noted supra. Needless to add that there is age old presumption that every Muslim is presumed to be Hanafi unless proved otherwise. No such exception has been pleaded or proved in the case.
It is manifest from the discussion noted above that the pre-emptor having died before any decree could be passed in his favour , his right to pre empt extinguished for it was not heritable under the Islamic Law, therefore, the total exercise of taking of this case twice to this Court was absolutely futile. The suit as prosecuted by the heirs of the said pre-emptor right from the stage prior to the decree was an exercise in futility which should have been clinched on the death of pre-emptor ."
The Court in Noor 's case while dealing with inherit ability and transferability of right of pre-emption in a suit for pre- emption which was instituted with regard to suit property purchased through mutation No.221 attested on 26.01.1974 held as under: - "Mst. Sattan instituted a suit for possession through pre-emption. During the pendency of this R.S.A. No.207 of 2004 pre-emptor/plaintiff, Mst. Sattan, died and as a result thereof her legal heirs were impleaded as respondents.
In view of this fact, learned counsel for the appellants raised a preliminary object ion that the second appeal is a continuation of the suit and, therefore, right of pre-emption which was un-herita ble stood extinguished with the death of pre-emptor and her legal heirs though brought on record after her death would be disentitled to continue with the case. I am afraid this preliminary objection has no force. The right of pre-emption runs with the land and is not personal initially; it turns out to be personal for the purpose of its enforceability in a Court of law, right from time of sale of the property till the date of decree in favour of the pre-emptor . In other words, the right optimizes to be personal to a pre-emptor until a decree is passed in his favour and, during this interregnum; this right is neither transferable nor inheritable. In such a situation if the pre-emptor dies before obtaining a decree in his favour in the Trial Court or as the case may be, the appellate or revisional court, his right of pre-emption shall remain exclusively personal and shall not survive to his heir. But no sooner is a decree passed in favour of the pre-emptor then the right becomes a proprietary one and capable not only to be transferred but to be inherited as well."
In Muhammad Yousaf alias Yousaf Ali'scase this Court held as under: - "So far as the said other contention of the learned counsel is concerned, I do find that the Honourable Supreme Court was pleased to allow the appeal against the judgment reported as 2000 MLD 588 Muhammad Ishaq v.
Muhammad Sadiq in the case reported as 2007 SCMR 1478 and their lordships concluded that survival of right of pre-emption in the case of death of pre-em ptor before the decree has a reference to an independent right vesting in the L.Rs of the deceased pre-emptor . In the present case although the suit was initially decreed on 25.09.1981 but Muhammad Yousaf died on 23.3.1981. In the absence of any plea that the petitioners/L.Rs had other land apart8 9 from one inherited by them from their father and the said dictum is squarely attracted. No other point has been raised. Civil Revision is accordingly dismissed but without any order as to costs."
This judgment was challenged before the august Supreme Court of Pakistan, which was up-held by the august Supreme Court of Pakistan in a reported judgment which is mentioned supra as Muhammad Yousaf alias Yousaf Ali's case .
In Sheikh Ghulam Qasim' s case learned Peshawar High Court in its reported judgment held as under:- "One another important event, detrimental to the interest of petitioner , happened during trial in the lower Court, is the death of original pre-emptor Sheikh Ghulam Qasim. From the record of the trial Court it is not ascertainable that when plaintiff Sheikh Ghulam Qasim had expired but memorandum of appeal reveals that before pronouncing the judgment by the trial Court he has passed away . The Apex Court in a very recent judgment delivered in the case of Nazir Hussain v. Mushtaq Ahmad PLD 2010 Supreme Court 1048 followed the earlier judgments delivered in the cases of Muhammad Younas v. Khushal 1989 SCMR 69, Malik Ghulam Nabi and others v. Member Board of Revenue and others PLD 1990 Supreme Court 1043 and Muhammad Ishaq v. Muhammad Sadiq 2007 SCMR 1478 , has been ruled that pre-emptor who had no right on the date of sale, cannot improve his right after the sale by inheritance, as the cause of action had already come into existence and subsequent qualification by inheritance could not vest him with superior status after the accrual of cause of action, the right of pre-emption not being heritable. Therefore, after the death of pre-emptor Sheikh Ghulam Qasim petitioners have no superior right of pre-emption against the respondents".
Contrary to that the Full Bench of High Court of West Pakistan, Lahore Bench also deals with this proposition in Allah Dad's case . The facts of that case were that Allah Dad had purchased occupancy right in the suit property from Allah Ditta, which was pre-empted by Nek Muhammad by bringing a suit for pre-emption on the basis of his relationship with the vendor and and also on the ground that he as a co-sharer in joint Khata. During the pendency of the suit in the trial Court pre-emptor Nek Muhammad died and his legal representatives were brought on record.
The suit was dismissed by the trial court on the ground that pre-emptor had failed to establish the right of pre- emption. Such decision of the trial Court was reversed in appeal and the suit was decreed. In the cited case, which arises from Regular Second Appeal, the question regarding the legal heirs being competent to maintain and continue the suit in the face of the fact that original pre-emptor having died during the pendency of the pre-emption suit, was taken up. Initially the Regular Second Appeal came up before Mr. Justice Sharif (as his lordship then was,) who noted that the right of pre-emption is heritable like any other property and accrues to the heirs of the deceased pre-emptor being question of importance desired that it should be authoritatively answered and thus, referred the case to the Chief Justice for reference to a larger Bench. It appears that the matter was referred to the Division Bench of Their lordships B.Z. Kaikaus and Qadeeruddin Ahmad, JJ. His lordship B.Z.Kaikaus, J., came to the conclusion that right of pre-emption devolves on the heirs subject to the condition that the heirs too have 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 nearer heir of the vendor than the vendee and thus dismissed the appeal. His lordship Qadeeruddin Ahmad, J., however , took a different view and came to the conclusion that in the area, which was formerly the Punjab, the right of pre-emption is neither heritable nor does it survive the death of a pre-emptor and the suit abates on the death of the pre-emptor , if the death takes place during the pendency of the suit, 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. In view of disagreement and in the meanwhile one I.P.A. No.27 of 1958, having also come before the court, a Full Bench was constituted in which his lordship M.R. Kayani, C.J., constituted the Bench of himself and B.Z.Kaikaus and Qadeeruddin Ahmad, JJ.. The matter was decided by majority of two to one and it was found that the right of pre-emption was heritable.
The Honourable Supreme Court of Pakistan in a review case of "Mst. Zainab Khatoon and others v. Tahir Mehmood and others , (Civil Revision Petition No.43 of 1991 in Civil Appeal No.378 of 1988) has approved the opinion in Re Allah Dad though only distinguishing the case of Azizur Rehman v. Muhammad Nawaz. It came to transpire that the relevant civil appeal was allowed on 04.02.1991. A review petition was filed which was decided on 05.05.1991, the relevant para No.3 to 5 are reproduced herein below:-10 11 "(3) Notice in this case was given to the respondents who in spite of service remained absent. The learned counsel for the petitioners contended that the authority relied upon by this Court reported in PLD 1988 SC 384 is clearly distinguishable in that in the precedent case the pre-emptor had died before the institution of suit and his legal heirs who had no right of pre-emption at the time of sale had filed the suit on the basis of right of original pre-emptor , wherein in the instant case the suit was filed by the predecessor -in-interest of the petitioners who had the superior right of pre-emption and it was his right which had to be asserted, of course, throu gh his legal representatives. He further submitted that in the Punjab unlike the other provinces the right of pre-emption is regulated by the Statute, it has nothing to do with the Muhammadan Law of Pe-emption. In the Punjab Pre-emption Act under sections 15 & 16 the right of legal representative is recognized as having a vested right to keep the right alive and in existence till the date of decree. Reliance in this respe ct was placed by him in the case of Allah Dad and another v. Hukam Dad and others (PLD 1960(W .P) Lahore 900 and Sheikh Inayat Ali v. Ghulam Muhammad and others (1976 SCMR 121 ).
(4) After hearing the learned counsel for the petitioner , we think that submissions made by him must prevail. The case, as per order under review , has not been correctly decided. Under the Punjab Pre-emption Act the right to pre- empt a sale is not only heritable but it having been accrued to the deceased can be successfully asserted by his legal representatives. The authorities relied upon by the learned counsel for the petitioners are fully applicable to the case in hand.
(S) As a result of above, we accept the review petition and dismissed civil Appeal No.378 of 1988 with no order as to costs."
In a case of Khuda Yar, the Honourable three Member Bench of august Supreme Court of Pakistan also deal with the proposition. The relevant facts of the case were that Muhammad Yar sold land measuring 10 kanals to his nephew/son-in-law Ghulam Muhammad on 29.08.1967. Mst. Zeenat Khatoon, daughter of the vendor and wife of the vendee, pre-empted the sale and so did Khuda Yar, a brother of the vendor , the two suits coming to be consolidated and tried together . During the pendency Khuda Yar died and his legal representatives were brought on record. The trial court dismissed the suit of Mst. Zeenat Khatoon but decreed that of the successor of Khuda Yar on 29.10.1969. The two decrees were challenged in appeal but both the appeals were dismissed on 04.03.1970.
This led to filing of two separate regular second appeals before the High Court where the appeal of Mst. Zeenat Khatoon was dismissed but that of Ghulam Muhammad her husband and vendee was allowed on the ground that upon the death of Khuda Yar, his heirs and Ghulam Muhammad, the vendee, had equal rights and, therefore, the former could not enforce the claim of pre-emption.
It was observed by the Honourable three Member Bench that:- "The correct position, in our opinion, is that if a pre-emption suit was duly filed and the pre-emptor expired during its pendency , all the legal heirs of the deceased pre-emptor should entitled to be impleaded because, the right to sue, being heritable, obviously survives in favour of all of them, the other conditions imposed as seen, being redundant.
This is precisely the effect of the current law also namely , the Punjab Pre-emption Act, 1991, which per section 16 thereof, goes indeed, as step further , postulating that where a pre-emptor dies after making any of the demands under section 13, the right of pre-emption shall stand transferred to his legal heirs. Much as in the N.W.F.P. under the current dispensation the right, however , still remains otherwise non-transferable and indivisible."
And finally concluded that: "Our conclusion, therefore, is that under the Punjab Pre-emption Act, 1913, the right of pre-emption on, after due suit for the same has been instituted, was found judicially to be heritable but not transferable. Such was a further development of the view expressed in the Full Bench case of Faqir Ali Shah v. Ram Kishin, 133 PR 1907 , where the heirs and successors of a deceased landholder in a village succeeded in pre-empting successive sales even though neither their predecessor land made any T alab nor instituted the relevant suit in his lifetime."
8. In all the cases discusses supra, the proposition was that all the suits were instituted prior to promulgation of The Punjab Pre-emption Act, 1991 and were squarely covered by the provisions of the Punjab Pre-emption Act, 1913 and that such Act did not contain any specific provision providing for the succession of the right of pre-emption during the pendency of the pre-emption suit by the legal heirs of deceased pre-emptor and that provision to this12 effect was for the first time introduced by virtue of section 16 in the Punjab Pre-emption Act, 1991 and such provision in the present case has application. The section 16 of the Act, ibid reads as under:- Section 16 Death of Pre-emptor :--Where a pre-emptor has died after making any of the demands under Article 13, his right of pre-emption shall stand transferred to his legal heirs."
9. The Federal Shariat Court of Pakistan examined the provision of Section 16 of the Punjab Pre-emption Act, 1991, whether that provision of law is repugnant to the injunction of Islam or not? In Muhammad Ismail Qureshi' s case while answering the question held that provision of Section 16 is not repugnant to the injunction of Islam in the following manner: - "Section 16, as challenged, reads as under:-- "16 Death of pre-emptor .----Where a pre-emptor dies after making any of the demands under Section 13, the right of pre-emption shall stand transferred to his legal heirs."
It has been challenged almost by all the petitioners that according to Hanafi school of Fiqh there is a consensus of opinion that if the pre-emptor dies after making any of the Talabs, his right is not heritable because the pre-emptor was not an owner of the property at the time of his death, except in the case of his right having been decreed by the court before his death. Reference was made to several quotations from the books of Hanafi Fiqh: but no verse of the Holy Qur'an or Sunnah of the Holy Prophet has been quated in support thereof. On the other hand, the Maliki, Shafi'I, Hambali, Zahiri and Shi'I schools of fiqh hold otherwise. I have dealt with this subject in detail in my book 'Majmoo'a-i-Qawanin-i-Islam, published by Islamic Research Institute, Islamabad, 1981 (Vol.VI,pp.2276 to 2281, reproduced as under:-- The above difference of opinion between the Hanfai schools on the one hand and the other schools of fiqh on the other is based on the question whether the right of pre-emption is a personal right or a right in property . The Hanafi school of fiqh considers the right of pre-e mption to be a personal right which beco mes extinct on the death of the pre-emptor unless the said right has been confirmed by a decree of the Court, whereas according to the other schools, this right relates to property . The Legislature seems to have approved the opinion of the other schools of fiqh, as also preferred by the council of the Islamic Ideology in its draft law of pre-emption, approved by the Federal Government and sent to the four provinces as a model."
10. The only case law available with regard to the proposition in the light of section 16 of the Punjab Pre-emption Act, 1991 is Muzaf far Hussain' s case This court while keeping in view the decision of august Supreme Court of Pakistan in Muhammad Ishaq' scase which was decided in the light of Punjab Pre-emption Act (I of 1913) wherein it was held (at the cost of repetition) " A pre-emptor who had no right on the date of sale could not improve his right after the sale by inheritance as the cause of action had already come into existence and the subsequent qualification by inheritance could not vest him with superior status after the actual cause of action", held in the following manner: - "The net result of the above discussion is that the legal heirs of the deceased plaintiff/pre-emptor had no right on the date of sale and thereafter to pre-empt the disputed property by inheritance and they could not improve their right after the sale as the cause of action already came into existence. Sabir Hussa in while appearing as P.W.4 has made a statement about Talbs. His name does not figure in the plaint as according to the original pre-emptor Diwan Ali deceased, Muhammad Yasin informed him about the sale transaction and at that time Nazar Muhammad son of Muhammad Khan and Muhammad Iqbal son of Abdul Hakeem were present and in their presence, he made Talb- e-Muwathibat and subsequently , Talb-i-Is hahad. Since his name was not mentioned in the plaint when his father allegedly came to know about the sale and made Talb-e-Muwathibat, therefore, he made improvements during the course of evidence and as stated above, he cannot be allowed to go beyond the pleadings."
11. Rights of pre-emption were governed by statutory law in the Province of Punjab and N.W.F.P., in shape of the Punjab Pre-emption Act, 1913 and the North-W est Frontier Province Pre-emption Act, 1950, whereas in Baluchistan, such rights are to be decided in accordance with Muslim law. Such status did not postulate pre- emption right to be heritable and that the same, under the statutory dispensation, was a mere personal right, co- extensive only with the life span of the pre-emptor . According to 'Hanfi' School of thought, right to sue with regard to pre-emption extinguishes after the death of the pre-emptor and the suit cannot be prosecuted by the heirs of the13 14.
15 deceased. In Pakistan every Muslim presumes to be 'Hanfi Muslim' except pleaded contrary to it. The august Supreme Court of Pakistan and Hon'ble High Courts, keeping in view above mentioned facts, frequently held that pre-emptive right is not inheritable and the legal heirs will have no right to continue with the pre-emption suit on the death of pre-emptor during the pendency of pre-emption suit.
The position altogether altered with the promulgation of the Punjab Pre-emption Act, 1991 and North-W est Frontier Province Pre-emption Act, 1987 which repealed the past law and introduced section 16. Per section 16 thereof, makes the right of pre-emption heritable in all circumstances where a pre-emptor had died after making any of the demands contemplated by section 13 of the same Act. The Federal Shariat Court also declared that the provision of Section 16 is not repugnant to the injunction of Islam. Therefore, in presence of Section 16, right of pre-emption is heritable.
12. The proposition in the present case is that the predecessor of the petitioners namely Haji Khadim Hussain instituted the suit for pre-emption with regard to land measuring 56 kanal which was sold through registered sale deed No.715 dated 04.12.2002. The suit was hotly contested by the respondents by challenging the validity of suit by filing written statement. During the pendency of the suit said pre-emptor Haji Khadim Hussian has passed away and his legal heirs were impleaded in the array of plaintif fs. The respondents moved an application for rejection of the plaint under Order VII Rule 11 CPC, merely on the ground that pre-emptor has been died before the decision of the case and his legal heirs have no land at the time of institution of the suit, therefore, they have no right of pre- emption and the suit is not proceedable, which was dismissed by the learned trial court after taking its reply .
Feeling aggrieved, the respondents filed revision petition which was allowed vide impugned judgment and decree and resultantly while setting aside the judgment/order of the learned trial court rejected the plaint under Order VII Rule 1 1 CPC. Before discussing further it is appropriate to read Order VII Rule 1 1 CPC.
"Rejection of plaint .--The plaint shall be rejected in the following cases:-
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is under -valued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred by any law ."
13. Under Order VII Rule 11 C.P.C. a plaint can be rejected where it does not disclose a cause of action; where the relief claimed is under-valued, and the plaintif f on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; where the relief claimed is properly valued but the plaint if written upon paper insuf ficiently stamped and the plaintif f on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the court, fails to do so and where the suit appears from the statement in the plaint to be barred by any law. From perusal of that rule it appears that the respondents sought their remedy on clause (d), that the plaint is not proceedable and barred by law. The plaint surely discloses cause of action at the time of institution of the suit. To invoke the clause (d) of Order VII Rule 11, C.P.C. having to see whether the suit appears from the statement in the plaint to be barred by law. In presence of section 16 of the Punjab Pre-emption Act, 1991 which described that where a pre-emptor dies after making any of the demands under section 13, the right of pre-emption shall transferred to his legal heirs, it cannot be said that as soon the pre-emptor dies, his right of pre-emption also extinguish and as the legal heirs did not possess any independent right of pre-em ption being land less at the time of institution, therefore, their suit for pre-emption is not proceedable. The plaint is not barred by any law and cannot be rejected merely on the ground of death of pre-emption.
14. The learned revisional Court has went wrong in appreciating the law that pre-emptor having died during the pendency of the suit and his right of pre-emption was not heritable by his legal heirs and they could not have maintained and continued the suit, therefore, their suit is barred by law. The findings of the learned revisional court is not sustainable and hereby reversed.
15. For the foregoing discussion, this writ petition is allowed . Resultantly , impugned order dated 01.03.2014 passed by learned Revisional Court is, hereby set-aside and reversed and suit of the petitioners is deemed to be pending before the learned trial court, who shall decide it after observing all codal formalities in accordance with law. Parties are left to bear their own costs. Azizur Rehman & others vs. Muhammad Nawaz ( PLD 1988 SC 384 ) Muhammad Younas v . Khushal" ( 1989 SCMR 69 ) Malik GHULAM NABI and others versus MEMBER III, BOARD OF REVENUE and 5 others( PLD 1990 SC 1043 ) Muhammad Ishaq v . Muhammad Sadiq ( 2007 SCMR 1478 ). Nazir Hussain and others vs. Mushtaq Ahmad through Legal Heirs and othe rs(PLD 2010 Supreme Court 1048) Muhammad Yousaf alias Yousaf Ali through L.Rs. and others vs. Talib Hussa in and others (2012 SCMR 1185) Mst. Sooban Bibi and 3 others vs. Mst. Khatoon and 3 others( PLD 2001 Lahore 245 ). Noor and others vs. Mst. Sattan through Legal Representatives and others( PLD 2013 Lahore 30 ) Yousaf Ali alias Yousaf Ali through L.Rs. vs. T alib Hussain and others ( 2008 YLR 2289 ) Sh.Ghulam Qasim through Legal heirs and others vs. Abdullah Khan and 3 others ( 2011 YLR 1357 ) Allah Dad and another v . Hakam Dad and others (PLD 1960 (W .P) Lahore 900) Khuda Yar through Leal Heirs and 10 others vs. Ghulam Muhammad and another ( 1999 SCMR 1808 ) Muhammad Ismail Qureshi and others vs. government of Punjab and others (PLD 1991 Federal Shariat Court 80) Muzaf far Hussain vs. Mst. Bivi and 7 others ( PLD 2012 Lahore 12 ) Muhammad Ishaq v . Muhammad Sadiq ( 2007 SCMR 1478 )